[This article is written by Sharnam Agarwal who is a student at National Law Institute University, Bhopal]

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Introduction

Conjugal visitation rights for inmates have long been a topic of controversy and discussion on a global scale. A recent decision by the Delhi High Court, in Kundan Singh v. Govt Of NCT Of Delhi wherein, the court has allowed a plea for conjugal visits despite the petitioner’s conviction in serious offences has sparked similar debates. In 2023, a Public Interest Litigation was also filed in the Delhi High Court, seeking the allowance of conjugal visits, in which the court sought the government’s stand. The Indian Judiciary has repeatedly faced the issue of whether to grant conjugal visitation rights to prisoners. Previous cases, such as the Jasvir Singh v State of Punjab, have tried to evaluate the feasibility of allowing conjugal visits for prisoners.

This article attempts to understand conjugal rights for jail inmates through an in-depth analysis of the Indian and international legislative framework regarding conjugal visits for prisoners. It considers the advantages and challenges of allowing conjugal visits and its traces under the constitutional framework. The objective is to galvanise direct legislative attention on this matter and examine whether conjugal visits can be claimed as a matter of right in light of security, safety, and other challenges of prison governance.

Understanding Conjugal Rights for Prisoners

“Conjugal rights” are the recognised, innate rights that married couples have in society. These rights are the inmates’ sexual rights. Conjugal visits and conjugal rights differ significantly because Conjugal Visitation Rights permit spouses and prisoners to meet in privacy and engage in sexual relations. The rights of the couple to find an intimate association, a fundamental right under Article 19(1)(c), includes having a family and enjoying personal relationships, fall under the ambit of conjugal rights. While parole and furlough are often considered alternatives to conjugal visits, they differ significantly. Firstly, Conjugal visits are easier to obtain, shorter, and mainly focused on family relationships. Secondly, compared to parole and furlough, conjugal visits are short and pose fewer security threats. Thirdly, conjugal visits require less vigilance, reducing administrative burden. Moreover, parole and furlough are only accessible for convicted prisoners. In India, over 76% of the prison population is made up of undertrials. This means parole and furlough cannot replace the need for conjugal visits.

Indian Perspective Regarding Prisoner’s Conjugal Rights

Conjugal visits in jails are a relatively new idea in India. The Prisons Act of 1894, along with state prison rules, regulates the Indian prison system. The Modern Prison Manuals of 2016 and 2023  deal with parole and furlough to improve familial ties, but they remain silent about conjugal visits. The Hon’ble Supreme Court upholds prisoner’s fundamental rights, including the right to life, even during incarceration. In Re-Inhuman Conditions in 1382 Prisons v State of Assam, referring to the Rules 58 to 63 Nelson Mandela Rules, the Court emphasises the importance of prisoners maintaining contact with the outside world, including family and spouses. As of the now, Indian prisons have no unified laws governing inmate conjugal visits. The debate on this issue started following the judgment of Punjab and Haryana High Court in Jasvir Singh v State of Punjab where the court ruled that the Right to life and Personal Liberty includes the right of inmates to have conjugal visits. The Supreme Court stressed the importance of conjugal visits, citing emotional distress from its denial during incarceration. Patna High Court also allowed conjugal visits for artificial insemination, citing Article 21 of the Constitution. Post Jasvir Singh Punjab and Haryana amended their prison regulations to allow conjugal visits.

International Perspective

In contrast to India, many countries worldwide permit conjugal visits for inmates. Several states have passed laws allowing convicts to visit with their spouses in the United States. California launched its program for conjugal visits in 1968 and is currently available to LGBTQIA+ couples as well. New Mexico, Washington, and New York are also promoting conjugal visitation programs. Canada, through its dedicated law, permits monthly thirty-minute visits for inmates sentenced to two years or more. Spain, Russia, France, and Brazil allow conjugal visits managed by prison administration. Moreover, it has also found a place in some international conventions. Article 8 of the European Convention on Human Rights which guarantees the right to respect private and family life, regulates conjugal visits in Europe. ECHR, In Dickson v. The United Kingdom, ruled that refusal of conjugal visits to prisoners violates their rights secured in Article 8. Rule 58(2) of the United Nations Standard Minimum Rules for the Treatment of Prisoners specifically advocates for allowing conjugal visits for inmates.

Benefits Associated with Conjugal Visits

The Indian prison system is based on the reformative theory of the offender. Allowing such visits can be instrumental in the reformation of the criminals. Article 10 (3) of the International Covenant of Civil and Political Rights (1966) to, which India has ratified, mandates that a prison system should be based on the reformation of a criminal. Recidivism is a big problem with the prison system, in Indian jails sexual violence is flourishing rampantly and most of such incidents go unreported, prisons face risks of (Human Immunodeficiency Virus) due to unsafe sex practices among inmates, with infection likelihood six times higher than the general population, as per (Joint United Nations Programme on HIV/AIDS). Studies indicate that allowing conjugal visits can lower the risk of recidivism by 13% and felony reconvictions by 25%. Conjugal visits are also a key in curbing sexual violence, a study by Florida State University revealed they can reduce sexual violence in jails by 75%. Conjugal visits privileges while in prison, are a response to HIV and Tuberculosis in prisons. Both the Madras and Bombay High Court have recognised that denying conjugal rights to inmates is a major cause of  HIV in jails. Restricting conjugal visits not only harms inmates but also penalises their innocent spouses, violating their reproductive rights enshrined under Article 21 of the constitution. Through such visits, inmates can preserve their familial ties too. Supreme Court has said, that conjugal visits pacify inmates and lower suicide risk, also reducing tension resulting from sexual deprivation. Thus, allowing conjugal visits to prisoners has many potential benefits.

Challenges in Allowing Conjugal Visits

Beyond the benefits linked with conjugal visits for prisoners, several challenges must be acknowledged, with the absence of nationwide legislation in India being a primary concern. Allowing courts to decide on conjugal visits might be perceived as an interference in the legislative domain undermining separation of power because prisons fall under the state jurisdiction. There are at least three arguments for not having a policy to allow conjugal visits to prisoners (a) Imprisonment and conjugal visits are incompatible and inmates should not start families. (b) Allowing conjugal visits to prisoners raises serious public concerns. (c) Allowing conjugal visits to inmates could undermine security and deterrent measures. Additionally, Indian jails face overcrowding, financial strain, and infrastructure inadequacies, so allowing conjugal visits may impose an additional financial and administrative burden. Though Article 21 guarantees personal liberties, it’s not absolute and permits restrictions by law during incarceration. Critics contend conjugal visits pose security risks, increase contraband risk, and strain prison resources, their refusal may prevent disorder and crime. In light of these considerations, the debate on implementing a policy permitting conjugal visits for prisoners remains multifaceted and requires careful deliberation.

Conclusion and Way Forward

n considering the contentious issue of conjugal visitation rights for incarcerated prisoners in India, a balanced and nuanced approach is essential to weigh potential advantages and challenges. In India, prisoner’s conjugal rights are in a nascent stage, with developing jurisprudence. As per the ruling in the Francis Coralie Mulin v. the Administrator, Union Territory of Delhi, the prisoner has all the fundamental rights and other legal rights akin to those of free persons save those which are inconsistent with incarceration; thus, denial of conjugal visits violate their right to found intimate association which is a part of Article 19(1)(c) and, the right to have a child under Article 21 of the constitution. Acknowledging challenges in enabling conjugal visits in prisons, these difficulties cannot justify denying inmates their fundamental rights. Some states, including Delhi, are considering permitting conjugal visits and sent proposals to the Home Ministry for approval. Despite court orders to the state government, there are no formal mechanisms for conjugal visits in prisons. Identified as a part of Article 21, implementing conjugal visits requires changing prison rulebooks and developing a proper implementation strategy.

 Conjugal visitation rights are crucial for prisoners, but providing them without a legislative framework could lead to ineffective enforcement, as it is said that “No law should be made which is not capable of being enforced.” As observed by the High Courts in Meharaj v State and Others and Ms. G. Bhargavi v. State of Andhra Pradesh, conjugal visits cannot be provided without having a proper framework. So, like other countries, it is high time for the Indian legislature to seriously ponder upon this issue and bring forth a uniform legislation or amendment in the existing Prisons Act to deal with conjugal visitation on a nationwide scale, the same as available in other countries. Therefore, this issue requires balancing prisoner rights and state interests through a comprehensive legal framework, improved prison infrastructure, and careful security measures. This aims to uphold constitutional principles while promoting inmate rehabilitation and societal welfare.