A prison is considered as a place in which individuals are physically confined and are deprived of personal freedom to a certain extent. Prison is an integral part of the criminal justice system of any country. Prisons may be meant exclusively for adults, children, females, convicted prisoners, under-trials etc. The objective of imprisonment may vary from country to country. It may be: a) punitive b) deterrence c) reformative or d) rehabilitative etc. The primary purpose of imprisonment is to protect society against crime. Punitive methods of treatment of prisoners alone cannot achieve the goal of reformation of prisoners. Various human rights approaches and human rights legislations as well as judiciary have facilitated a change in the approaches of criminal justice system. The United Nations has also provided certain guidelines for the treatment of prisoners. The State is under legal obligation for protecting its subjects and for the compliance of which citizens are given certain basic privileges recognised by the Constitution of India and other legislations. However, the enhancement of rights of the prisoners raises a question as to what extent it is viable under Article 21 to incorporate within its ambit, the access to conjugal rights to the prisoners within the jail premises. Moreover, what about the rights of the victims upon whom they had committed the offence and to what extent the arena of rights of the prisoners can be enhanced in the garb of human rights so as not to violate the human rights of the victims who were the primary sufferers of the offence committed upon them

Issues Pertaining To Violation Of Prisoners’ Rights^[1]

 Various international instruments have been formulated for the prisoners^[2] . In India also, apart from the Constitution of India that confers a number of fundamental rights upon its citizens, various legislations dealing with rights of prisoners have been enacted^[3]

Despite having so many legislations various issues enlisted below pertain to the violation of prisoners’ rights^[4]

• 80 per cent prisoners are under trials.
• Even though bail is granted, prisoners are not released.
• Insufficient provision of medical aid to prisoners.
• Insensitive attitude of jail authorities
• Punishment carried out by jail authorities not coherent with punishment given by court. Harsh mental and physical torture.
• High amount of surety ordered by courts which indigent prisoners can’t pay.
• Rejection of surety bonds due to lack of money or verification of addresses, as indigent prisoners don’t have houses.

Judicial Attitude on Human Rights Of Prisoners In India:

The Indian freedom struggle played a pertinent role in initiating the process of recognising certain rights for the prisoners. After independence, the Constitution of India conferred a number of fundamental rights upon the people. Article 21 of the Constitution guarantees the right of personal liberty and thereby prohibits any inhuman, cruel or degrading treatment to any person whether he is Indian national or foreigner. Article 21 states, “No person shall be deprived of his life or personal liberty except according to procedure established by law”. The Supreme Court of India, through interpretation of Article 21 of the Constitution, has developed human rights jurisprudence for the preservation and protection of prisoners’ rights for the maintenance of human dignity. Deprivation of life and liberty is justifiable according to procedure established by law but the procedure cannot be arbitrary, unfair or unreasonable.

In Maneka Gandhi Vs Union of India^[5], the Apex Court laid down that the procedure cannot be arbitrary, unfair or unreasonable. This was further endorsed in Francis Coralie Mullin Vs The Administrator, Union Territory of Delhi and Others^[6], when the court held that Article judiciary 21 requires that no one shall be deprived of his life or personal liberty except by procedure established by law and this procedure must be reasonable, fair and just and not arbitrary, whimsical or fanciful. The Indian judiciary has been very active and vigilant in protecting the human rights of the prisoners. Certain very pertinent rights of the prisoners recognised by the are as follows:                                  

Compensation

A prisoner or an under trial or a detainee can approach the Supreme Court under Article 32 and High Court under Article 226 and claim for compensation for the violation of his rights while in custody of the police. In Rudul Sah Vs State of Bihar and Others^[7] the petitioner was released from Tihar jail fourteen years on the excuse of insanity after he was acquitted. The Court observed that no data of any kind was produced to show that the prison authorities had a basis for either declaring the prisoner insane or for detaining him on that account. No measures were taken to cure him. Insanity was clearly alleged as an afterthought. The Court observed that if a prisoner was at all insane, it must have been caused by the jail conditions itself. The Court granted compensation of Rs 35000 to the petitioner and specifically indicated that a suit for compensation over and above this amount would lie in an appropriate Court. Article 21 will be denuded of its significant content if the powers of the Court were limited to passing orders merely of release. Sebastian Hongray’s case^[8] was a habeas corpus petition. Sebastian was a Naga Priest who was a Head Master of a school. His school was visited by the army. It was alleged that the army had engaged in certain atrocities and took away certain persons including the petitioner. He was last seen alive in an army camp. A petition for habeas corpus was filed, but the State refused to obey. The Court asked “What is the appropriate mode of enforcing obedience to a writ of habeas corpus?” The Court ordered that the State has to pay Rs One lakh each to the wives of the missing persons. Compensation of Rs 50000 was awarded in Bhim Singh’s case^[9] , for imprisonment with mischievous or malicious intent. In this case an MLA was kept in police custody and remand orders were obtained without his production before a magistrate. The Supreme Court in Nilabati Behera’s case^[10] expressed the need of the Court to evolve new tools to give relief in public law by moulding it accordingly to the situation with a view to preserve and protect the rule of law.In Peoples’ Union of Democratic Rights Vs State of Bihar^[11], the Supreme Court enhanced the amount of compensation from Rs 10000 to Rs 20000 to be paid to the twenty one persons belonging to backward classes who died in indiscriminate firing by the police while holding a peaceful meeting in the District of Gaya, Bihar, and Rs 5000 each to the  persons injured. The Court held that payment of such compensation does not absolve the liability of the wrong-doer but such compensation is being paid as a working principle and for convenience and with a view to rehabilitating the dependants of the deceased.

Fair Procedure

The Constitution of India recognizes principles of natural justice and they have been incorporated in Part III of the Constitution of India. In Abdul Azeez Vs State of Mysore^[12] the Karnataka High Court held that in cases where the accused refuses legal aid and is not represented by an advocate, the Court ought to, in the interest of justice, either question the witness himself, or appoint a competent counsel to assist the Court. The Court remitted the matter for retrial in accordance with its directions. In Shivappa Vs State of Karnataka^[13] the Supreme Court held that the Magistrate recording confessional statements of accused should strictly comply with the rules and ensure that the confessions are voluntary. In Jayendra Vishnu Thakur Vs State of Maharashtra and Another ^[14],the Supreme Court held that an accused would not be presumed to have waived his right and that procedural principles like estoppel and waiver would not be attracted where an order is passed without jurisdiction, as it would then be a nullity, because of which the order cannot be brought into effect for invoking the procedural principles mentioned above.

 Humane Sentencing

It is the sacred duty of judiciary to look at every aspect of the case and to award proportionate quantum of punishment depending upon the gravity of the offence. A sentence that is passed after considering the crucial circumstances which resulted into the illegal act drawing imprisonment of the accused is called a humane sentence. In Laxman Naskar (Life Convict) Vs State of West Bengal and Another^[15], the Supreme Court issued certain guidelines as to the basis on which a convict can be released pre-maturely:

1. Whether the offence is an individual act of crime without affecting the society at large?
2. Whether there is any chance of future recurrence of committing crime?
3. Whether the convict has lost his potentiality in committing crime?

In Zahid Hussein and Others Vs State of West Bengal^[16], the Supreme Court observed that the conduct of the petitioners while in jail is an important factor to be considered as to whether they have lost their potentiality in committing crime due to long period of detention or not.

Parole:

In Sunil Fulchand Shah Vs Union of India and Others^[17], the Constitutional Bench of the Supreme Court observed that parole is a form of temporary release from custody, which does not suspend the sentence or the period of detention, but provides conditional release from custody and changes the mode of undergoing the sentence. Parole is granted and governed by the following conditions: (a) A member of the prisoner’s family has died or is seriously ill or the prisoner himself is seriously ill; or (b) The marriage of the prisoner himself, his son, daughter, grandson, granddaughter, brother, sister, sister’s son or daughter is to be celebrated;

Press:

The access of prisoners to the media revolves around three rights concerning prisoners, namely: a. Right to Speech and Expression, b. Right to Information c. Right to Privacy. Article 19 in Part III of the Constitution of India confers the fundamental right of speech and expression on the citizens of India. In Prabha Dutt’s case^[18], the right of a reporter to interview prisoners was in question. The Court upheld this right provided the prisoners desired to be interviewed. In Sheela Barse’s second case^[19], the Court held that it was necessary that public gaze be directed to prison matters and that journalists be given access to information and also interview prisoners. However, the recent incident of interview of Nirbhaya’s rapist by a British journalist has raised various questions relating to rights of the victims, their dignity and the freedom of speech of the prisoners.

Prison Facilities:  

In R.D. Upadhyay Vs State of Andhra Pradesh and Others,^[20] the Supreme Court considered the issue of development of children who are in jail with their mothers, either as under trial prisoners or convicts. The Court observed that the jail environment was certainly not congenial for development of the children. A study was ordered to be conducted by the National Institute of Criminology and Forensic Sciences where certain suggestions were made for proper care of children of women prisoners. It was further suggested that arrest of women suspects be made only by lady police. Such arrests should be sparingly made as it affects innocent children who are taken into custody with their mothers.

International Obligations:

Among the main reasons for the foundation of state and establishment of government; safeguarding peace and security and respecting law and order come to the forefront. The idea of social contract theory says that people agreed for the foundation of a state and government for the sake of better protection and have forfeited some of their rights for its effectiveness. Therefore, the obligation of securing law and order and punishing individuals during violations of the law remain in the hands of the state. Hence, administration of criminal justice in general is the power of the state. Likewise, the practice of how state treats its citizens or subjects was exclusive power of the individual state concerned. This includes Human rights and treatment of prisoners. However, later on issues of human rights and treatment of prisoners by states in particular draw the attention of many activists and was included in the international and regional human rights documents.

Similar to the fact in the research project, addressing prisoners’ rights in the UN and regional human rights treaties is a result of the shift of public power of the 1940s. In addition to this, the UN and the other regional human rights systems have established adjudicating bodies which are empowered to settle disputes on the interpretation and application of the treaties concerned.

Human rights committees, particularly the general comments of the ICCPR and IESCR committees on the rights of prisoners is one of the sources to be consulted in my research. Though there is no separate binding treaty on the rights of prisoners there are normative standards adopted by United Nations Congress on the Prevention of Crime and the Treatment of Offenders.

In addition to the UN system, the way the European Human rights system has addressed the rights of prisoners and particularly conjugal visits and family rights of prisoners will be assessed in my research. Hence, the European convention on Human rights which is binding on states parties has addressed the basic right of prisoners under its articles 2, 3, 8, and 12.  However, there are further conventions like The European convention for the prevention of Torture and Inhuman or degrading Treatment or punishment, and the European prison rules of 1973 amended in 2006. Therefore, binding and normative laws of the council of Europe address rights of prisoners in a fairly detail manner. Furthermore, the European Court of Human rights which is mandated to decide on cases about the interpretation and application of the ECHR and other treaties has passed important decisions on matters directly and indirectly related to rights of prisoners Vote, to marry, private and family life and conjugal visit in general.  Hence, the court in these cases is passing binding decision which will result in change of policy and laws in the states concerned.

Therefore, the locus of the public power in my research is both at the international and regional level, exercised by public bodies, the UN human rights bodies and the European court of Human Rights which are established by treaties or conventions ratified by states parties.

Personal Scope of Public Power

In both the international and European systems the conventions are binding on the signing states. However, the Minimum standard rules on the treatment of prisoners in both cases are not binding but result in normative value against the members of the International or regional body which has approved it. Therefore, the conventions scope of application is limited to signing states; where as the minimum standard rules will have normative effect in the jurisdictions of all member states to the organization i.e. the UN and Council of Europe.

With regard to the judicial and quasi-judicial monitoring bodies, the practice is varies in the international and regional systems. As mentioned above the ICCPR and ICESCR committees are established to decide on cases related to the interpretation of the conventions and monitor the application of the same. The general comments of the committee are addressed to all states parties for their general consideration on the application of the treaty. However, the committee has also power to decide on individual complaints if the state declared its consent to do so. In this case, the decision of the committee is directly addressed to the complaining individual, or state and defending state. Hence, it is limited to particular addressees. However, this does not disregard the potential effect against similar cases in other state parties.

Coming to the ECTHR, article 32 of the convention granted it the power to decide on application and interpretation of the convention and the protocols. Hence, it accepts both individual and state complaints. However, though state complaint is allowed, Individual complaints are highly used in the system. The same to the individual complaint in the human rights committee the decision of the court is binding against the addressed complainant and defendant which could be individual or group and state(s) respectively. Hence, it is directed against specific state(s). However, the decision of the court will have strong impact on similar cases in other member states. Hence, though the decision directly affects the addressees it also indirectly affects others in similar situation.

 Material Scope Of Public Power

As the name indicates my research focuses on particular rights of prisoners, right to conjugal visit. However, this right is liked with and exercised through the right to family and private life, right to marry and right to procreation. Accordingly, while assessing the practice of the UN human rights committee and the ECTHR decisions and the substantive law in the conventions of the institutions, the focus is on the right to conjugal visit and other surrounding rights. Hence, the material scope of the public power exercised by the above bodies in relation to my research is on rights of prisoners, and particularly right to conjugal visit. However, the decisions of the human rights committee and the ECTHR on these issues also affect other surrounding policy areas to the right of prisoners. To be specific, a decision of the ECTHR against the prohibition of prisoners to vote has strong implication on the election system in general. Therefore, each decision has its own implication on budget issues, existing laws, interest of the victim of crime and the society in general.

Conjugal Rights:

Recently the Punjab and Haryana High Court in the case of Jasvir Singh and Another Vs State of Punjab and Others^[21] has given a very novel judgment recognising conjugal rights of the prisoners within the jail premises considering it as part and parcel of right to life under Article 21.

In this case the petitioners were husband and wife and they were tried for an offence under Section 302/364-A/201/120-B IPC for kidnapping and brutally murdering a sixteen year old minor for ransom. The trial court awarded them death sentence which was confirmed by the High Court of Punjab and Haryana. The Hon’ble Supreme Court commuted the death sentence awarded to wife into life imprisonment. The petitioners thereafter sought enforcement of their perceived right to have conjugal life and procreate within the jail premises. They sought a command to the Jail authorities to allow them to stay together and resume their conjugal life for the sake of progeny and make all arrangements needed in this regard. Amicus curiae was appointed by the court keeping in view the vital issues of public importance. Various observations made by him are reproduced below: The husband claimed to be the only son of his parents and eight months into their marriage they got caught in the criminal case. The petitioners claimed that their demand is not for personal sexual gratification. The petitioners were also open to artificial insemination. The petitioners’ fundamental focus was on Article 21 of the Constitution. They insisted that the right to life has two essential ingredients, namely, (i) preservation of cell; and (ii) propagation of species of which sex life is a vital part. The decision in State of Andhra Pradesh Vs Chalaram Krishna Reddy^[22] was relied upon to urge that a prisoner whether convict, undertrial or a detenue, continues to enjoy the Fundamental Rights including right to life which is one of the basic Human Rights. The petitioners also referred to the well regulated concept of ‘conjugal visitations’ successfully implemented in the advanced countries like the USA, Canada, Australia, UK, Brazil, Denmark and Russia etc. The State of Punjab opposed the petitioners’ prayer essentially on the plea that the Prisons Act, 1894 contains no provision to permit ‘conjugal visitation’; its Section 27 rather mandates proper segregation of male and female prisoners. Para 498 of the Punjab Jail Manual, lays down the method for separation of male and female prisoners. Even ‘artificial insemination’ as a viable and alternative solution suggested by the petitioners, was not acceptable to the State of Punjab as according to its affidavit “there is no such provision in the Prisons Act, 1894 and Punjab Jail Manual to allow the husband and wife convicts to be in the same cell in the jail or to allow for artificial insemination of the convicts…”. The father of the minor victim, who was murdered for ransom by the petitioners, also joined these proceedings to oppose the petitioners’ prayer. The following, amongst other issues emerged for determination:

1. Whether the right to procreation survives incarceration, and if so, whether such a right is traceable within our Constitutional framework?
2. Whether penalogical interest of the State permits or ought to permit creation of facilities for the exercise of right to procreation during incarceration?

iii.   Whether ‘right to life’ and ‘personal liberty’ guaranteed under Article 21 of the Constitution include the right of convicts or jail inmates to have conjugal visits or artificial insemination (in alternate)?

1. If question number (iii) is answered in the affirmative, whether all categories of convicts are entitled to such right(s)? The jail inmates in India fall broadly in two categories:

(I) the convicts – who no longer carry presumption of innocence; and

(ii) the under-trials – who are presumed innocent until found guilty by the court.

The Legislature and the Judiciary both have been largely influenced by such classification while guaranteeing or curtailing fundamental, human or civil rights of the jail inmates. The convicts who are proven guilty are not entitled to each and every fundamental right guaranteed to a person under our Constitution.

In D. Bhuvan Mohan Patnaik and Others Vs State of Andhra Pradesh and Others^[23] the court declared that convicts cannot be denied the protection of fundamental rights which they otherwise possess, merely because of their conviction. A convict whom the law bids to live in confinement though stands denuded of some of the fundamental rights, like the right to move freely or the right to practice a profession, nonetheless, such convict shall continue to enjoy other constitutional guarantees including the precious right guaranteed by Article 21 of the Constitution.

In Sunil Batra Vs Delhi Administration and Others^[24], Justice Krishna Iyer considered the core issue, whether a prison ipso facto outlaw the rule of law, lock out the judicial process from the jail gates and declare a long holiday for human rights of convicts in confinement or the prison total eclipses judicial justice for those incarcerated under the orders of a judicial Court? The dictum very emphatically espoused the cause of jail-inmates holding that ‘Prisons are built with stones of Law’^[25] and so, when human rights are hashed behind bars, constitutional justice impeaches such law. Sunil Batra-I, amongst other things, ruled that the condemned prisoner like Batra shall be merely kept in custody and shall not be put to work like those sentenced to rigorous imprisonment. Such like convicts shall be entitled to amenities of ordinary inmates in the prison like games, books, newspapers, reasonably good food, the right to expression, artistic and other, and normal clothing and bedding. It was further held that condemned prisoners cannot be denied their right to eat, sleep, work or live re-humanisation of the prisoners. It stated that “positive experiments in re-humanizationmeditation, music, arts of self-expression, games, useful work with wages, prison festivals, shramdaan and service-oriented activities, visits by and to families, even participative prison projects and controlled community life, are among the re-humanization strategies which need consideration. Social justice, in the prison context, has a functional versatility hardly explored.” In the context of Section 30(2) of the Prison Act it was held that such prisoner is not to be completely segregated except in extreme cases of necessity which must be specifically made out.

Sunil Batra Vs Delhi Administration,^[26] phenomenally liberated the jail inmates from the atrocities inflicted through mental torture, psychic or physical pressure and it brought a catenation of radical changes in prison conditions like (i) Separation of under-trials from convicts in jails; (ii) Their right to invoke Article 21 of the Constitution; (iii) Separation of young inmates from adults; (iv) Liberal visits by family and friends of prisoners; (v) Ban on confinement in irons; (vi) The duties and obligations of the Courts with respect to rights of prisoners; and (vii) Re-defining the duties of District Magistrate etc. Sunil Batra-II delved deeper and held that “visits to prisoners by family and friends are a solace in insulation; and only a dehumanised system can derive vicarious delight in depriving prison inmates of this humane amenity. Subject, of course, to search and discipline and other security criteria, the right to society of fellow-men, parents and other family members cannot be denied in the light of Article 19 and its sweep”.

Sunil Batra-II very forcefully ruled that “we see no reason why the right to be visited under reasonable restrictions, should not claim current constitutional status. We hold, subject to considerations of security and discipline, that liberal visits by family members, close friends and legitimate callers, are part of the prisoners’ kit of rights and shall be respected”.

 In The Andhra Pradesh High Court in Ms. G. Bhargava, President M/s Gareeb Guide (Voluntary Organisation) Vs State of Andhra Pradesh^[27] a direction was sought to take immediate steps and allow conjugal visits to spouses of prisoners in jails across the State of Andhra Pradesh. The Court rejected the claim observing that if conjugal visits are to be allowed keeping in view good behaviour of the prisoners, “chances of the environment getting disturbed cannot be ruled out as it will have an adverse impact on the other inmates of the jail who have not been selected and extended such benefit…” and that “the issue raised in the writ petition being a policy decision is within the domain of the State…”.

Judgement

The writ petition was disposed of with the following directions:

1. The State of Punjab was directed to constitute the Jail Reforms Committee to be headed by a former Judge of the High Court. The other Members shall include a Social Scientist, an Expert in Jail Reformation and Prison Management amongst others;
2. The Jail Reforms Committee shall formulate a scheme for creation of an environment for      conjugal and family visits for jail inmates and shall identify the categories of inmates entitled to such visits, keeping in mind the beneficial nature and reformatory goals of such facilities;

iii.         The said Committee shall also evaluate options of expanding the scope and reach of ‘open prisons’, where certain categories of convicts and their families can stay together for long periods, and recommend necessary infrastructure for actualizing the same;

1. The Jail Reforms Committee shall also consider making recommendations to      facilitate the process of visitations, by considering best practices in the area of prison reforms from across jurisdictions, with special emphasis on the goals of reformation and rehabilitation of convicts and needs of the families of the convicts;
2. The Jail Reforms Committee shall suggest ways and means of enhancing the facilities for frequent linkage and connectivity between the convict and his/her family members;
3. The Jail Reforms Committee shall prepare a long-term plan for modernization of the jail infrastructure consistent with the reforms to be carried out in terms of this order coupled with other necessary reforms;
4. The Jail Reforms Committee shall also recommend the desired amendments in the rules/policies to ensure the grant of parole, furlough for conjugal visits and the eligibility conditions for the grant of such relief;

vii.              The Jail Reforms Committee shall also classify the convicts who shall not be entitled to conjugal visits and determine whether the husband and wife who both stand convicted should, as a matter of policy be included in such a list, keeping in view the risk and danger of law and security, adverse social impact and multiple disadvantages to their child;

1.  The Jail Reforms Committee shall make its recommendations within one year after visiting the major jail premises and it shall continue to monitor the infrastructural and other changes to be carried out in the existing jails and in the Prison Administration System as per its recommendations.
2. The Jail Reforms Committee shall be allowed to make use of the services of the employees and officers of the State of Punjab, who is further directed to provide the requisite funds and infrastructure including proper office facilities, secretarial services, travel allowances and all necessary amenities and facilities, as required by the Jail Reforms Committee.

 Implications of The Judgment:

The court observed that that learned amicus curiae canvassed that the right to life includes right to ‘create life’ and ‘procreate’ and this fundamental right does not get suspended when a person is sentenced and awarded punishment thereby limiting him to stay in the jail. The law under which petitioners are sentenced and tried does not extinguish their rights under Article 21, till in a legal manner and as far the procedure established by law, the life of first petitioner i.e. the husband is extinguished. His right to procreate cannot be taken away only because he has been sentenced and punished for some offence. There is no provision, explicit or implied, in any penal law and/or the Constitution that takes away the petitioners’ right to decent life under the set circumstances, which squarely falls within the expanded scope of Article 21. The petitioners seeking to exercise their fundamental right to ‘life and procreate’ thus ought not to be denied. Husband has been awarded death sentence and is undergoing punishment but his ‘right to life’ cannot be taken away till his execution. Until then the right to life includes all rights except the freedom to move which has been taken away by way of punishment of law. The learned amicus curiae referred to various scholarly articles, books and research papers, throwing invaluable light on the issue of conjugal visits/marital relationship of prisoners/human rights of prisoners.^[28]

Apart from this, the amicus curiae also referred to The Punjab Good Conduct Prisoners’ Probational Release Act, 1926 which was enacted with the Object that those prisoners whose antecedents or conduct while under restraint give promise that they will justify privilege of conditional release, with opportunities of earning their own livelihood and “of having their families with them”, could be released by the State Government, conditionally. A new legislation namely; Punjab Good Conduct Prisoners (Temporary Release) Act, 1962 was enacted after the independence. Under Section 3(1) of the Act the State Government may release the prisoners temporarily for a specified period, if it is satisfied that:

(a) A member of the prisoner’s family had died or is seriously ill; or

(b) The marriage of the prisoner’s son or daughter is to be celebrated; or

(c) The temporary release of the prisoner is necessary for ploughing, sowing or harvesting or carrying on any other agricultural operation on his land and no friend of the prisoner or a member of the prisoner’s family is prepared to help him in this behalf in his absence;

(d) It is desirable to do so for any other sufficient cause. Section 4 empowers the State Government to release prisoners temporarily, on ‘furlough’ subject to his good behaviour and the quantum of sentence awarded or the nature of offence committed. Section 6 puts a restriction on the release of a prisoner, if it is likely to endanger the security of the State or the maintenance of public order. It may be inferred from the sections that it is necessary to keep a prisoner in contact with his family under certain circumstances. Moreover, Section 3(1) (d) is so wide in its ambit that it can incorporate any other sufficient ground as well, for the temporary release of a prisoner. Hence more importance has been attached to the good behaviour of a prisoner not extendable to those involved in heinous offences or endangering State security or public peace. The legislation does not expressly deal with conjugal rights of the prisoners. The judgment delivered in favour of the prisoners incorporating conjugal rights of the prisoners in the jail premises under Article 21 has raised two basic questions as well as implications which need pondering:

1. To what extent it is viable under Article 21 to incorporate within its ambit the conjugal rights to the prisoners in the jail premises?
2. Moreover, what about the rights of the victims upon whom they had committed the offence and to what extent the arena of human rights of the prisoners can be enhanced so as not to violate the human rights of the victims? No doubt that right to life does include the right to procreate. However, when a person commits an offence, he is considered guilty only when his guilt is proved beyond reasonable doubts. Till then, he is considered as innocent in the eyes of law and that is the reason even our Constitution recognises the rights of the accused rather than the prisoners. But, merely because a person is a prisoner does not take away from him the right of a human being. This means the dual purpose of criminal justice system to punish and reform the prisoner demands certain rights that need to be given to him. That is why judiciary had been active in protecting the interests of the prisoners within the jail premises.

But at the same time we cannot forget that person because of whom the entire criminal justice system was set into motion; the VICTIM. From the perspective of the hapless victim if it is analysed deeply, one may derive this conclusion that slowly and gradually the balance between the rights of the prisoners and the victim is decreasing which may one day lead to collapse of the criminal justice system as the victim will or may think that despite getting the punishment of imprisonment, the accused is going to lead a full family life and the very pendulum of balance between the rights of accused and victim gets disturbed leading to non reporting of offences, taking law in one’s own hand, taking revenge, etc. It appears as if judiciary has started giving preference to the human rights of only one side i.e. prisoners and ignoring the rights of the victims or their kin. This further leads to a question that whether the primary purpose of the criminal justice system is to punish or reform the offender? Till the time an offence is an offence against the State, the primary function of the criminal justice system is to punish and then reform. However, in the garb of reformation, the punishment itself cannot be converted into the comfort zone of the prisoner because the reformation concept is mainly applicable to after release or completion of sentence. Besides, during the imprisonment period, the rights of the prisoners should not be stretched to an extent of providing another home where the prisoner has come to spend his vacations. The element of punishment must exist not merely on paper but in practice as well.

 Moreover, this also applies to certain categories of offenders recognised under Probation of Offenders Act where any kind of relaxation has been completely negated in case of murders or rape or other heinous offences. If the objective of Probation of Offenders Act is observed, it is clearly visible that the intention of the legislature is not to give any relaxation to heinous offenders. However, the same aspect has been ignored in the present judgment.

 Also, the rights of the victim and his pleadings cannot be simply ignored in the name of human rights of the prisoners because human rights should be made available to all not just a category. If prisoners’ human rights have been taken care of, then it becomes the bounden duty of the judiciary to take equal care of the human rights of the victim as well. The petitioner in this case had murdered a boy. Does life have no value? Is it appropriate to provide conjugal rights to the murderers? Will the father of the deceased ever report a crime in future if the comfort zone of the petitioners is kept on increasing? Right to life is so vast that anything can be incorporated within its ambit. But at some point, a line of margin must be drawn beyond which the judiciary or the legislature should be reluctant to move else the balance of criminal justice system will certainly collapse.

Conclusion:

 A person does not lose his human rights merely because he has committed some offence as he also has some dignity which must be protected. However, at the same time conferring conjugal rights to the prisoners within the jail premises requires re-consideration of a larger bench of the High Court or the Supreme Court as far as the concept of human rights is involved. By giving more weightage to the prisoners, the balance of criminal justice system may get disturbed and a situation may arise when one day jails would become resting centres or the victims may stop reporting the matter to the police and start taking law in their own hands to punish the guilty.

[1] Available at http://www.hrln.org/hrln/prisoners-rights.html (accessed 02 April 2015)

[2]Basic principles for the treatment of prisoners 1990, Body of principles for the protection of all persons under any form of detention or imprisonment 1988, Code of conduct for law enforcement officials 1979, Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 1984, Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 1984, European Prison Rules 1987, International Covenants on Civil and Political Rights 1966, Principles of medical ethics relevant to the role of health personnel, particularly physicians, in the protection of prisoners and detainees against torture and other cruel, inhuman or degrading treatment or punishment, 1982, Standard minimum rules for the treatment of prisoners 1957 and 1977, United Nations Congress on the Prevention of Crime and Treatment of Offenders, United Nations Rules for the Protection of Juveniles deprived of their Liberty, United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules) 1985, Universal Declaration of Human Rights 1948.

[3] Code of Criminal Procedure 1973, Exchange of Prisoners Act 1948, Identification of Prisoners Act 1920, Indian Penal Code Act 1860, Juvenile Justice (Care and Protection of Children) Act 2000, Mental Health Act 1987, Model Prison Manual 2003, Prison Act 1894, Prisoners (Attendance In Courts) Act 1955, Prisoners Act 1900, Probation of Offenders Act 1958, Protection of Human Rights

[4]Available at http://www.hrln.org/hrln/prisoners-rights.html (accessed 02 April 2015)

[5] AIR 1978 SC 597

[6]AIR 1981 SC 746

[7] AIR 1983 SC 1086

[8] AIR 1984 SC 1026

[9] AIR 1986 SC 494

[10] JT 1993 (2) SC 503

[11] AIR 1987 SC 355

[12] 1975 Cri LJ 335

[13] AIR 1995 SC 980

[14] 2009 (7) SCC 104

[15] 2000 (7) SCC 626

[16] 2001 (3) SCC 750

[17] 2000 (3) SCC 409

[18] AIR 1982 SC 6

[19] 1988 (1) Bom Cr. 58

[20] AIR 2006 SC 1946

[21] CWP No.5429 of 2010 Date of Decision: 29 May 2014

[22] (2000) 5 SCC 712

[23] (1975) 3 SCC 185

[24] (1978) 4 SCC 494 (popularly known as Sunil Batra-I)

[25] William Blake

[26] (1980) 3 SCC 488 (known as Sunil Batra-II)

[27] PIL No.251 of 2012 decided on 16 July 2012

[28] Marital Relationships of Prisoners in Twenty – Eight Countries by Prof. Ruth Shonle Cavan and Prof. Eugene S. Zemans

Conjugal Visitations In Prisons – A Sociological Perspective by Joseph K. Balogh Attitudes toward Conjugal Visits for Prisoners by Norman S Hayner Human Rights and Welfare by Professor Baroness Deech Analyzing Prison Sex: Reconciling Self- Expression with Safety by Brenda V. Smith

Author: Parul Nagpal & Harshita Agarwal, Students, Mody University.

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