A prisoner by virtue of being a human being deserves to be treated with human dignity. This observation of Supreme Court in the Sunil Batra Case (1978) is once again echoed by a Madurai Bench of Madras High Court.

It ignited a debate on conjugal rights of prisoners, stressing the complicated web of policy dynamics. Similar sentiment was resonated by the Punjab and Haryana High Court in 2015 when it emphasised the philosophy of modern rehabilitative penology ‘to transform the prisoner during the incarceration period.’

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Complete isolation of men and women from sexual activities of heterosexual nature is likely to beget hostile, aggressive and sometimes dangerous behaviour of the prisoners toward other inmates and prison staff.

Psychologists contend that frustration, tension, ill feelings and heartburn can be minimised and a human being can be better constructed if a man is allowed conjugal relationship even occasionally. The proponents of conjugal visits say that the benefits are both emotional as well as biological.

International and Comparative Legal Regimes

The United Nations “Basic Principles for the Treatment of Prisoners, 1990” unequivocally argues that all prisoners shall retain the human rights and fundamental freedoms set out in the Universal Declaration of Human Rights except for those limitations that are demonstrably necessitated by the fact of incarceration.

International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR) and European Charter of Human Rights too have recognised prisoners’ basic human rights.

This proposition received favourable treatment by many advanced countries like USA, Canada, Australia, UK, Brazil, Denmark and Russia etc. Short home leaves for designated class of prisoners have been conventional in England, Wales, North Ireland, Scotland, Denmark, Switzerland, Germany, Greece, and Sweden. Latin American States viz. Chile, Puerto Rico, Argentina, and Mexico under its prison laws permit supervised visits of the spouse with the prisoner within the prison.

Chile recognizes greater laxity and permits for both private visits in the prison as well as for home leaves. Germany allows prisoners and their spouses or partners to apply for conjugal visits. The Russian prison reform movement that began in 2001 ensured that prisoners get extended onsite family visits, approximately once per month.

The Federal prison laws of United States prohibit conjugal visits but for those in state custody, conjugal rights are governed by the law of that particular state. For instance, California, New York, Washington and Connecticut allow extended family visits or family reunion visits as part of rehabilitation agenda.

Developing Judicial Consensus

The right to sexual and reproductive health is an integral part of right to health enshrined in Article 21 of the Constitution of India. It requires a positive and reformist approach to sexuality, sexual relationships and the possibility of having pleasurable and safe sexual experiences, free of coercion, discrimination and violence. The right to sexual and reproductive health is intertwined with other civil and political rights underpinning the physical and mental autonomy.

The Supreme Court of the United States in Sherman Block v. Dennis Rutherford, overturning the progressive decisions of the District Court of California and Court of Appeal, held that a blanket prohibition on contact visits with pre-trial detainees, is a reasonable non-punitive response to legitimate security concerns and does not violate the Fourteenth Amendment to the US Constitution.

However, in their dissenting voices, Justices Marshall, Brennan and Stevens recognized the value of family visits and observed that “the ability of a man to embrace his wife and his children from time to time during weeks or months while he is awaiting trial, is a matter of great importance to him.”

The Supreme Court of Judicature (Civil), United Kingdom in R v. Secretary of State for Home Department also gave a narrowed interpretation. However, the Grand Chamber of the European Court of Human Rights (ECHR) has taken a progressive stand by upholding prisoner’s right to private and family life which includes facility of artificial insemination.

Indian Courts prima facie seem to be more progressive in comparison to their counterparts in other civilized democracies. The Supreme Court in Sunil Batra Case while venturing into functional versatility of social justice in the prison context held that positive experiments in re-humanization meditation, music, arts of self-expression, games, useful work with wages, prison festivals, shramdan and service-oriented activities, visits by and to families, even participative prison projects and controlled community life, are among the re-humanisation strategies which need consideration.

It further observed that subject to reasonable restrictions, 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.

Following in these footsteps, the High Courts of Andhra Pradesh (G. Bhargavi, Hyderabad v. Secy., Home Dept., Hyderabad and Others), Punjab and Haryana (Jasvir Singh Case-2015) and Madras (Mrs. Meharaj Case-2018) too documented prisoner’s conjugal rights.

Conceptions, Misconceptions & Way Forward

The opponents of conjugal visits often argue that too much freedom of prison inmates may jeopardise the system of discipline and it would make the jails as resting centres for prisoners.

The size of the inmate population, the crowded living conditions, the absence of privacy, and the atmosphere of constant surveillance make it difficult to imagine a well-run private visitation program being introduced at a reasonable cost.

But, then denying conjugal visitation would subject the innocent family members of the prisoners to unnecessary punishment both physically and emotionally. People serving long sentences shall be deprived of parenthood.

It does lessen violence, homosexual rape, homosexuality, depression and reinforces the prisoner’s self-image. Sexual deprivation is antithetical to the rehabilitative model of imprisonment.

Finally, weighing the harms and benefits, we propose that though conjugal visitation is not the panacea, it is a right worth striving for. We have to come out of the Victorian attitude that locking people away is enough – that prison has to come with hard labour and must be conducted under extreme hardships and conditions. A well-devised policy with workable and humane approach would improve the health and overall well-being of the prisoners.

The writers are, respectively, Deputy Registrar and an Advocate, Supreme Court of India.