Imprisonment and Basic Rights

Sudip Bhattacharyya

As reported in TOI (7/1/2015), the Punjab and Haryana high court Judge observed in CWP No. 5429 of 2010 (O&M) on 29.05.2014, made public on 6/1/15:
'A society involved in debates on gay rights or recognition of third gender can't keep concealed under the carpet the concept of conjugal visits of jail inmates.' It captioned : ‘Says married prisoners can have sex to have a child’.

The basic issues addressed were:
i.    Whether the right to procreation survives incarceration, and if so, whether such a right is traceable within Indian Constitutional framework?
ii.   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)?
iv.  If question No.(iii) is answered in the affirmative, whether all categories of convicts are entitled to such rig'ht(s)?
Further, the United Nations' Basic Principles for the Treatment of Prisoners, 1990 states that "except for those limitations that are demonstrably necessitated by the fact of incarceration, all prisoners shall retain the human rights and fundamental freedoms set out in the Universal Declaration of Human Rights.

The court further said :
*    Right to procreation survives incarceration. Such a right covered by ambit of Article 21 of Constitution read with the Universal Declaration of Human Rights.
*    The penological interest of the state ought to permit creation of facilities for the exercise of right to procreation during incarceration, may be in a phased manner, as there is no inherent conflict between the right to procreate and incarceration. However, the same is subject to reasonable restrictions, social order and security concerns.

While turning down the plea, the court further held that these rights were to be regulated by law and were the sole prerogative of the state. But, at the same time, directed the constitution of a jail reforms committee to be headed by a retired high court judge.

A sentence is a decree of punishment. In law, a sentence forms the final explicit act of a judge-ruled process, and also the symbolic principal act connected to his function. The sentence can generally involve a decree of imprisonment, a fine and/or other punishments against a defendant convicted of a crime.

There are a number of accepted reasons for the use of imprisonment. One approach aims to deter those who would otherwise commit crimes (general deterrence) and to make it less likely that those who serve a prison sentence will commit crimes after their release (individual deterrence). The major purposes of awarding a sentence particularly prison sentence are as follows:

Deterrence
*    To the individual—the individual is deterred through fear of further punishment.
* To the general public—potential offenders warned as to likely punishment.
A second approach focuses on issuing punishment to, or obtaining retribution from, those who have committed serious crimes. A third approach encourages the personal reform of those who are sent to prison.

Finally, in some cases it is necessary to protect the public from those who commit crimes—particularly from those who do so persistently and is as follows:

Incapacitation—protection of the public
*    Offender is made incapable of committing further crime to protect society at large from crime.
The approach of retribution is not relevant in a progressive democratic society. But, the increasing importance given recently to the notion of "reform" has led some prison systems to be so reformed and improved so that the prisoners are now being given much more improved living conditions. This is, as if, the objective is to give them all the facilities a free person could expect to enjoy in his normal life. It is perhaps in this context, the learned judge made the above observations.

If one agrees with this objective, it is certain to give go bye to, the need for punishments to be an instrument for deterrence and incapacitation. Because, if he can have normal life in prison, he or others will not be deterred from committing similar offence again. Further, he remains fully capacitated to commit similar crime.

There is, moreover, the basic objective of imprisonment that needs elaboration in this connection. Imprisonment is physical confinement of a convict within the premises of a prison. It means depriving the convict from enjoying his natural habitat, association with near and dear, continued vocation and his freedom of movement and choice of food and drinks. This best defines those limitations that are demonstrably necessitated by the fact of incarceration.

Further, close to the facts of the case in hand, the United States Court of Appeal, Ninth Circuit, in William Gerber vs Rodney Hickmen, 291 F.3d 617 (2002), held "many aspects of marriage that make it a basic civil right, such as cohabitation, sexual intercourse, and the bearing and rearing of children, are superseded by the fact of confinement"; (ii) "prisoners have no Constitutional right while incarcerated to contact visits or conjugal visits".

Now, does all this not tantamount to abrogation of basic rights of the convict, during the period of imprisonment and why this fuss? Thus the convicts who are proven guilty, of course, are not entitled to each and every basic/fundamental right guaranteed to a citizen or a person under the Indian Constitution.

All this notwithstanding, there can possibly be no reason as to why the authorities should shy away from releasing the convicts temporarily on 'parole'/'furlough' etc. for conjugal visitations/procreation, if the circumstance and conduct of the prisoner merit such consideration.

In the matter of continued conjugal relationship and procreation, what is more important is that during the course of imprisonment, the consort of the prisoner also gets deprived and his/her fundamental right is breached. This should, no doubt, qualify to be circumstances deserving such consideration.

Finally, if prison rights were to be regulated by law and were the sole prerogative of the state, as observed by the judge, then the decision to appoint a committee or otherwise lies with the state and he should not have given the direction.

Frontier
Vol. 47, No. 36, Mar 15 - 21, 2015