( January 7, 2015, Chandigarh, Sri Lanka Guardian)  In a historic verdict, the Punjab and Haryana high court has allowed jail inmates to have sex with their partners as long as they are married and want to have a child. The court, in an order made public on Tuesday, held that the right of convicts and jail inmates to have conjugal visits or artificial insemination for progeny was a fundamental right.

Justice Surya Kant of the high court has passed these orders while disposing of a petition filed by a couple - Jasvir Singh and Sonia - who are currently lodged in the Central Jail, Patiala. They were awarded the death penalty by a trial court for kidnapping and killing a 16-year-old boy of a rich Hoshiarpur family for a hefty ransom.

The duo had sought permission to stay together and resume their conjugal life for the sake of progeny. They wanted the court to order the jail authorities to make the necessary arrangements in this regard.

Jasvir had pleaded that he is the only son of his parents and that they had been arrested in the case within eight months of their marriage. The petitioners claim that their demand is not for personal sexual gratification.

The court however denied Jasvir's plea considering the heinous nature of the crime committed, but enlarged the scope of the petition in larger public interest. The judge held that right to life and personal liberty under Article 21 of the Constitution includes the right of convicts and jail inmates to have conjugal visits or artificial insemination as an alternative.



"A society which is currently involved in academic and intellectual debates on 'gay-rights' or the recognition of 'third-gender', cannot shy away nor can it keep concealed under the carpet the pragmatic concept of conjugal visits of the jail inmates," the court observed. "To say it differently, time has come and before it is too late, the stake-holders must sit together and deliberate upon this crucial subject and take a holistic view."

The court, however, held that these rights were to be regulated by law and were the sole prerogative of the state. For this, the court ordered the constitution of a jail reforms committee to be headed by a retired high court judge. The committee would formulate a scheme for creation of an environment for conjugal and family visits in jail. It will identify categories of inmates entitled to such visits.

Other members shall include a social scientist and experts in jail reforms and prison management.

The reforms committee will also determine is couples, where both the husband and wife have been jailed should, as a matter of policy, be included in such a list. The decision would be taken keeping in view the risk to security, adverse social impact and multiple disadvantages to their child;

Committee has to make its recommendations within one year after visiting the major jail premises.

What the court 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.

Special thanks to the Times of India 



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