I spent the whole of last week conducting training on self representation at Shimo La Tewa Prison. One of the questions that was posed by one of the married paralegals who is serving a life sentence was whether he could enjoy his conjugal rights or not.
The Prisons Act is silent on the issue. Conjugal rights can only be enjoyed in private setups which are lacking in prisons. These rights are very closely interrelated with the reproductive health rights as guaranteed under Article 43 - right to found a family - and the right to life under Article 26 of the constitution.
Articles 24 and 25 however point out that rights are not absolute. These provisions set out a very tight threshold and rigid procedure for limiting rights.
Imprisonment is a form of punishment that is meted out by a court of law with a view to remove the convict from the community for purposes of punishment and reformation. This has the natural effect of limiting the physical interaction and contact that a married convict has with their spouse. This includes sexual contact.
As such if one is sentenced to life, one can no longer found a family if he/she was newly married and childless.One can't even get a child through artificial methods.
Recently, the Punjab government has turned down an appeal for conjugal rights made by a prisoner couple housed in Patiala jail. It was probably the first time in the country that a convicted couple had made the demand so that they could give their family an heir.
Should inmates be allowed to provide sperm to their partners to enable them to become fathers? Can a married prisoner base their claim on the premise that they would be too old to father children if they were made to wait until they were released?
There is a school of thought that flows from the perspective of parental responsibility. It poses logical questions like, will the best interest of the child be upheld in situations of circumstantial absentee fathers or mothers who are technically incapable of making any contribution to the well being and social, religious and emotional development of children born of inmates? How will the inmates discharge their parental responsibility? How will we handle the interrelated rights of the inmates to enjoy conjugal rights and the right to family on one side an the best interest of the child on the other? How will the inmates discharge parental responsibility?
Conjugal rights for prisoners is available in some European countries including France and Spain.