Introduction
Over the years, the Indian judiciary has played a significant role in defining the contours of Article 21 of the Constitution of India, which enshrines the sacrosanct fundamental right to life and personal liberty. Article 21 has been interpreted to include an array of related rights which have also been extended to prisoners so as to safeguard and uphold their interests. These include the right to speedy trial, the right to healthcare and medical treatment, and the right to procreate, among others. Despite being a subset of Article 21, the extent of applicability of a prisoner’s right to procreate has been uncertain. Furthermore, while dealing with the issue of a prisoner’s right to procreate, the Courts have also failed to address whether such right necessarily entails the right to parenthood as well. However, recently, in Kundan Singh v. The State Govt. of NCT Delhi, the Hon’ble High Court of Delhi was called upon to address a similar issue in so far as it had to determine whether a convict has the right to procreate and parenthood while undergoing their penal sentence. This case comment thus highlights the Hon’ble Court’s unprecedented approach towards resolving the ambiguity created by earlier decisions and taking a step forward in upholding prisoners’ rights by recognizing their right to procreate and parenthood as a fundamental right.
Factual Matrix
The case at hand arose out of a writ petition filed before the Hon’ble High Court of Delhi by Kundan Singh who was a convict undergoing rigorous imprisonment for life. Having spent over 14 years in prison, Kundan’s wife submitted a parole application, seeking temporary release for her husband so that they could have a child to continue their family lineage. The said application was however rejected by the Deputy Secretary, Home Department on the ground that Kundan’s conduct in prison was not satisfactory so as to entitle him to be released on parole in accordance with Rule 1210 Sub-Rule (II) of Delhi Prison Rules, 2018 (“Rules”). Aggrieved from the impugned order, Kundan approached the Hon’ble High Court of Delhi seeking a writ in the nature of certiorari to quash the impugned order and a writ of mandamus directing the prison authorities to release him on parole to exercise his right to procreate.
Issues in question
In the present case, the Hon’ble Court dealt with the following questions of law:
- Whether a convict, by virtue of Article 21, has a right to procreate and parenthood?
- If yes, whether such right is irrefutable and absolute i.e., without any limitations?
Decision of the Court:
The Hon’ble Court dealt with the issues discussed above as follows:
- Right to procreate: A subset of Article 21
The Hon’ble Court observed that Article 21 which ensures the fundamental right to life and personal liberty, is not entirely nullified due to incarceration. Further, the Hon’ble Court noted that although a convict’s personal liberty must be relinquished for the State’s penological interests and for maintaining the rule of law, the convict cannot be deprived of the protection of Article 21, which includes, the right to have a child under peculiar circumstances.[i]
Additionally, though the Rules do not specifically mention procreation and parenthood as grounds for parole, the Hon’ble Court observed that the absence of specific provisions in the Rules do not prevent a Constitutional Court from stepping in and adjudicating requests based on the intent and content of the Rules and their practical application.
Basis the aforesaid, the Hon’ble Court held that the right to life under Article 21 includes the right of a convict to have a child in certain cases such as, when he has no biological children, and in order to enable the convict to exercise the same, he may be granted parole. Therefore, the Hon’ble Court answered the first question in the affirmative by holding that the right to procreate and parenthood is an offspring of Article 21 and the same survives despite imprisonment subject to certain conditions.
- Prisoner’s right to procreate, not an irrefutable right
While the Hon’ble Court acknowledged that the right to procreate and parenthood is intrinsically connected to the idea that every person has the right to continue their family line, it also observed that such entitlement is not devoid of limitations, and its utilisation is contingent upon numerous factors.
Thus, answering the second question in the negative, the Hon’ble Court held that the right to procreate is not an absolute and irrefutable right and requires a careful consideration of the specific circumstances of the case. In furtherance of the same, the Hon’ble Court observed that a fair and equitable strategy can be implemented to streamline the process and to maintain a delicate balance between individual rights and social concerns. Such strategy, in the Hon’ble Court’s opinion, may be based on a two-fold criteria vis-a-vis (1) the prisoner’s parental status i.e., whether the prisoner already has an offspring; and (2) the prisoner’s age i.e., whether owing to long incarceration, the biological clock of the prisoner and their marital partner would stand as an obstacle for them to procreate in the future.
Analysing the Court’s decision
In India, the rights of prisoners have undergone significant evolution over the years and the Courts have reiterated time and again that prisoners do not cease to be human beings and despite incarceration, they are entitled to enjoy all fundamental rights although restricted by the fact of imprisonment. That said, there is substantial room for improvement but the present decision is a welcome step in the right direction in so far as it clarifies the following legal points relating to prisoners’ rights:
- A convict has the right to procreate and parenthood and the same is a subset of Article 21 of the Constitution, and
- Such a right, though an important aspect of right to life, is not absolute and is instead subject to certain limitations as detailed above.
Distinguishing Kundan Singh from Jasvir Singh and Meharaj
At this juncture, it would be appropriate to distinguish the decision of the Hon’ble Court from the previous judgments on the same legal question.
In Jasvir Singh v. State of Punjab, the Hon’ble Punjab & Haryana High Court held that the right to procreate survives despite imprisonment and the same squarely falls within the ambit of Article 21. However, the Court also observed that while all convicts, unless reasonably classified, are entitled to the right to procreate, the State may nonetheless deny the same to a class/category of convicts as the aforesaid right is not an absolute one and is subject to the penological interests of the State. Further, in Meharaj v. State of Tamil Nadu, the Hon’ble High Court of Madras observed that Article 21 cannot be interpreted to envisage a general right for convicts to have conjugal relationships routinely as if denying such rights to a convict is deemed a violation of Article 21, it would imply granting convicts the right to maintain marital relationships continuously, which cannot be allowed, as there must be a distinction between law-abiding citizens and those who violate the law. Additionally, in both the afore-mentioned decisions, the Courts did not address the aspect of prisoners’ right to parenthood and instead merely laid down limitations on the exercise of the right to procreate by a prisoner.
However, vide the present decision, the Hon’ble Court has firstly held the prisoners’ right to procreate and the right to parenthood to be a subset of Article 21. Further, the present decision allows prisoners to exercise the aforesaid rights regardless of the kind and severity of the offence that they have committed, unlike the decision in Jasvir Singh’s Case which allowed the Government to distinguish the grant of the right to procreate between various classes of prisoners’ basis the nature of the offence committed. Moreover, unlike the decision in Meharaj’s Case which provided that a convict could exercise their right to procreate only in extra-ordinary circumstances, the present decision allows prisoners to exercise the said right even in normal circumstances. The only restriction that the Hon’ble Court placed against exercising the said right by a prisoner is whether they already have children or not which can be considered reasonable as in such a case, the person has already exercised his/her right to procreate.
Lastly, another crucial aspect which distinguishes the present decision from the earlier decisions is the manner in which the Hon’ble Court has also given weightage to the procreational rights of the wife of the convict thereby, reinforcing the stance that a woman’s right of reproductive autonomy is an integral part of right to life and personal liberty.
Conclusion
The Hon’ble Court’s decision in the present case stands out particularly due to the fact that though it declares prisoners’ right to procreate and parenthood as irrefutable, it holds the same to be subject to certain restrictions depending on the facts of the case. Here, it is pertinent to note that “life means something more than mere animal existence” and the same includes “all parts of life that contribute to making a man’s life meaningful, complete, and worthwhile”. Pursuant to the same, it is stated that it is human tendency and natural desire for individuals to have biological children, either to add value or meaning to their lives or to ensure family lineage and preserve their family tree. Hence, the Hon’ble Court’s decision, in so far as it clarifies the ambiguous position of law with respect to a prisoner’s right to procreate and parenthood in the aftermath of Jasvir Singh & Meharaj’s Cases, marks a step forward in ensuring that even prisoners can enjoy a “meaningful, complete, and worthwhile” life.
However, despite the stride forward, a lot of questions still remain unanswered as the Hon’ble Court failed to consider and balance certain crucial aspects such as the harmful effects that separation of the married couple would have on the welfare and mental health of the unborn child. Further, while the procreative requirements of male inmates can be arranged for with relative ease, female inmates require specialized services that prisons may not be able to provide for. Additionally, the financial burden which the State would have to bear for making such arrangements is also to be pondered upon.
[i] Kundan Singh v. The State Govt. of NCT Delhi, 2023 SCC OnLine Del 8364, 13.
This blog is written by Nikunj Agarwal and Krishna Preetham Kanthi, Students, Symbiosis Law School, Pune