Procreation Right Of Prisoners
- IJLLR Journal
- Jul 29
- 2 min read
Karan Goyal, Department of Laws, Panjab University, Chandigarh
“Imprisonment does not mean farewell to fundamental rights as laid down under Part-III of the Constitution”. Justice Krishna Iyer (Sunil Batra Judgment 1978)
On 12th October 2020, while hearing the writ petition by the wife of a prisoner, Patna High Court in the case of Rajeeta Patel v. State of Bihar and Other (2020 SCC Pat 1759) dealt with the issue of Right to Procreate of prisoners and answered positively in the favour of the right and declared Right to Procreate is part of Right to Life under Article 21 of Indian Constitution and survives incarceration. Reaching this conclusion, court relied on the single bench judgment of Punjab & Haryana High Court (P&H HC) in case of Jasvir Singh and Anr. v. State of Punjab & Ors., (2014 SCC P&H 22479).
In the latter case court discussed at length, the issue of right to procreate vis-a-vis right to life of the prisoners and made certain observations for the same and issued guidelines to Punjab Government to setup Jail Reforms Committee in order to create environment for conjugal and family visits for jail inmates (para 96). Same guidelines were recommended to Bihar Government in the former case. So far, nothing has been ensured by the Punjab Government in this regard (The Print, 2021).
Perspective of the Government
While making the argument counsel for state of Punjab in Jasvir’s Case contended that no such right can be made available to the petitioner as nothing has been mentioned in the Prison Act, 1894. Article 21 of Constitution of India states that: “No person shall be deprived of his life or personal liberty except according the procedure established by law.” In case of D. Bhuvan Mohan Patnaik v. State of Andhra Pradesh (1975 3 SCC 185) Supreme Court of India clearly laid down that because of mere conviction no fundamental right can be denied to convicts which they otherwise possess (para 6). Article 21 plainly states that without procedure established by law no one will be deprived of his right to life, but the argument of counsel for State of Punjab reflects that no such right will be provided except if provided by law. This is how state acts when it comes to the protection of fundamental rights of individual including prisoner. Hesitancy is common when need arises for the promotion and practice of human rights in India which are developing with the development of international norms and jurisprudence of fundamental rights. Such regressive practices are shared in India, due to pessimistic attitude towards reforms and lack of political will.
