This article is written by – Abhishree Paradkar, Symbiosis Law School
The Uttarakhand High Court is set to take up a question based on the constitutional rights of prisoners concerning procreation and starting a family.
A bench consisting of Chief Justice R S Chauhan and Justice Alok Kumar Verma heard a petition that was filed by a prisoner’s wife, who sought to receive a short-term bail for her husband so that the two could start a family.
Observations By the Court
The prisoner, whose bail the petition was sought for, had been sentenced to 20 years of rigorous imprisonment and he had already served seven. His wife contended that her husband had been imprisoned merely three months after their wedding and they had no proper time to start a family.
To determine the matter of the prisoner’s bail, the High Court decided that it must examine the rights of a child who shall be born in such a situation. It also merged the petition with a Public Interest Litigation (PIL) that the court was hearing concerning jail rules.
The court also highlighted that a child born in such a situation would be deprived of having a father. It also expressed its intent to examine the rights of the wife of a prisoner.
The court also stated that a child can contend that he has the right to have the company of his father who has been incarcerated. However, the court would also have to decide on the question of whether they can permit for a child to be brought into a world when the child’s upbringing shall be difficult as he will be brought up by a single parent i.e., his mother. Furthermore, it must also be considered, the kind of psychological impact that would take place on the child who has to grow up without a father figure. Therefore, these rights of a child must be pre-decided even though the child is neither conceived nor born.
The division bench also examined the contrasting potential rights concerning the married prisoners and unmarried prisoners. It also noted that an unmarried prisoner cannot be denied rights simply because he is unmarried.
The court’s primary focus concerning examining the rights of prisoners to procreate appears to be on male prisoners who have their partners outside of prison. According to Indian prison rules, if a woman has entered prison while she is pregnant or has a child below 6 years of age then she is allowed to bring up the child in prison. However, an important question that must be asked, is whether the right of the female prisoner to procreate is of concern concerning the fact that the conditions in many Indian prisons are conducive to child-rearing.
This matter is set to be heard next on 31st August. The court has directed an amicus curie as well as another Advocate to advise the court concerning the international legal practices on this issue, in countries such as Canada, the USA, England, and Australia.
Decisions by other High Courts
In October 2020 the High Court of Patna had decided to release a life convict on parole. A similar pattern had been seen in 2015 when the Punjab and Haryana High Court had noted that Article 21 includes conjugal rights for prisoners.