A Critical Analysis Of Conjugal Rights Of Prisoners In India

Index

S. No Title Page No.

Declaration
Certificate
Acknowledgement
Abbreviations
CHAPTER -I
INTRODUCTION
1.1 Introduction 5
1.2 Statement Of Problem 10
1.3 Scope Of Research 11
1.4 Objective Of The Study 11
1.5 Hypothesis 12
1.6 Research Methodology 13
1.7 Literature Review 13
CHAPTER II 17-41
ORIGIN AND DEVELOPMENT OF THE CONCEPT OF
PRISONER’S RIQHTS

2.1 Introduction 17
2.2 Development Of Prisoner’s Rights Through Ages In India 20
2.3 Evolution Of Prisoners‘ Rights In India 37
2.4 Committee Reports 39
CHAPTER III 42-55
PRISONER RIGHTS: CONSTITUTIONAL PERSPECTIVE
3.1 Introduction 42
3.2 Historical Background 42
3.3 Rights Of Prisoners 43
CHAPTER IV 57-71
CONJUGAL RIGHTS : A CRITICAL STUDY IN INDIAN
AND HUMAN RIGHTS PERCEPECTIVE

1
4.1 Introduction 57
4.2 History Of Conjugal Visit 57
4.3 Mulaqat System 60
4.4 British Period Mulaqat System 61
4.5 Understanding Conjugal Rights 61
4.7 Philosophy For Established Order Of Prisons And Conjugal 62
Visitation
4.8 Human Rights Issues Pertaining To Conjugal Rights Of 65
Inmates
4.9 The Right To Life, Equality And Privacy And Restitution Of 67
Conjugal Rights
4.10 Human Necessities 68
4.11 Family Of The Criminal 69
4.12 Social Thought 70
CHAPTER V 72-82
PRISIONER’S CONJUGAL RIGHTS: AN INDIAN
PERCEPECTIVE
5.1 Introduction 72
5.2 Concept Of Conjugal Rights Of Prisoners 72
5.3 Arguments In Favour Or Towards Conjugal Affiliation Of 73
Prisoners
5.4 Modes Of Conjugal Association 74
5.5 Right To Conjugal Visitation Under Article 21 Of The 76
Constitution
5.6 Rights Of The Spouse In Favour Of Conjugal Visitation 78
5.7 Possible Benefits Of Conjugal Visitation Rights 80
5.8 Potential Consequences Of Granting The Right 81
CHAPTER VI 83-97
JUDICIAL ANALYSIS OF CONJUGAL RIGHTS OF
PRISONERS IN INDIA
6.1 Introduction 83
6.2 Constitutional Framework 83
6.3 Statutory Framework 85

2
6.4 Judicial Decisions 86
6.5 Promiment Cases Of Conjugal Rights In India 90
6.6 Law In Other Jurisdictions 93
CHAPTER VII 98-105
CONCLUSION AND SUGGESTIONS
Bibliography 106-108

S no. ABBREVIATION

1. ACHR: Asian Centre for Human Rights

2. AIR: All India Reporter

3
 3. AJIL: American Journal of International Law.

4 CEDAW: The Convention on the Elimination of all Forms of Discrimination

against Women

5. ECOSOC: United Nations Economic and Social Council

6. HC: High Court

7. ICC: International Criminal Court

8. ICCPR: International Covenant on Civil and Political Rights

9. ICESCR: International Covenant on Economic, Social and Cultural Rights

10. ICJ: International Court of Justice

11. ICRC: International Committee of the Red Cross
12. MCOCA: Maharashtra Control of Organized Crime Act
13. NCRB: National Crime Record Bureau
14. SC: Supreme Court
15. SCC: Supreme Court Cases
16. U.P: Uttar Pradesh
17. UDHR: Universal Declaration of Human Rights

18. . UN: United Nations

19 UOI: Union of India

CHAPTER I

INTRODUCTION

1.1 Introduction

The UN Committee on Economic, Social and Cultural Rights, the independent expert which
monitors state compliance with the obligations under the International Covenant on
Economic, Social and Cultural Rights, has stated, “Health is a fundamental human right

4
indispensable from the exercise of other human rights”. On this basis, the health status of
prisoners is a measure to assess the degree to which the rights of persons in detention are
fulfilled or denied in a much broader sense.

Denying basic rights to prisoner in custody is an ascertained strike on human dignity which
can destroy the personality of an individual and whenever human dignity injured, civilisation
takes a step backwards. It ruins the prisoner both physically and mentally. They stay in a
condition of unending apprehension and horror whenever they recall their custodial agony.
Haunted by denial of basic rights presumably affect the conjugal life of prisoner.

Conjugal rights are rights of the prisoners to be able to visit their family and spouse. The
society is torn between the boons and the banes of providing such rights to the prisoners.
Some justify it to be complementary of right to life, while others point out the difficulties in
conferring such a benefit. This debate resurged again before the Punjab and Haryana High
Court wherein the Court emphasized on the need to provide for such rights for the
rehabilitation of the prisoners. Different international jurisdictions have their own rationale
with respect to conjugal rights to prisoners. The European Convention on Human Rights has
recognized conjugal rights to be a significant human right. Sweden and France are two of the
most liberal countries that have provided for such rights in its entirety; but the same is not the
case in the United States where the state laws on punishment are considered more sacred than
the institution of marriage. Weighing the pros and cons, it can be perceived that the benefits
of such rights overpower the drawbacks and providing for such rights is the need of the hour
as upheld by the judiciary in a recent case decided by the Madras High Court.

In reviewing international data on prison, including the right to health, is occurring on a

global scale. Today, over nine million people are incarcerated in penal institutions
worldwide. As this figure represents only the prison population at any moment in time, it
significantly underestimates the total number of persons who pass through prisons each year,
often for short periods of detention. Indeed, annual admissions to prisons in countries across
the world are estimated to be at least double, and in some cases 10 times, the actual number
of people incarcerated on any single day. A significant proportion of prisoners in most
countries are members of groups that suffer social, economic or ethnic/racial discrimination
in the broader society. Many of the same factors that make these populations more likely to
find themselves in conflict with the law, and therefore incarcerated, also mean that they suffer
disproportionately from a poor health status. The right to health of prisoners is articulated

5
within economic, social and cultural rights, under which the right is universal and non-
discriminatory in application. It also finds expression within civil and political rights
mechanisms.

The Judiciary expanding the ambit of ‘life’ in the case of Francis Coralie v the
Administrator, Delhi has stated that life is not just the mere animal existence, it includes all
the bare necessities of life such as adequate nutrition, clothing, shelter and all that is
conducive for a living. In the expanse, there is a question posed to the Judiciary, whether the
right to life enjoyed by prisoners includes the right to procreate, conjugal visits and artificial
insemination. In G. Bhargava, President M/s. Gareeb v. State of Andhra Pradesh, the Andhra
Pradesh High Court denied the provision for any such right to the prisoners on the ground
that such a provision was not provided in the AP Prison Rules, 1979 and conferring such a
benefit to one prisoner will be unfavourable to the others. However, two years down the line
the Punjab and Haryana High Court held that the ‘Right to Procreate’ falls within the purview
of right to life and personal liberty enshrined in Article 21 of the Constitution and thereby
recognised the ‘right to conjugal visit’ or ‘right to procreation’ as a fragment of the ‘Right to
Life’ of Prisoners.

The UN Human Rights Committee, the independent expert body which monitors state
compliance with the obligations under the International Covenant on Civil and Political
Rights, has stated for example that although there is no specific right to health provision
within the Covenant, questions of health in detention could be raised under the right to life 1 or
the right to humane treatment 2. Indeed both the right to life and right to humane treatment
impose positive obligations upon countries that have ratified the treaty to protect the lives
and/or well-being of persons in custody, which has often been interpreted to require
government authorities to take action to safeguard the health of prisoners. As will be explored
below, civil and political rights mechanisms within the UN and regional human rights
systems provide important protections for the health of persons in detention.

PRISONS AND PRISONERS

Conjugal rights: Since India follows the reformative theory of penology, prisons being the
most accepted and common form of punishments, it is believed that visits by family can help
the prisoner reform and rehabilitate. Such visits can be used by the prison officials as a tool to

1
Article 6, International Covenant on Civil and Political Rights 1966.
2
Article 10, International Covenant on Civil and Political Rights 1966

6
obtain obedience from inmates. Such rights are not very popular in India because there is no
legislation governing the same. But, the judiciary has taken the broader path and highlighted
the importance of providing decent living conditions to the prisoners. In the cases of Jasvir
Singh v State of Punjab and Meharaj v Secretary, State of Madras, it has changed the
perspective of the society that the prisoners are wild beasts who do not deserve the basic
amenities necessary for living a life with dignity. The Courts have reiterated the fact time and
again that just because a man is punished for a wrong that he has done, it does not mean that
he ceases to be a human being.

Prisoner’s Rights Right to get information: The main basic freedom of prisoners is to
know their rights and duties through statutes. So, the Jail Manual and Acts should be cheap
and fairly available to them. Right to get information is the modern concept of liberty to the
people. Natural justice demands that before the enforcement of law, it must be promulgated
and published. It must broadcast in some intelligible way so that all people can come to know
its contents and follow it. Access to law is the basic freedom, which is fundamental is State
made laws. In general every prisoner retains all rights enjoyed by free citizens except those
lost necessarily as are incidents of confinement.

Right to Medical Facilities: Neglect in medical treatment is neglecting its duty by the State.
To provide a hygienic atmosphere to the prisoner is also the duty of the State. Right to
Speedy Trial: In Kedra Pahadiya v. State of Bihar 3, the Supreme Court held that a right to
speedy trial is a part of the fundamental right envisaged under Article 21 of the Constitution 4.
So delay in disposal of cases is denial of justice. So the Court is expected to adopt necessary
steps for expeditious trial and quick disposal of cases. Long delay of cases in various courts
without limitation of adjudication is the infringement of fundamental right. In U.S.A, a
speedy trial is one of the constitutionally guaranteed rights.

Pre-trial Release: Pre-trial release in the present set up in criminal administration of justice is
a rule rather than an exception. The accused can ask for bail before his conviction. The
undertrial prisoners should get fair and free chance to exercise this right before the court. By
keeping undertrial prisoners in jail the economic conditions of their family may be ruined.
Detention of undertrial prisoners even for a short period can destroy them their family life.
The undertrial prisoners, who are accused of multiple offences and who have already been in
jails for the maximum term for which they be sentenced on conviction, even if the sentence
3
AIR 1983 SC 1167 at p. 1169.
4
The Constitution of India

7
awarded to them were consecutive and not non convention, should not be allowed to continue
to remain in jail for a moment longer, since such continuance of detention would be clearly
violative of not only of human dignity but also of their fundamental right under Article 21 of
the Constitution. 5

Bail one of the main reasons for it is the highly unsatisfactory bail system in India. It suffers
from a property oriented approach. The courts mechanically and as a matter of course insist
that the accused produce sureties and the latter must establish their solvency. This operates
highly against the poor. In the above case said, “Magistrate must, abandon the antiquated
concept that pre-trial release could be ordered only against money. This concept was outdated
and did more harm than good. “Thousand of poor people are in jail simply because they
could not afford bail or did not know how to make the application. 6 . If the court is satisfied
that the accused has a family tie in his community and is not likely to abscond then the
accused ought to be released on personal bond without sureties. In case tribble by a
Magistrate as a summary case and where the investigations are not concluded within 6
months from the date of arrest, the Magistrate ought to stop the investigation. The most
shocking aspect of the condition is that many undertrials are there for petty crimes and would
have spent less time behind bars had they been convicted than they do as undertrials. Jails are
overcrowded also because many prisoners cannot furnish bail.

Community Amenities to Condemned Prisoners: They should not be denied any of the
community amenities, including games, newspapers, books, moving around and meeting
prisoners and visitors subject to reasonable regulation of prison management. If prisoners
desire solitude for reflection and prayer or opportunities for meeting family, such facilities
should be liberally granted taking into account his personal needs and mental agony.

Right to Vote: The undertrial-prisoners should get their franchise rights. They should be
allowed to participate in election and to cast their votes. Right to franchise is a democratic
right and this must be exercised inside or outside the jail with an escort party.

Wage: The prisoners ought to be paid wages at or above the minimum wage. 7(See in the
Prison Reforms Enhancement of Wages case ). Article 4 of the Universal Declaration of
Human Rights, which read “no one shall be held in slavery.” Article 23(1) which guaranteed
the “right to work, free choice of employment just and favourable conditions of work and
5
AIR 1979 SC 1819; AIR 1979 SC 1377.
6
Motiram’s case: 1979 (1) SCR 335.
7
AIR 1983 Ker.261

8
protection against unemployment.” Article 23(3) which guaranteed “the right to remuneration
ensuring for a dignified existence for self and family.” Article 10(1) of the International
Covenant of Civil and Political Rights “all persons deprived of their liberty shall be treated
with humanity and respect.”

Right to Publish Book: In Prabhakar Sanzgiri’s case the convict had written a book “Inside
the Atom” dealing with physics. He was prevented from publishing the same under the
Defence or Indian Rules 1962 and the Bombay Conditions of Detention Order 1951. The
court held that no prejudice to the Defence of India or to public safety or to the maintenance
of public order was possible and permitted the publication.8

Right to Receive Books and Magazines: Kunnikal Narayan was prevented from receiving
“Mao literature” by the prison authorities and challenged the same through a petition in
Kerala High Court. As no passage from these books could be shown, if read, to endanger
security of the State or prejudice public order, the books were allowed. The court held that
there was no grounds to prevent Kunnikal from obtaining these books. Article 19(i)(a)
includes the freedom to acquire knowledge, to pursue books and read and any type of
literature subject only to certain restrictions for maintaining the security of State and public
order.9

Right to Have Interview with One’s Lawyer: Regulating the right of a prisoner to have
interview with a legal advisor of his choice is violative of Article 14 and 21 of the
Constitution as such a regulation is unconstitutional and void. According to the Supreme
Court it is reasonable for prisoner to have interviews with his legal adviser at any reasonable
hour during the day after taking appointment from the Superintendent of the jail. The
appointment must be given by the Superintendent without any avoidable delay. The
interviews need not necessarily take place in the presence of a nominated officer. But if any
officer is appointed to be present during the interview, he may watch the interview from a
distance but not so as to be within hearing distance of the detenu and the legal advisor. 10

Right to Free Legal Aid: It is the constitutional right of every accused person who is unable
to engage a lawyer and secure legal services on account of reasons such as poverty, indigence
or incommunicado situation to have a free legal service provided to him by the State and the

8
AIR 1966 SC 424
9
AIR 1973 Ker. 97
10
AIR 1981 SC 746

9
Stats is under a constitutional mandate to provide a lawyer to such accused person, if the
needs of justice so require.

1.2 Statement Of Problem

The present discussion is an attempt to explore the use of economic, social and cultural rights
mechanisms, and those within civil and political rights, as they engage the rights of prisoners,
and identifies the minimum legal obligations of governments in order to remain compliant
with human rights norms as defined within the international case law.

In India, conjugal visit is not permitted. A conjugal visit is a private meeting between a
sexual partner with an inmate of jail. The original purpose for marital visit is to urge
detainees to keep up family ties. The security of human rights through the criminal justice
delivery system is a fundamental component of any system administered by the principle of
rule of law. The Supreme Court of India has been very vigilant against infringement upon the
Human Rights of the detainees by giving a liberal and complete importance to life and
personal liberty. This paper deals with issues of human rights related to prisoners’ in the
prison system and focuses on the prisoners’ rights. Human rights are the rights people have
by virtue of their humanity. The reason of the present study is to recognize the key issues of
the problem faced by detainees and their spouses. Further the focus is to help enactment of
legislation and policymakers in figuring of strategies based on the ground reality.

In addressing these issues, this article adopts a holistic approach to the definition of the
highest attainable standard of prisoners’ rights. This includes a consideration of adequate
standards of general medical care, including preventative health and mental health services. It
also examines the question of environmental health, and those poor conditions of detention
that may exacerbate health decline, disease transmission, mental illness or death. It examines
the approach to conjugal rights of prisoners of the United Nations human rights system and
its various monitoring bodies, as well as the regional human rights systems in India. Based
upon this analysis, the paper draws conclusions were drawn on the current fulfilment of the
rights of prisoners.

1.3 Scope Of The Study

The study is basically a doctrinal research with a view to find out whether the rights of the
prisoners are well protected or not. In this regard, various aspects like the comments,
observations, and pronouncements of the judiciary in upholding the rights of the prisoners in

10
relation to the rights guaranteed to the ordinary citizen under the Constitution, action taken at
Central and State level in response to Judicial Activism so as to incorporate such rights in the
Statutes and Prison Manuals, the contributions made by The National and State Human
Rights Commission and Human Rights Courts constituted under The Protection of Human
Rights Act, 1993 have been taken into account for the analysis. The present topic for the
research study is “A CRITICAL ANALYSIS OF CONJUGAL RIGHTS OF PRISONERS IN
INDIA”.

Even though different kinds of Prisoners are confined in Prisons, the occupancy rate of
Remand / Undertrials and Convicted. Prisoners is the highest. Under this circumstance, it is
considered that it will be more appropriate to analyse their rights alone in the proposed study.
Hence, the researcher has concentrated in analyzing the rights of prisoners in prisons Remand
/ Under-trials and Convicted Prisoners

1.4 Objective of research

1. To analyse whether the Constitutional rights of an ordinary citizen which are extended to
the prisoners are full- fledged in all aspects, except those that are to be necessarily denied
because of the condition of imprisonment.

2. To analyse the necessity of incorporating the conjugal rights guaranteed to ordinary

citizens under the Constitution which are extended to the prisoners, in the existing relevant
statutes, laws, rules, and regulations regarding the management of prisons and treatment and
supervision of prisoners.

3. To analyse whether there is any gap between the theory and practice in implementing the
Rights of Prisoners in the day-to-day administration of Prisons.

4. To analyse whether it is considered as a mercy or reluctance or denial on the part of the

prison authorities in extending the rights to the prisoners.

5. To analyse whether there is sufficient funds in establishing the rights of prisoners in

prisons in such matters where the financial commitment arises.

6. To suggest measures and recommendation for the better implementation of the rights of
prisoner.

It is believed that the study of aforesaid objectives will unfold the mystics of prison
administration mal-functioning and will pin point the grey areas warranting immediate

11
attention so as to establish the just social order in the society. Principally four questions arise
for determination in this research. The first question is whether a prisoner is entitled to claim
rights during his incarceration. If so, what should be the rights available to him. The second
question relates to the reasonableness of the provisions debarring prisoner from claiming the
rights during incarceration. The third one is regarding object and attitude to punishment,
which should be consistent with civilized notions of human rights. The fourth relates to the
rehabilitative approach with the intention to bring the prisoner back to the main stream of
society should not be foreign to the prison policy.

1.5 Hypothesies

Taking into account, the above said objectives, the following hypothesis is formulated: The
emergence of Prisoners Rights in India is an offshoot of the Judicial Activism /
pronouncement / Judgement by extending the Constitutional Rights multi dimensionally. So,
many Prison Reforms Commissions and Human Rights Commissions reiterated the
Judiciary’s pronouncements on the Prisoners ‘Rights. Even then, it is considered that there is
lacuna in its actual implementation. In order to test the above said hypotheses, the following
points are raised and analysed in detail in the proposed study:

 The spirit of the Judiciary in establishing the Rights of the Prisoners is taken up in the right
sense and full vigour and followed in Prison management and treatment of Prisoners.

 The attempts are made to seek amendment in the existing statutes, Manuals and other Laws
connected with Prison Administration and prisoners conjugal rights in order to shower the
rights mandatorily.

 The steps have been taken by the Prison Authorities to make the Prisoners aware of their
rights and duties.

 The attitude of the Prison Authorities towards the implementation of the conjugal rights as
well as fundamental rights of Prisoners in Prisons is conducive and humane.

 . The assistance extended by the Centre to the State Governments to improve the Prison
atmosphere and living condition of prisoners in Prisons with an ultimate aim of protecting the
dignity of prisoners as a human being is sufficient and properly utilized and that whether
improvement is achieved as desired.

1.6 Methodology

12
Content Analysis and Descriptive Method is the methodology applied to accomplish this
research. Researcher has prepared the content analysis from primary as well as secondary
data. Researcher has collected the data from various sources i.e. questionnaires, interview
methods, data from state level and district level, previous researches conducted on the similar
subject, various publications, journals, judicial judgments passes in various courts of India,
articles and Literature review. In non-doctrinal research data is collected from field
annotations, reports, case observations, analytical and proportional study of article whereas in
Doctrinal research there will be inclusive and reasoned study of caucus, judicial decree,
mechanism, guidelines of truce and conventions, realistic insinuation of International and
National statues . For this study data has been unruffled from intensive field work.
Information for this study has been composed from both qualitative and quantitative
information.

For congregation the objective of the study data has been collected from primary and
secondary data. Primary data was collected from the prisoners and jail authority by using
household schedule, questionnaire, interview guidelines, case study and observation methods
and secondary data has been collected from population census, precedent record file of the
prisoner fretful with the jail authorities and all permissible, legal and judicial records of the
prisoners .

In array to comprehend and substantiate crime of the prisoner, jail authorities were also
interviewed respectively. Simple random sampling and convenient sampling techniques has
been proposed for the study.

1.7 Review of The Literature

HANDS OFF DOCTRINE A review of the literature is crucial to an understanding of the

evolution of prisoners* rights. Unfortunately, few books deal with the subject; the only
sources come from law review articles, which of course are not written from the sociological
perspective. Therefore, this review of the literature comprises an analysis of the writings of
lawyers, prisoners and prison officials not sociologists. The bulk of the literature consists of
“appeals” to the members of the judiciary to terminate their tenacity to the hands-off doctrine.
First, this review will examine the tenets and justifications of the hands-off doctrine. Second,

13
the trend away from the hands-off doctrine will be discussed. Finally, the various remedies
available to the inmate for his redress of grievances will be surveyed.

Traditionally, the organization and maintenance of the prison system was left under the sole
auspices of the prison official. The prisons are not a part of the judicial branch of the
government, but they constitute a portion of the executive function. In 1964 the management
of the prison system was placed under the jurisdiction of the Attorney General. Therefore, the
judiciary has been reluctant to advise prison officials how to administer the institution.

In Banning v. Looney in Vogelman11,The judicial basis for granting this wide administrative
discretion was founded on the belief that the "courts were without power” to supervise prison
administration or interfere with the ordinary rules and regulations of penal institutions.

Beyond the Ken of the Courts according to it , A Critique of Judicial Refusal to Review the
Complaints of Convicts, one of the first law review articles on this subject, the hands off
doctrine "represents a denial of jurisdiction over the subject matter of petitions from prisoners
alleging some form of mistreatment or deprivation." (Yale Lav; Journal. 1963 506.) These
deprivations may be attributable to the wide discretionary powers of the officials, to whom
the courts grant unlimited jurisdiction. One of the primary reasons for the courts adherence to
the hands off doctrine is the judicial belief that review will undermine the authority structure
of the prison officials. The administrators would be thwarted in their attempt to accomplish
the goals of the prison system.

It is "beyond their power to review the internal management of the prison system." given in
Yale Law Journal. 1963: 508.

Another one of the first law review articles to deal with the area of prisoners1 rights is
"Constitutional Rights of Prisoners: The Developing Law." The authors conclude that "a
study of the cases involving alleged mistreatment indicates that the courts have been so
influenced by the dogma of the independence of prison authorities that judicial intervention
has been limited to the extreme situation." (University of Pennsylvania Law Review. 19&28)

In Goldfarb and Singer 1970: 179 journal, recognizes three reasons that the courts
maintain to legitimate the hands-off doctrine.

First, the administration of the prison system is an executive function and any change in the
system should be initiated by the agencies of the executive branch. Second, the judiciary
11
1 9 6 8 : 52

14
claims a lack of expertise in matters of penology. The court’s believe that the prison officials
have first-hand information and are more able to judge what programs and regulations will be
most effective for a smooth running prison system. Third, the courts fear that judicial
intervention will destroy the foundation of prison discipline. The courts are afraid that they
will transfer power to the inmates, "which will be used to place the prison administrators in a
compromising position. In essence, the judicial bodies are afraid to meddle in prison affairs.

In conclusion, until the sixties the courts stifled any development in the law of prisoners*
rights by adhering to the hands-off doctrine. The courts did not interfere with prison
administration because of their alleged lack of expertise in penology and their fear that they
would shatter the authority structure of the officials.

In Goldfarb and Singer12, it is mentioned “Historically, there have been few effective routes
through which inmates could complain about their treatment or have any effect on the
decisions that are made about their treatment or have any effect on the decisions...about their
lives."
At this point it will be useful to examine the factors that led to the demise of the hands-off
doctrine.

According to the critique entitled "Beyond the Ken of the Courts," the importance of the
maintenance of the authority structure was used by officials to prevent intervention by the
courts.

305 Federal Reporter. 1962: 285 it is given that However, "mere grant of authority cannot
be taken as a blanket waiver of responsibility in its execution,, Numerous federal agencies are
vested with extensive administrative responsibilities. But it does not follow that their actions
are immune from judicial review.“

Why should correctional officials prevent the court from supervising individuals that the
court assigned to the prison. Frustration of prison objectives was put forth as another reason
for judicial abstention in prison affairs. Retribution, restraint, rehabilitation and deterrence are
the espoused goals of the correctional system. How could judicial scrutiny impede the
attainment of these goals? On the other hand, court intervention could insure that the
appropriate level of deprivation is maintained; the punishment would fit the crime. The courts

12
1970: 179

15
could also determine the priority of the mentioned goals. Without some form of review all the
prison rules and regulations are "self-validating.

Yale Law Journal, 1963* 523 suggests the regulations should be reviewed in order to
maintain consistency with correctional objectives. The courts should be cognizant of the "ego
involvement" of prison officials, and recognize the judiciary’s potential role in reform, which
could proceed from their insistence on "an adequate remedial mechanism." "If the regulations
need to be maintained as a source of power for the guards, then it should be struck down."

Who were the outspoken critics of the hands off doctrine? Dean Paulsen of the University of
Virginia Law School spoke out against the refusal of the courts to review prisoner litigations.
This critic asks "what does the Constitution require in a prison setting." (Paulsen, 1971:
108*K) Only the courts can determine what prison conditions and what prisoners* rights will
fulfil the requirements of the Constitution.

Paulsen, 1971: 1085 provides The issue is not whether prisoners should he granted the
complete range of rights guaranteed the members of free society, but only whether the courts
should determine the extent or the limits of prisoner’s rights. "Part of the problem is that
prison life is filled itch low visibility decisions. Very few records are kept, and the
opportunity for arbitrary treatment is very great indeed." The involvement of the court in
prison administration will increase the public’s view and knowledge of the official’s
decisions, and perhaps internal housekeeping will improve.

CHAPTER II

ORIGIN AND DEVELOPMENT OF THE CONCEPT OF PRISONER’S RIQHTS

2.1 Introduction

Crime is inevitable in human society. No doubt, we have progressed a lot in every sphere of
life and struggle to achieve immortality is going on, but yet in this journey from animal way

16
of life to the human way of life, still we are haunted by the thought of animal instincts. Every
where some human beings have fallen outside the pattern of permitted conduct. It is best to
fact that crime cannot be abolished except in a non-existence utopia. Commenting on this
aspect Durkheim in his treatise a crime as a normal phenomenon says, “a society composed
of persons with angelic qualities would not be free from violation of the norms of that
society”. In fact, crime is a constant phenomenon changing with the social change.

At the same time all civilized societies want a peaceful life away from all clutches and
wrathful response of non-socialized aggressive lot and it is the paramount duty of the state to
provide a sigh of relief to the society.

Punishing the offender is a primary function of all civil states, for reducing the incidence of
criminal behaviour either by deterring the potential offenders or by incapacitating and
preventing them from repeating the offence or by reforming them in to law abiding citizens.
With new criminological development particularly in the field of penology, it was generally
realized that punishment must be in proportion to the gravity of the offence. It was further
suggested that reformation of criminal rather than his expulsion from society was more
purposeful for his rehabilitation.

Today old barbarous methods of punishment are completely abandoned. The modem notions
of crime causation, that crime is a result of pathological aberrations and other social factors,
are reflected in the criminal justice administration of which sentencing plays a major role.
The attitudes towards criminals at a given time in a society represent the basic values of the
society today. Imprisonment presents a most simple penal and common form of sentencing
for incapacitating the criminal. It proved to be efficient method of temporary elimination of
criminals apart from being a general deterrent and an individual deterrent.

The origin of prison is inter-linked with the system of imprisonment, which originated in the
first quarter of nineteenth century. Initially, prisons were used as detention houses for under
trials. Person who were guilty of some political offence or war crime or who failed to pay
their debts were lodged in prison cells with a view to extracting confession from them or
securing the payment of debts. Subsequently, with the march of time and advancement of
knowledge and civilization, the conditions of prisons also improved considerably.

Since the present day penology centres round imprisonment as a measure of rehabilitation of
offenders, the prisons are no longer mere detention houses for the offenders but they seek to

17
reform inmates for their future life. Thus, the institution of prison serves a dual purpose of
eliminating criminals from society and reformation and rehabilitation the offenders under
institutional treatment by blanketing out conditions, which in the first place turned them in to
law- violators.

The attitude of society towards prisoners may vary according to the object of punishment and
social reaction to crime. Conditions of imprisonment in civilized countries have under gone
radical changes in recent decade. In recent times, prisoners have attracted the attention of
jurists, Sociologists and Protagonists of human rights all over the world.

The truth is that the philosophy of prisoner’s rights appears to have stemmed directly from
consideration of human dignity and citizenship. The basic rights can’t be abrogated by the
mere fact of imprisonment. There was a time when prisoners were considered to be persons
devoid of any rights and even their basic rights were deemed to be confiscated, the moment
they were arrested and imprisoned. However, prisoner’s rights gained importance with the
passage of time. It is also pertinent to note that now a day, human rights have become the
yardstick for determining the status of a country's civilization. It is not uncommon that every
problem of the day has been infested with some human rights dimensions in one way or
others, and prison administration are no exception to this general rule.

Human Rights Jurisprudence demands that while administration of justice balancing society
interest with that of the individual's interest, individual human rights should not be affected.
Ignoring accused or prisoners and not making any attempt to provide them solace or
restitution would be a challenge to protection of his human rights. Every human being is
entitled to his human rights i.e. those minimal rights which every individual must have
against the State by virtue of human being, a member of a human family, irrespective of any
other consideration. Human right means individual rights of freedom of thought to be
fundamental for a civilized society. They include freedom of expression, movement and
association, implementation of due process of law, equality before the law and the right not to
be subjected to cruel or degrade the punishment. According to justice Krishna Iyer, the
central concern of law and justice must be humanity.

Humanity will be meaning full if it is supported by humanism dignity of a human, as an

individual can be respected and maintained by others if they follow human values. It goes
without controversy that every innocent, truthful, law abiding and non corrupt person is

18
entitled to fundamental rights. But there is no agreement about the fundamental rights of
criminal or prisoner.

However, now the Supreme Court has made it clear that with a degree of difference in
application, even criminals are entitled to fundamental or human rights. Therefore, all police
and jail authorities should now treat the accused and prisoners with human grace and dignity.

Article 10 of the International Covenant on Civil and Political Rights, 1966 enthusiastically
proclaims that the persons deprived of their liberty shall be treated with human dignity and
with respect for the inherent dignity of human person. The prisoner is not supposed to have
left an army of right at the prison gate; the human commodity is precious of all. Frankly
speaking one can hardly afford to reduce prisoners to vegetable by denying fundamental
rights to them. Undoubtedly there has been a shift in emphasis from retribution to
reformation. The reformative strategies and rehabilitative techniques are main stay in modem
prison justice system. The European Convention on human Rights is one of the major
documents which added fire to the human right movement. It provides and prescribes some
important safeguards against the arbitrary and fanciful acts of State. Prisoners and the all
rights of the prisoners in India were kept in abeyance till the realization of the new dimension
of personal liberty (from Gopalan to Maneka Gandhi case) that covers even prisoners and
their rights under our Constitution. These aspects were realised very late in our country as
compared to the western countries.

In the pre-independent India when citizen did not have any fundamental freedoms, it was not
possible to think of prisoners rights. But after independent India when the Constitution was
adopted and people got their fundamental rights guaranteed, prisoners’ rights also began to
draw the attention of the legislators and the judiciary. The Constitution of India not
enumerates any short of fundamental rights to the prisoners specifically, but at the same time
it also can’t be said that it is not available to the prisoners expect expressly excluded.

Thus, the fundamental rights, which also include basic human rights, continue to be available
to a prisoner. The judiciary through the process of judicial activism has expanded the scope
of the various freedoms enshrined in part III of the Indian Constitution. The Court have
recognized the right to speedy trial, right to physical protection, right to expression, right to
meet family etc. The Court has remarkably evolved a workable and balanced compromise
between varying social and individual interest in consonance with the spirit of the times as
well as theme and thrust of the Constitution.

19
2.2 Development Of Prisoner’s Rights Through Ages In India
2.2.1 Ancient India
The historical Indian society exhibited all of the traits of a scriptive social machine. Many
crimes and wrongs have been sins and entailed secular punishments and additionally spiritual
sanction. A well-prepared machine of prisons is thought to have existed in India from the
earliest instances. In Vedic duration, management of justice did now no longer shape part of
the kingdom responsibilities. Offences like murder, robbery and adultery are stated however
there may be not anything to produce that the king or a licensed officer as a judge, both in
civil or crook cases, handed any judicial judgment. Some critics have counseled that
Sabhapati of the later Vedic duration can also additionally had been a judge13.
The Dharma Sutras and the Dharma Shastras (the earliest is that of Manu and different
critical Dharma Shastras are the ones of Yagnavalkya, Vishnu and Narada), display a extra or
much less full-fledged and well-evolved judiciary. Law or dharma become now no longer a
degree handed via way of means of legislature in Ancient India, it become primarily based
totally upon Shrutis (hearings) and Smritis (remembrance). It become enforced via way of
means of social approval or the dread of hell and now no longer via way of means of the
pressure of the kingdom. King become at its head and it become his pious obligation to
punish the incorrect doers, if he fails from discharging it, he could visit hell. 14 Sutras and
Shastras, we not often come throughout the phrases jail or jailor. The prisons returned then
have been most effective locations of detention in which an wrongdoer become detained till
trial and judgment and the execution of the latter happens. The shape of society in Ancient
India become based at the ideas enunciated via way of means of Manu and defined via way
of means of Yajna Valkya, Kautilya and others15. Among numerous forms of corporal
punishments are branding, hanging, mutilation and death, the imprisonment become the
moderate form of penalty recognized prominently in historical Indian penology.
Imprisonment occupied an normal region most of the penal remedy and the sort of Corporal
punishment become counseled in the Hindu scriptures. The primary goal of imprisonment
become to maintain away the wrongdoers; they may not defile the participants of social
order16. These prisons have been definitely darkish dens, cool and damp, unlighted, and
unwarmed. There was not proper association for the sanitation and no method of facility for

13
M.B. Mahaworkar, Prison Management, Problems and solutions, , Kalpaz Publications, Delhi. 2006, p.43
14
Basham, A.L: The Wonder That Was India, Macmillan Company, New York, 1959, pp.133,247.
15
K.V.R. Aiyanger, "Some Aspects of Ancient Indian Polity" Madras, 1935, p. 94
16
Vasudev Upadhya, "A Study of Hindu Criminology", Chawkhambha Orientalia, Varanasi, 1978, p. 322.

20
human dwelling17. To hold regulation and order in society, to eliminate the criminals or
wrongdoers via way of means of the usage of pressure and punish the accused in public
locations, it'll create worry amongst participants of the society. At the time punishment could
be very cruel, inhuman remedy like as bounded labour and slavery.
Kautilya said in his Arthashastra, that the jail need to be built in a capital and offer separate
lodging for guys and women. He become in my opinion of the view that as some distance as
feasible the prisons need to be built street aspect in order that monotony of jail lifestyles may
be decreased to a considerable extent, the issues of prisoner’s lifestyles and their welfare. He
is of the opinion that each fifth day a few prisoner’s need to be made loose who pay a few
money as satisfactory or go through a few different moderate corporal punishment or promise
to work for social uplift. Kautilya has stated that, the responsibilities of the jailor who
constantly continues eyes at the motion of the prisoner’s and the right functioning of the jail
authorities. Kautilya has long past deep to prison lifestyles and opines that the prisoner
escaping after breaking the jail walls, have to be put to death. This suggests that the prison
authority referred to as Bandhanagaradhyaksa become constantly vigilant and alert and no
evil movement may want to get away his eyes.18 Kautilya said that during his Arthasastha, the
responsibilities of the jailer are to offer centers to prisoners and imposed fines for misconduct
of their responsibilities. He similarly explains the circumstance of prisoner‘s stringent fines
are imposed whilst the prisoners tried to get away.
The prisoners of the Pre Buddhist instances have been horrible indeed. There have been risky
and the prisoners have been stored below chains and heavy loads, and whipped at the
slightest pretext. Whipping become a precept punishment in Europe and in India withinside
the historical instances and in even the Middle Ages the prisoners have been brutally chained
and whipped each now and then. In the early years of Ashoka, there has been an unreformed
jail wherein maximum of the conventional fiendish tortures have been inflicted and from
which no prisoner came out alive 19. But from his ethical edicts which belong to his later
duration of rule become stimulated via way of means of Buddhism. It seems that many penal
complex measures have been taken. Professor Ram Chandra Dikhitar in his book entitled
'Mauryan Polity', has counseled that Ashoka become acquainted with the Arthashastra, for
Ashoka speaks of as plenty as twenty five prison deliveries effected via way of means of him

17
S. Prakash, "History of Indian Prison System", the Journal of Correctional Work, No. XXII, Lucknow, 1976,
p. 89
18
Amerndra Mohanty, Narayan Hazary, Indian Prison System, 1990, Ashish Publications House, New Delhi.
19
Basham, A.L: The Wonder That Was India, Fontana, Calcutta, 1975, pp.119.

21
withinside the course of twenty six years on the grounds that his appointment to the throne. 20
After the Mouryan dynasty, Jatakas given clean image on crime and punishment, on this
time, the launch of political prisoners on the time of conflict and hired of their military.
Emperor Ashoka built twenty five jails in his duration and implemented reformative
measures in prisons, due to the fact Ashok accompanied Buddhism. Later in jatakas duration
they used the prisoners as military in conflict instances. From Harshacharita it initiatives that
the circumstance of the prisoners become some distance from satisfactory. The lifestyles of
Hiuen-Tsang information, prisoners normally received harsh remedy. They have been now no
longer allowed to shave. They had bushy faces and disheveled beards. They have been,
however, activities whilst prisoners have been released. Kalidasa information whilst the
constellation on which a King become born in evil aspect, astrologers cautioned launch of all
of the prisoners. At the time of Royal Coronation all prisoners have been released. The
Bharat Samhita provides that launch of prisoners may want to also be ordered whilst the king
took the pusyasnana (as auspicious bath)21. The jail machine become now no longer regular,
the situations of the prisoners modified basing at the rulers mindset and the remedy of
political prisoner become one-of-a-kind whilst in comparison to the opposite prisoners. The
rulers used inhuman techniques on prisoners and the situations of prisons have been
inhumane in old days.

2.2.2 Medieval Period

The felony device of Medieval India resembled that of historical India. The modern Muslim
sovereigns seldom tried to tamper with the day to day management of justice. During Mughal
period reasserts of regulation and its character have been basically Quaranic. The crudeness
and insufficiency of the judicial structures have been irritated with the aid of using the reality
that best regulation identified with the aid of using the emperor and his choose become the
Quaranic regulation, which had originated and grown to adulthood outdoor India. Brahmanic
Courts and Gentoc Code a free mass of Sanskrit felony guidelines and sacred injunctions
survived Emperor Akbar. During Mughal duration reassets of regulation and its man or
woman basically remained Quranic. Crimes have been divided into three groups, specifically
offences towards God, offences towards the State, offences towards non-public persons. The
punishments for these offences have been hadd, tazir, quisas, and tashir. 22
20
V.R.Ramachandra Dikhistar, The Mauryan polity, Madras University Historical Series, No.21, 1953, pp. 173-
176.
21
Sukla Das, Crime and Punishment in Ancient India, Abhinav, New Delhi, 1977, p.74
22
Sarkar Jadunath; Mughal Administration in India, Calcutta, 1935, pp. 114-117.

22
There have been three major prisons in Mughal India. One become at Gwaliar, second at
Ranthambore and the third become at Rohtas. Criminals condemned to death punishment
have been generally despatched to the fort of Ranthambore. They met their death months
after their survival there. The Gwaliar Fort become reserved for the nobles that offend. To
Rohtas have been despatched the ones nobles who have been condemned to perpetual
imprisonment, from in which only a few go back home. Princes of Royal Blood have been
regularly despatched to this place23. The launch of prisoners become that, the orders for his or
her launch have been issued on unique activities. These activities have been delivery of
topped prince, healing of the Emperor or any of his sons from long illness, or a few
occasional Royal go to to a jail fortress. In Mughal duration, the prisons have been
overcrowded and inhuman remedy to the prisoners. The prisoners have been despatched to
exclusive prisons, the prisoners died inside months in their jail life. The offences have been
of various sorts and the punishments have been mutilation, branding, whipping and etc. and
the kings launched prisoners at the happiest activities of their life.
The prisoners have been taken to the jail; they have been generally loaded with iron fetters on
their toes and shackles on their necks24. Ancient and Medieval duration imprisonment become
taken into consideration to be a shape of punishment and the same capabilities of the jail
device prevailed in pre British duration. The situations of the prisons have been degrading;
solitary confinement become given to the prisoners and now no longer allowed to fulfill their
families. It become no uniformity in treating the prisoners and the situations in the prisons
become deplorable.
2.2.3 Pre- Independence Period – Under British Rule
Under the shed of British rule, human rights and democracy become suspect and socialism
become an anathema. The British colonial length stays the Indian analogous of the Dark
Ages. Lord Macaulay renounced the historic Indian prison political machine as dotages of
Brahminical superstition, and condemned historic prison historical past and its internal care
as an incredible equipment of cruel absurdities. The Britishers surpassed Laws like The
Regulating Act which become surpassed in 1773, installed the Supreme Court at Calcutta to
abjudicate all civil, wrongdoer, admiralty and ecclesiastical jurisdiction and indicated the aim
of the British Government to introduce English Rule of legal guidelines and English
superintendence of regulation and justice25. The British colonial rule in India marked the start

23
Satya Prakash Sagar, Crime and Punishment in Mughal India, sterling, Delhi, 1967,p. 47.
24
Amerndra Mohanty, Narayan Hazary, Indian Prison System, 1990, Ashish Publications House, New Delhi.
25
Vidya Bhushan, Prison Administration in Uttar Pradesh, 1953, P.12

23
of penal reforms withinside the country. The British jail authorities made annoying efforts to
enhance the situation of Indian prisons and prisoners. They brought absolute modifications in
the post current jail system retaining in view the emotions of the indigenous people26.
In 1835, Under East India Company Rule, 143 civil jails, 75 criminal jails and 68 combined
jails, with a complete lodging for 75, 100 were constructed in Bengal, North-Western
Provinces, Madras and Bombay27. Reforms in jail management got here to occupy public
attention; the British Parliament surpassed an enactment in 1824 in regard to the necessities
of jail management28. In 1836, the East India Company constituted committee for present day
administrative shape of prisons. Lord Macalay is the member of that committee. The
committee criticized that the corruption of jail team of workers and laxity of discipline. The
predominant advice of the committee become Central Jails have to be constructed to house
now no longer extra than a thousand prisoners each. Inspector General of Prisons have to be
appointed in all provinces. Sufficient homes have to be supplied in all jails to house prisoners
comfortably.
The First committee which has been setup on prisons situations in India constituted via way
of means of the East India Company. Basing on that committee advice, the primary
imperative jail become built in Agra in 1846. The tips of the primary Committee couldn't be
carried out, the East India Company rule led to 1858 and the guideline of thumb of British
Crown commenced in India. During this length, The Indian penal code, 1860 and code of
crook process got here into force. The Indian Prison System modified from barbaric to
present day however now no longer completely geared up to fulfill the prisoner’s needs. The
British rulers have been despatched as prisoners to the Andaman Islands. In 1858 to 1860 as
much as 2000 to 4000 prisoners have been despatched to Andaman Celluer Jail and a lot of
them died. A second committee become constituted in 1864 to remember the deaths in jail
and jail control. The committee got here to the belief and submitted a document that because
of overcrowding, terrible conservancy, terrible drainage, inadequate food, and inadequate
scientific facility. In 1877, the third prison committee become constituted totally officials; it
reviewed situations of prisons and general management.
In 1888, the Fourth Committee become appointed on an all India basis. This Committee
become expressly directed closer to the habitual running of the prisons. The document
included almost the complete area of inner control of jails and laid down intricate regulations

26
Prof. N.V.Paranjape, Criminology and Penology, Central Law Publications, 12th Edition, 2006, p. 359
27
Devakar, Prison and prison Reforms in British India, Social Defence, Vol. 2 January 1985
28
Orissa Jail Reform Committees Report (chairmen- Justice Harihar Mahapatra), 1981, p.1

24
for jail control. The Committee advocated the separation of under trial prisoners and the
category of prisoners into casuals and routine. Most of the suggestions of the Committee have
been included in the prison manuals of numerous provinces. In 1892, the fifh all India prison
committee become appointed and it reviewed total jail management in India and advocated
that the punishments of jail offences and separate under trails from the alternative prisoners
and category of prisoners like offenders and routine.
Britishers popular the committee document and surpassed The Prisons Act, 1894. The act
supplied category of prisoners and crucial thing to be taken into consideration is the sentence
of whipping become abolished. The organised centres made to be had to the prisoners in 1866
have been in addition stepped forward and higher services have been supplied to ladies
inmates to guard them in opposition to contagious disorder Despite the ones modifications,
the jail policy as pondered via the Act29. In 1897, the Reformatory School Act become
surpassed, that become the landmark withinside the records of jail reforms in India. The
courtroom docket directed to the jail authorities, to separate the adolescents offenders from
the alternative prisoners. The Prisoners Act become surpassed in the yr 1900, included
prisoner’s rights and obligations in prisons.
After the First World War, the innovative modifications got here in to Indian jail system. The
sixth Jail Committee become appointed in 1919 under the chairmanship of Sir Alexander G
Cadrew. The technique of evaluation of jail issues in India persisted the enactment of Prisons
Act, 1894. The first ever huge observe become released in this situation with the appointment
of All India Jail Committee (1919-1920). This unearths its location as landmark withinside
the records of jail reforms in India and is as it should be referred to as the corner stone of
present day jail reforms. The jail management, reformation and rehabilitation of offenders
have been recognized as one of the goals of jail administration. The care of prisoners have to
be entrusted to effectively educated team of workers drawing enough revenue to render
devoted service. The separations of executive/ custodial, ministerial and technical team of
workers are in jail service. It is ironical that the tips made via way of means of this
Committee couldn't be carried out due to disadvantageous political environment30.
The All India Jail Committee (1919-1920) performed a substantial function withinside the jail
reforms under British rule and that the committee was brought reformation and rehabilitation
techniques for the prisoners to discourage them after launch from prisons and additionally

29
Vidya Bhushan: Prison Administration in India, p.21
30
Draft National Policy on Prison Reform and Correctional Administration, Historical Review of Prison
Reforms in India.

25
counseled that to categorise the prisoners under numerous classes and offer minimal centers
to them. The classes are labeled into routine offenders, offenders, under trial, convicted and
women prisoners. The provincial governments of India appointed range of committees on jail
reforms after the All India Jail Committee (1919-1920).
2.2.4 Post-Independence Era
The first decennary after independence become marked via way of means of exhausting
efforts for upgrades in residing conditions in prisons. A severa of Jail Reforms Committees
had been set via way of means of the State Governments, to reap a positive measure of
humanization of jail situations and to place the remedy of offenders on a clinical footing.
Mentioning few are the East Punjab Jail Reforms Committee, 1948-49, the Madras Jail
Reforms Committee, 1950-51, The Jail Reforms Committee of Orissa, 1952-55, The Jail
Reforms Committee of Travancore and Cochin, 1953-55, The U.P.
Jail Industries Inquiry Committee, 1955-56. In Nijam’s nation of Hyderabad, having
imprisoned an envisioned 17,550 people who entered the territory, the Government of India
left all of the prisoners rounded up withinside the upheaval, and to alleviate the trouble of
overcrowded jails31. In Hyderabad, British rulers inherited a crook justice gadget that have
been paralysed via way of means of the conflict, and couldn't system any big range of
instances. As in British India, politics got here to decide become subjected to formal
punishment, and escaped.
Nehru authorities become extraordinary from the ones of the British: they had been now no
longer spending cash should in any other case be used for improvement projects, on costly
felony proceedings; and that they had been sensitive to the significance of political events in
a democratic. Many individuals of the public include of their insistence that, the authorities
punished individuals in communal violence; those handiest worsened family members among
the ones communities had been seemed to be at loggerheads with each other though heaps
had been firstly detained; only some exemplary people remained in prison via way of means
of 1953.
The constraints of governance in a democratic nation had an effect in three as an alternative
contradictory method at the selections which the authorities made about those prisoners. They
have been detained for numerous months with out trial, the International Committee for the
Red Cross become urgent Nehru to look that the ones detained had been both prosecuted or
released. Nehru had lengthy since found out that the eyes of the sector had been on

31
Indian Economic Social History Review 2007

26
Hyderabad, and wanted to prove that the brand new Indian authorities will be balanced in its
method to each Hindus and Muslims. It become the broadly regular among the brand new
rulers of the nation that the communist and ‘communalist’ events withinside the nation
remained famous due to the fact the nation Congress Party become weak. Chaudhuri,
therefore, was hoping that placing free prisoners would ‘rehabilitate the status of the
Hyderabad State Congress’ Party withinside the eyes of the general public in Hyderabad, and
enhance family members among the nation and countrywide sections of the party. There will
be no widespread liberty due to the fact the Military Governor nonetheless wanted to
prosecute distinguished Razakars inclusive of Kasim Razvi. The Govt. of India invited Dr.
W.C. Reckless, United Nations Technical Experts on Crime prevention and remedy of
offenders, to make guidelines on jail reforms in 1951. Later on, a committee become
appointed to put together an All Indian Jail Manual in 1957 on the idea of the pointers made
via way of means of Dr. W.C. Reckless.
An All-India Conference of Inspector General of Prisons of the Provinces become also
convened. Consequent of those efforts, the subsequent essential coverage guidelines
concerning reformation and rehabilitation of prisoners had been unanimously regular. The
correctional offerings need to shape an necessary a part of the Home Department of every
nation and a Central Bureau of Correctional Services need to be mounted on the Center. The
reformative strategies of probation and parole need to be used to reduce the weight on
prisons. State run after-care units need to be installation in every nation. Solitary confinement
as mode of punishment need to be abolished. Classifying the prisoners for the reason of their
remedy become necessary. The State jails manuals need to be revised periodically32.
On the guidelines of the Pakwasa committee a Model Prison was built at Lucknow in 1949.
In 1951, Dr.W.C. Reckless was appointed via way of means of the Govt. of India for the
guidelines of the jail reforms in India. He made numerous guidelines to narrate juveniles,
undertrial prisoners, convicted prisoners and their centres, counselled to enact statutes
referring to probation and after care schemes for the welfare of the prisoners. In 1961, The
Govt. of India evolved Central Bureau of Correctional Services and that become the primary
Central Agency to adopt research, schooling, schooling and documentation at the topics
referring to Social Defence.
The Government of India constituted Working Group on Prisons in 1972, which submitted its
document in 1973. The committee made some of guidelines and the State Governments had

32
Prof. N.V.Paranjape, Criminology and Penology, Central Law Publications, 12th Edition, 2006, p. 361

27
been requested via way of means of Central Government to put into effect such guidelines. It
advocated for the established order of a Research Unit at the headquarters of the Inspector
General of Prisons in every State. The placing up of a training institute in every State in
addition to of Regional Training Institute, diversification of the Institutions, lodging and
different connected topics, etc., shaped the contents of its document33.
In 1979, a Conference of Chief Secretaries made some of guidelines to lessen the
overcrowding in Jails. This protected the established order of an powerful system of normal
assessment of instances of under-trials, appointment of part-time or whole-time regulation
officials in jails to allow the under-trials to contest their instances in courts, putting in place
of recent Courts and modification of the regulation referring to the switch of prisoners.
The different guidelines made via way of means of this convention had been; introduction of
separate centres for the care, remedy and rehabilitation of women offenders, segregation of
juveniles, enhancing the system of inspection and supervision in jails in order to keep away
from indiscipline and malpractices, strengthening of schooling centres for prison staff,
paintings programme for all able bodied people, putting in place of State and countrywide
forums of traffic and revision of State Jail Manuals at the strains of the Model Prison
Manual34. This convention regular numerous rights to the prisoners, their safety measures and
improvement of jail situations.
The Govt. of India requested to the State Governments and Union Territory Administrations
for the safety of prisons and prisoners and which is taken into consideration as on critical
report for prisoners regulating and jail reforms, to revise their jail manuals at the traces of the
Model Prison Manual with the aid of using the quit of the year, to employ Review
Committees for the below trial prisoners on the district and state levels, to offer prison useful
resource to indigent prisoners and to employ entire time or element-time regulation officials
in prisons, to implement present provisions with respect to provide of bail and to liberalize
bail system after thinking about all its aspects, to strictly adhere to the provisions of the Code
of Criminal Procedure, 1973, with reference to the restrictions on time for research and
inquiry, to make certain that no toddler in battle with regulation be despatched to the jail for
need of specialised offerings below the Central Children Act, 1960, to have as a minimum
one Borstal School set up under the Borstal Schools Act, 1929 for younger offenders in every
State, to create separate centers for the care, remedy and rehabilitation of women offenders,

33
C.S.Malliah, Development of Prison Administration in India, Social Defence, Vol. XVII, No.67, Ministry of
Social Welfare, Government of India, Jan. 1982.p.40
34
Amerndra Mohanty, Narayan Hazary, Indian Prison System, Ashish Publications House, New Delhi, 1990.

28
to set up for the remedy of lunatics in specialised establishments, to offer unique camp
lodging below situations of minimal safety to political agitators coming to prisons, to put
together a time certain programme for development withinside the residing situations of
prisoners with precedence interest to sanitary centers, water supply, electrification and to
send it to the Ministry of Home Affairs for approval, to expand systematically the
programmes of education, schooling and paintings in prisons, to reinforce the equipment for
inspection, supervision and tracking of jail improvement programme and to make certain that
the financial provisions made for up gradation of jail management with the aid of using the
Seventh Finance Commission are well utilized, to prepare a systematic programme of prison
employees schooling on State and Regional level, to abolish the machine of convict officials
in a phased manner; to mobilize additional assets for modernization of prisons and
improvement of correctional offerings in prison; to installation a State Board of Visitors to go
to prisons at everyday periodicity and to file on situations triumphing in the prisons for
attention of the State Government; to observe and supply perspectives to Government of
India on concept for putting in place of the National Board of Visitors. 35
The Committee had, therefore, formulated the draft of a National Policy on Prisons and
advocated for its adoption with the aid of using the Government of India in session with the
State Government and Union Territory Administrations. The goals and objectives of prisons
in India, according to the proposed National Policy on Prisons, had been to guard society and
to reform and re assimilate offenders withinside the social milieu with the aid of using giving
them suitable correctional remedy. The Committee strongly advocated that the safety and
worrying of prisoners is the responsibility of the states and additionally to create a everyday
plan aiming at developing a rehabilitation tradition in the direction of prisoners. Among the
critical recommendations made by the Committee are Directive Principle of National Policy
on Prisons needed to be formulated and embodied in Part IV of the Indian Constitution.
The concern of Prisons and allied establishments had been to be protected withinside the
Concurrent List of Seventh Schedule of the Constitution. A Provision of an uniform
framework for correctional management by a consolidated, new and uniform complete law to
be enacted through the Parliament for the complete us of a become additionally advocated
Revision of Jail Manuals become to take delivery of pinnacle precedence and appropriate
amendments in IPC. The comply with up movement at the file were initiated with the aid of

35
Draft national policy on prison reform and correctional administration, Historical Review of Prison Reforms
in India.

29
using the Ministry of Home Affairs in consultation with involved ministries and department
of the Central and State Governments36.
The committee counselled that the countrywide prison coverage become vital for uniform
policies and guidelines to the prisoners though out India, to review present legal guidelines
and Manuals regarding the prisoners and change to the Indian Penal code.
In 1980, the Central Government of India appointed committee under the chairmanship of
Justice A.N. Mulla on All India Jail Reforms, his tips has first rate effect on jail reforms in
India as that committee tested all regions of the jail and prisoners, counselled to amend
legislation regarding prisoners, to enact separate statutes for the safety of prisoners, centers
for the girls prisoners, loose prison useful resource to the undertrial prisoners, to assemble
separate jails for girls and additionally for the improvements of jail situations like sanitation,
diet and hospital treatment in prisons.
A gross wide variety of 658 proposals made with the aid of using this committee on diverse
problems on jail control had been circulated to all States and UTs for its implementation, due
to the fact the duty of dealing with the prisons is that of the State Governments as ‘Prisons’ is
a ‘State’ concern under the List II State List of the Seventh Schedule of the Constitution of
India. The Committee has counseled that there's a direct need to have a countrywide coverage
on prisons The Prisons shall enterprise to reform and reassimilate offenders in the social
milieu with the aid of using giving them suitable correctional remedy. The federation of the
standards of control of prisons and remedy of offenders within the Directive Principles of the
State Policy embodied in element IV of the Constitution of India; Insertion of the subject of
prisons and associated establishments in the The federation of the standards of control of
prisons and remedy of offenders within the Directive Principles of the State Policy embodied
in element IV of the Constitution of India; Insertion of the subject of prisons and associated
establishments in the Concurrent List of the Seventh Schedule to the Constitution of India.
Enactment of uniform and complete law is embodying contemporary-day standards and
strategies concerning reformation and rehabilitation of offenders. There will be in every State
and Union Territory a Department of Prisons and Correctional Services managing person and
young offenders their institutional care, remedy, aftercare, probation and other
noninstitutional services.
The State shall endeavour to conform right mechanism to ensure that no undertrial prisoner is
unnecessarily detained and completed with the aid of using dashing up trials, simplification

36
M.B. Mahaworkar, Prison Management, Problems and solutions, Kalpaz Publications, Delhi, 2006.p.43.

30
of bail tactics and periodic assessment of instances of undertrial prisoners. Prisoners the ones
are below trial ought to, as a ways as viable, be restrained in separate establishments.
Imprisonment is not the best street to the punishments the Govt. shall endeavour to exercise
in regulation new options to imprisonment like network carrier, forfeiture of property, fee of
reimbursement to victims, public censure, specifically ensure that the Probation of Offenders
Act, 1958, is effectively carried out at some point of the country. Living situations in each
prison and allied group supposed for the custody, care, remedy and rehabilitation of offenders
will be well matched with human dignity in like accommodation, hygiene, sanitation, food,
clothing, and clinical centers37.
All elements accountable for vitiating the ecosystem of these establishments will be
recognized and addressed effectively. In conformity with the desires and goals of prisons, the
State ought to offer suitable centers and expert employees for the category of prisoners on a
systematic basis. Diversified establishments will be furnished for the segregation of various
classes of inmates for proper remedy. The State shall endeavour to expand the sector of
criminology and penology and sell studies at the typology of crime inside the context of
emerging styles of crime inside the country, Proper category of offenders and in devising
suitable remedy for them.
A device of graded custody starting from unique protection establishments to open
establishments will be furnished to deliver right possibilities for the reformation of offenders
steady with the progress. Programmes for the remedy of offenders will be individualized and
shall purpose at imparting them with possibilities for assorted training, improvement of
labour behaviour and abilities, change in attitude, change of behaviour and implantation of
social and moral values. The State shall endeavour to expand vocational training and
paintings programmes in prisons for all inmates eligible to participate. The purpose of such
education and paintings programmes will be to equip inmates with higher capabilities and
paintings behaviour for their rehabilitation. Payment of truthful wages and different
incentives will be associated with paintings programmes to inspire inmate participation in
such programmes. The incentives of leave, remission and untimely launch to convicts shall
also be applied for development in their behaviour, strengthening, of own circle of relatives
ties and their early go back to society. Custody being the important characteristic of prisons,
suitable protection preparations will be made according with the need for graded custody in
numerous kinds of establishments. The control of prisons will be characterised with the aid of
37
Bansal .V.K. Right to Life and Personal Liberty in India, Deep and Deep Publications, New Delhi, edition I
(1987)

31
using corporation and tremendous discipline, with due regard, however, to the preservation of
human rights of prisoners. The State recognizes that a prisoner loses his proper to liberty
however keeps his residuary rights. It will be the endeavour of the State to defend those
residuary rights of the prisoners. The State shall offer loose criminal resource to any or all
needy prisoners. Prisons are not the locations for confinement juvenile. Children the ones are
below 18 years of age shall in no case be despatched to prisons.
All youngsters restrained in prisons will be transferred forthwith to suitable establishments,
supposed solely juvenile with centers for their care, training, education and rehabilitation.
Advantage of non-institutional centers shall, on every occasion viable, be extended to such
youngsters Offenders who're younger (among 18 to 21 years) shall now no longer be
restrained in prisons supposed for person offenders. There will be separate establishments for
them where, in sight in their younger and impressionable age, they shall tend remedy and
education applicable to their unique desires of rehabilitation 38. Women offenders ought to, as
plenty as viable, be restrained in separate establishments specifically supposed for them.
Wherever such preparations are not viable they will be stored in separate annexes of prisons
with right preparations. The operating group of workers for those establishments and annexes
will be made from women personnel only. Women prisoners will be covered towards all
exploitation. Work and remedy programmes will be organized for them in consonance with
their unique desires. Unsound prisoners shall now no longer be restrained in prisons.
Proper preparations will be made for the care and remedy of unsound prisoners. Persons
dating arrest at some stage in non-violent socio, political, economic agitations are declared as
public purpose who shall now no longer be restrained in prisons along different prisoners. For
such nonviolent agitators a separate jail camp with right and ok centers will be furnished 39.
The folks sentenced to lifestyles imprisonment must go through at the least 14 years of real
imprisonment. Prolonged incarceration has a degenerating impact on such folks and is now
no longer vital both from the factor of view of individual’s reformation or from that of the
safety of society. The time period of sentence for lifestyles in such instances will be made
bendy in phrases of real confinement in order that this sort of person won't have always to
spend 14 years in jail and can be released whilst his incarceration is not vital.
Prison offerings will be advanced as a expert profession carrier. The State shall endeavour to
expand a well-prepared jail cadre primarily based totally on suitable task necessities, sound
education and right promotional avenues. The green functioning of prisons relies upon
38
N.Ravi, Human rights scenario in India -an overview, Lap Lambert Academic publishing,2013
39
Prof.N.V. Paranjape, Criminology and Penology, Central Law Publications, Allahabad, 12th Edition, 2006.

32
certainly upon the private qualities, educational qualifications, expert competence and
individual of jail employees. Emoluments and different service situations of jail employees
ought to be commensurate with their task necessities and responsibilities. An All-India
Service specifically the Indian Prisons and Correctional Service will be constituted to induct
higher certified and proficient individuals at better echelons. Proper training for prison
personnel shall be developed at the national, regional and state levels.
The State shall endeavour to stable and inspire voluntary participation of the network in jail
programmes and in non-institutional remedy of offenders on an in depth and systematic basis.
Such participation is essential in view of the goal of last rehabilitation of the offenders
withinside the network. The authorities shall open avenues for such participation and shall
increase monetary and different help to voluntary businesses and people inclined to increase
assist to prisoners and ex-prisoners. Prisons are hitherto a closed world. It is essential to open
them to a few type of positive and positive public discernment. Selected eminent public-guys
will be authorized to go to prisons and supply unbiased record on them to appropriate
authorities. In order to offer a discussion board withinside the network for continuous
wondering on troubles of prisons, for selling expert information and for producing public
hobby withinside the reformation of offender, it's far essential that a expert non-reliable
registered frame is set up on the country wide degree. It might also additionally have its
branches withinside the States and Union Territories.
The Government of India, the State Governments and the Union Territory Administrations
shall inspire putting in of this type of frame and its branches, and shall offer essential
monetary and different help for his or her right functioning. Probation, aftercare,
rehabilitation and comply with up of offenders shall shape an quintessential a part of the
capabilities of the Department of Prisons and Correctional Services.
The improvement of prisons will be deliberate in a scientific manner maintaining in view the
goals and dreams to be achieved. The development of the implementation of such plans will
be constantly monitored and periodically evaluated. The governments on the Centre and in
the States / Union Territories shall endeavour to offer good enough sources for the
improvement of prisons and different allied services. Government acknowledges that the
system of reformation and rehabilitation of offenders is an quintessential a part of the full
system of social reconstruction, and, therefore, the improvement of prisons shall discover an
area withinside the country wide development plans40.
40
Dr.Gurubax Singh, Law Relating to Protection of Human Rights and Human Values, Vinod Publications
(P).Ltd, 2008.

33
In view of the significance of uniform development of prisons in the country the Government
of India has to play an powerful position on this discipline. For this motive the Central
Government shall installation a excessive reputation National Commission on Prisons on a
everlasting basis. This will be a specialised frame to suggest the Government of India, the
State Governments and the Union Territory Administrations on all topics regarding prisons
and allied services. Adequate budget will be located on the disposal of this Commission for
enabling it to play an powerful position withinside the development of prisons and different
welfare programmes.
The Commission shall put together an annual country wide record at the management of
prisons and allied services, which will be located earlier than the Parliament for discussion.
As prisons shape a part of the criminal justice system and the functioning of different
branches of the system, the police, the prosecution and the judiciary have a bearing at the
operating of prisons, it's far essential to impact right coordination amongst those branches.
The authorities shall ensure such coordination at diverse tiers. The State shall promote studies
withinside the correctional discipline to make jail programmes much more powerful41.
The draft of the proposed National Policy on Prisons, quoted above, could require a few
adjustments in view of the trends which have taken area withinside the intervening period.
For instance, the existing committee is of the opinion that the enactment of a uniform and
complete regulation on prisons could be viable in the present provisions of the Constitution of
India, as India is a celebration to the International Covenant on Civil and Political Rights,
1966. Thereafter, Government of India has constituted every other committee on 26th May,
1986, namely, National Expert Committee on Women Prisoners below the chairmanship of
Justice V.R. Krishna Iyer who has submitted its record on 18th May, 1987. This record has
additionally been circulated to all States for taking essential comply with-up action.
Provision of a country wide coverage are regarding the girls prisoners in India and for
formation of latest guidelines and rules regarding their punishment and behaviour for
Maintenance of proper coordination among the police, regulation and jail for supplying
justice to female prisoners. Provisions are legal-useful resource for women. An advice
become made for Construction of separate prisons for women prisoners. Proper care of the
child born in prison to a female prisoner and provision of nutritious eating regimen is for the
mom and the child.

41
Justice A.N.Mulla Committee on All India Jail Reforms Report, (1980-1983).

34
The Government of India has proven critical challenge over the developing threats to the
safety and area in prisons posing a mission as a way to make prisons a secure area.
Consequently, the Ministry of Home Affairs, Government of India has constituted an All-
India Group on Prison Administration-Security and area on twenty eighth July, 1986 below
the chairmanship of Shri R.K. Kapoor who submitted their record on twenty ninth July, 1987.
In pursuance to the tips made through the All-India Committee on Jails Reforms, the
Government of India recognized Bureau of Police Research & Development (BPR&D) as a
nodal company on the country wide degree in the discipline of Correctional Administration
on November 16,1995 with precise constitution of duties. Analysis of Prison facts and
troubles are of standard nature affecting Prison Administration.
Assimilation and dissemination of applicable facts is to the States in the discipline of
Correctional Administration. Coordination of Research Studies performed through Regional
Institutes of Correctional Administration (RICAs) and different Academic/Research Institutes
in Correctional Administration and to border pointers for undertaking studies surveys in
session with State Governments. To evaluate Training Programmes maintaining in view the
converting social conditions, advent of new clinical strategies and different associated
components in the discipline of correction management. To put together uniform Training
Modules, together with courses, syllabi, curriculum are supplying schooling at diverse tiers to
the Prison Staff in the discipline of Correctional Administration. Publication of reports,
newsletters, announcements and practise of Audio Visual aids etc. in the discipline of
Correctional Administration. To installation an Advisory Committee is to guide the paintings
relating to Correctional Administration.

2.3 Evolution Of Prisoners‘ Rights In India

In India additionally the popularity of a prisoner and the rights granted to him are nearly
similar to that of England and USA. His actions are limited and some disabilities are imposed
upon the prisoner. Various regulations are imposed upon the workout of the essential rights
also. Conviction of positive offences also bring about the lack of civil rights 42. But in contrast
to in England a convict is not able to sue for torts in India. No everlasting vote casting
disqualification exists in India. It is best during imprisonment43.
42
Section l(d) of the Citizenship Act 1955 prescribes that a citizen by naturalisation or registration loses his
citizenship if one has, within five years of its acquisition, been sentenced :h1 any’ country to imprisonment for a
term not less than two years.
43
. Sinha. OP. CIT, p.1116.

35
History of prisoners and jail management is going returned even previous to the enactment of
the Prison Act and Prison Manuals. Concern for the betterment of conditions of prisoners had
been tried in India from earlier instances in numerous law. Legislations that deals with the
prisoners in India are Prisons Act 1894, Prisoners‘ Act 1900, Transfer of Prisons Act 1950
and Prisoners (Attendance in Courts) Act 1955.
Apart from the particular law, Articles 14, 19 and 21 of the Constitution of India are
additionally "very lots relevant with regard to prisoner's rights. In Kerala, the Travancore—
Cochin Prisons Act 1950 extends to the place of the complete of the erstwhile State of
Travancore—Cochin. Central Act 9 of 1894 applies to the Malabar District of the erstwhile
State of Madras.
Prisons Act 1894 and Prisoners Act 1900 ‘were enacted at a time whilst jail turned into
supposed to be a torture residence with a dehumanising environment. Prison reform turned
into now no longer seen at the horizon at that point. More critical at that point turned into
subject and control, now no longer rehabilitation and socialisation. What demanded special
interest turned into the difficulty of offences interior prisons and their punishment.
Correctional remedy, with the brand new orientation of making offenders non-offenders
turned into irrelevant. Irons on prisoners, safety in prisons, award of punishment etc. claimed
legislative priority. Naturally, the absence of the Indian Constitution gave the imperative
legislature absolute electricity of disposal of prisoners. It may be seen that the British
authorities gave scant regard to the human rights ideas to prisoners. This turned into in song
with their philosophy of jail management as a device for oppression in their opponents. But
whilst the everlasting regulation which created rights got here to control lesser law the court,
proper to its oath to uphold charter, needed to reinterpret the provisions of Prisons Act in
order to obliterate the absolutism of British. Indian. Prison. Administration and to develop the
meaning in this kind of way that the paramountcy constitutional provisions became study into
the textual content of the Prisons Act.44
It changed into this system which produced innovative modifications in the place of prisoner
rights via numerous case laws. Women and children in ‘defensive custody‘, mentally unwell
people not able to locate an area in intellectual hospitals, undertrials who had spent years in
jail with out trial having started out in opposition to them those and plenty of greater
exclusive features have claimed the eye of the Indian Supreme Court.

44
. V.R.Krishna Iyer, A national Prison Policy; : Constitutional Perspective and Pragmatic Parameters (1981),
pg. 36

36
In the Indian Constitution the human rights ideas are given a distinguished vicinity. Later
developments in prisoners rights in reality replicate the constitutional goals and ideals. The
Supreme Court has treated prisoner rights in a complicated way in Sunil Batra(I) v. Delhi
Administration upon a writ petition below Article 32 of the Constitution. Here it turned into
laid down that a court sentence does now no longer deprive the prisoner of his essential
rights. The Constitution Bench in Sunil Batra case laid down critical ideas concerning the
popularity of prisoners. The charter bench pushed aside the "arms off" jail doctrine, upheld
the essential rights of prisoners, though circumscribed severally with the aid of using the truth
of lawful custody. The essential rights did now no longer forsake prisoners, and that the
penological cause of sentence was reformatory' despite the fact that deterrent too 45. Further it
was defined that the courts has a persevering with responsibility to make sure that the
constitutional cause of the deprivation isn't defeated with the aid of using the jail
administration46.
At present the court want now no longer undertake a "arms off" mindset in regard to the
trouble of jail management in India The inadequacy of jail management and unwell remedy
of prisoners has invited grievance now no longer best from teachers however from
professional our bodies as well. An assessment of the present research and reviews referring
to prisoner rights suggests that there may be preponderance of publications; however they
relate to positive precise elements like jail management, jail atrocities etc.
2.4 Committee Reports :
In India the primary committee at the concern of prisons reforms was appointed in 1836 with
Lord Macaulay as the member. Though this committee encouraged increased rigour of
remedy of prisoners and rejected all reforming influences, although its advocacy of right
buildings, fitness care and intramural employment laid the foundation of destiny progress.

The subsequent committee to cope with the concern was appointed in 1864. There was a
convention of experts in 1877 to investigate into jail management. In 1888-89 any other
committee was appointed to have a look at prison management and on the idea of its record,
the Prisons Act 1894 and the Prisoners Act 1900 and different statutes coping with prisons
had been surpassed The maximum complete have a look at of the jail management in all its
elements was completed with the aid of using the Indian Jails Committee in 1919-20 which

45
Sunil Batra (I) ii. Delhi Administration, A.I.R. 1978 S.C. 1675.
46
Ibid .

37
tested the situations of prisons now no longer most effective in India however additionally in
England, Scotland, U.S.A., Japan, Philippines and Hong Kong47.

In the meantime, the Government of India sought help of the United Nations for the
deputation of a professional to have a look at the jail management in India. Accordingly,
Dr.W.C. Reckless visited India in 1951 and made numerous treasured guidelines together
with revising forums for the choice of prisoners for untimely launch and the creation of
criminal replacement for brief sentences.

In 1956 the Government of India installation the All-India Jail Manual Committee which
organized the Model Prison Rules in 1959 specifically for the guidance of the State
Governments. But besides the state of Maharashtra, no different state has absolutely revised
the prison manuals on the idea of the stated Model Rules48.

The Ismail Committee wherein submitted its record in 1977 in particular handled allegations
of ill-treatment and beating49. Along with that it has made a few guidelines for jail reforms,
rights of the prisoners and different ancillary matters that is The Committee has endorsed
that clinical type of prisoners and diversification of establishments are critical for remedy
programmes in prisons50.

Dealing with put off and indifference to jail reforms, Justice Ismail stated that so lengthy as
prisoners have now no longer been solid out of society and they stay individuals of the
society, though segregated temporarily, however are anticipated to re-join the mainstream of
the society after their launch, it's miles the responsibility of the State to spend for his or her
rehabilitation ,reformation and re-access into the mainstream of the society51.

The Government of India, worried on the large range of undertrial prisoners in Indian jails,
has brought to the attention of the Law Commission the want for venture appropriate judicial
reforms and adjustments in the law, on the way to cope with the trouble posed thereby. The

47
The Committee recommended that the reformation and rehabilitation of offenders should be the main
objective should be entrusted to officers who have received adequate training. They suggested that short term
imprisonment should be replaced by probation, fine or warning or other substitutes such as work in lieu of
imprisonment.
48
See Report of the Tamil Nadu Prison Reforms Commission Pg. 7
49
On 12th May 1977, the Tamil Nadu Government constituted a Commission of Inquiry consisting of
Honourable Justice M.M.Ismail to enquire into and report about the alleged ill—treatment and beating of
political prisoners in Madras Central Prison. The learned judge submitted his report in September 1977. See
Report of the Commission of Inquiry appointed to Inquire into the incidents of Beating and Ill-treatment alleged
to have taken place in the Central Prison, Madras during February 1976 to February 1977.
50
Justice M.M.Ismail Commission Report (1977), p.193.
51
Id page 194.

38
Commission has endorsed rapid research of the case. It highlighted the want to liberalise
provisions for launch on bond. It additionally counselled separate places of detention for
undertrial prisoners52.

The Tamil Nadu Prison Reforms Commissions53 has counselled that every one folks
disadvantaged in their liberty shall nonetheless be entitled to be dealt with with humanity and
with admire for the inherent dignity and rights of human person. Accused folks shall, shop in
great circumstances, be segregated from convicted folks and will be concern to separate
remedy suitable to their status as un-convicted folks. Short term prisoners ought to
additionally receive beneficial work, in order that they'll now no longer stay idle and given
wages. The Committee made a few innovative guidelines in regards to women prisoners. The
co-operation of public spirited, committed social employees and voluntary firms ought to be
enlisted for rehabilitation of lady prisoners launched from prisons54.

Justice A.N.Mulla Committee of Jail Reforms has counselled putting in of National Prison
Commission as a persevering with frame to supervise modernisation of jail in India 55. It has
counselled that the present diarchy of jail management at Union and State stage ought to be
removed56. The Committee specifically endorsed a complete ban at the heinous exercise of
clubbing collectively juvenile offenders with the hardened criminals in prisons57. According
to its concept the type of prisoners relevant place in the jail 58. Socio-criminal and emotional
assist to girls inmates ought to be extended through a socio-criminal counselling cell and with
the aid of using approach of criminal useful resource camps held in jail59.

More currently the Estimate Committee of the 9th Kerala Legislature made a few treasured
guidelines with regard to the rights of prisoners in the State of Kerala. According to the
committee contemplating the new reformative goal of imprisonment sufficient possibilities
should be provided for interview of the prisoners. Prison labour may be made greater
worthwhile and beneficial if provisions are made for dispensing work in keeping with the
capacity and taste of the prisoner. The Committee made an crucial advice to the authorities
suggesting enhancement of punishment for those prisoners who violates situations of parole.
52
Law Commission of India, 78th Report (1979), p.16
53
Id page 21.
54
Id page 25.
55
Justice Mulla Committee was appointed by the Union Ministry and the Committee submitted its Report on Jail
Reforms to Home Ministry on 3lst March 1983.
56
Justice Mulla Committee Report.
57
Ibid.
58
Ibid.
59

39
The observation suggests that Judiciary turned into lots cognisant of prisoners rights in all
countries. Contribution of law turned into now no longer substantial. It may be visible that
the judiciary turned into inspired with the aid of using the deliberations and suggestions made
in the global human rights conventions. Apart from the global conventions the advice made
with the aid of using numerous Prison Reforms Committees in India additionally inspired
Indian Judiciary mainly the apex court. This is apparent from the judgement brought with the
aid of using the Supreme Court in terms of prisons rights. The judiciary made many inroads
in to this area of prisoner rights through a price orientated interpretation of the provisions
contained in the Indian Constitution.

CHAPTER III

PRISONER RIGHTS: CONSTITUTIONAL PERSPECTIVE

3.1 Introduction

The law on the rights of prisoners has been an evolving one. It is a matter of utmost shame
that a country like India doesn’t have codified law on the rights of prisoners. There is also no
comprehensive legislation to deal with prisoners rights and regulate their conduct while in
jail. However, the judiciary of the country has given due recognition to the convicts and held
their fundamental rights time and time again. In the absence of thorough legislation, it has
managed to set precedents and principles upholding the various rights of prisoners that not
only guide but also bind all the courts in India.

3.2 Historical background

As mentioned earlier, the rights of the prisoners have been a developing one. From the case
of Platek v. Aderhold (USA) 60 where the courts ruled that it has no power to interfere with the

60
73 F.2d 173 (1934).

40
conduct of prison or its rules and regulations to the case of Johnson v. Avery 61wherein the
court recognised certain rights of the prisoners, the change has been a progressive one. In the
Indian sphere, the judiciary of the country has invoked Fundamental Rights of the
Constitution repeatedly to the rescue of the prisoners. In the famous case of Charles Sobraj
through Marie Andre’s v. The Superintendent, Tihar Jail62, the Supreme Court Judge Justice
Krishna Aiyer held that:

“..imprisonment does not spell farewell to fundamental rights although, by a realistic re-
appraisal, Courts will refuse to recognise the full panoply of Part III enjoyed by a free
citizen”. 

He further stated that the imprisonment of a prisoner is not merely retribution or deterrence
but also rehabilitation.

3.3 Rights Of Prisoners

As emphasised earlier, the conviction of a human does now no longer render him non-human.
He nonetheless stays a human who ought to be handled like one. He ought to receive the
fundamental human rights to be had to each guy strolling at the earth. But on the identical
time, he ought to now no longer be handled as a free man with all absolute rights and
luxuries. His freedom ought to be problem to positive obstacles and felony restrictions. These
restrictions, in addition, ought to be reasonable.

The apex court of america in the case of Charles Wolff v. McDonnell63 and the Supreme
Court of India in its well-known instances like DBM Patnaik v. State of Andhra Pradesh
64
and, Sunil Batra v. Delhi Administration 65 has emphatically said that it should be realised
that a prisoner is a man or women in addition to a herbal individual or a felony individual. If
someone receives convicted for a criminal offense, it does now no longer lessen him to the
reputation of a non-individual whose rights may be snatched away on the whims of the prison
administration. Therefore, implementing any main punishment withinside the device of jail is
conditional upon the absence of procedural safeguards.

61
393 U.S. 483 (1969),
62
AIR 1975 SC 164, 1975 CriLJ 182, (1975) 1 SCC 192, 1975 (7) UJ 50 SC.
63
418 U.S. 539 (1974)
64
1974 AIR 2092, 1975 SCR (2) 24.
65
1980 AIR 1579, 1980 SCR (2) 557

41
The Supreme court of India has been taking into consideration with the significant and
country governments on the grounds that a long term to enhance the deteriorating situation of
the prisoners that's essential due to the overcrowding of prisons, loss of education facilities,
employees and bad infrastructure, etc. Therefore, it's far obligatory to invoke the rights and
constitutional safeguards of the prisoners. Such rights of, until they're propagated and carried
out in every nook and the whole perimeter of the prism, are a nullity and betrayal of human
religion at the crook justice shipping device.

3.3.1 Fundamental Rights

Fundamental rights shape the middle of human rights in India. They are the fundamental
rights of the residents which can't be taken away UNDER any instances. The regulation of
the country additionally ensures a number of those rights to the prisoners too like Article 14,
19, 21. However, it can't impose the essential rights in its complete panoply to the gain of the
prisoners. Giving prisoners Right to Fair technique paperwork the soul of Article 21. Levying
reasonableness in any limit is the essence of Article 19(5) 66
and sweeping discretion
degenerating into arbitrary discrimination is anathema for Article 14. All of those statements
are supported through numerous judgments of the decrease courts and the better court. Some
of them are indexed below.

Case Laws

 In the case of the State of Andhra Pradesh v. Challa Ramkrishna Reddy 67, the court
held that a prisoner is entitled to all of the essential rights until curtailed through the
charter.
 In State of Maharashtra v. Prabhakar Pandurang Sanzgir68, the Supreme Court said
that the mere truth that a person is detained can't deprive certainly considered one
among his essential rights and that such situations aren't to be prolonged to the
volume of the deprivation of essential rights of the detained individual. The Court in
addition dominated that each prisoner keeps all such rights which can be loved

66
Article 19(5) in The Constitution Of India 1949

(5) Nothing in sub clauses (d) and (e) of the said clause shall affect the operation of any existing law in so far as
it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of
the rights conferred by the said sub clauses either in the interests of the general public or for the protection of the
interests of any Scheduled Tribe

67
State Of Andhra Pradesh vs Challa Ramkrishna Reddy & Ors on 26 April, 2000.
68
1986 (1) BomCR 272.

42
 through free residents besides the one that is misplaced always as an incident of
confinement.
 In Charles Sobaraj v. Supdt Central Jail Tihar 69, it turned into dominated that every
one the rights to be had to prisoners beneathneath Articles such as 14, 19 and 21 are
though restricted however can't be stated to be static. They are certain to or as a
substitute will upward thrust to new human heights whilst hard instances arise.
 In Francis Corahe Mullin v. The Administrator 70, UT Delhi Justice Bhagwati found
the regulations laid down through Justice Douglas and Justice Marshall

Mr Justice Dougals reiterated his thesis whilst he asserted: “Every prisoner’s liberty is, of
course, circumscribed through the very truth of his confinement, however his hobby in the
restricted liberty left to him most effective the greater substantial. Conviction of a criminal
offense does now no longer render one a non-individual whose rights are problem to the
whim of the jail administration, and therefore, the imposition of any extreme punishment
within the jail device calls for procedural safeguards.” Mr Justice Marshall additionally
expressed himself truely and explicitly in the identical terms: “I even have previously said my
perspectives that a prisoner does now no longer shed his fundamental constitutional rights on
the jail gate and I completely help the court’s protecting that the hobby of inmate.”

3.3.2 Right to Privacy

The Right to Privacy is one of the very vast rights to be had to the residents of India. They
shape an intrinsic a part of Right to Life and Personal Liberty under Article 21 of the Indian
Constitution. They have additionally been made relevant to the prisoners and convicts thru
numerous decisions handed through courts over the years. In India, however, this proper is
possibly the maximum violated. The proper to privacy in admire to go looking and seizure
turned into first raised in the 1950s, in which the apex courtroom docket dominated that seek
and seizure can't be visible as violative of Article 19 (1)(f)71 of the Indian charter and a
trifling seek through itself does now no longer nullify or damage an individual’s proper to
property. Even if seek or seizure affected such proper then its impact is brief and is to be
construed as an inexpensive limit at the rights of individuals.

3.3.3 Right To Privacy In Current Times

69
1978 AIR 1514, 1979 SCR (1) 512.
70
1981 AIR 746, 1981 SCR (2) 516.
71
Protection of certain rights regarding freedom of speech etc, (1) All citizens shall have the right (f) omitted.

43
The idea of proper to privacy has advanced over the years. In latest time, its scope has been
widened to gain humans withinside the maximum feasible way. A difference among bodily
privacy and intellectual privacy is likewise being drawn.

In the case of Rohit Shekha v. N.D Tiwari72, the courtroom docket held that no one need to be
forced to be subjected to any strategies in query at any circumstances, even if it's miles
withinside the context of an research in a criminal case. Proceeding with such acts could
bring about an unwarranted intrusion into an person’s private liberty. It is similarly essential
that good enough area is supplied for the voluntary management of the impugned strategies
withinside the context of criminal justice on situations that positive safeguards are in place.
The courtroom docket additionally did a quick exam of the jurisprudence that lets in
obligatory trying out or involuntary drawing of samples and said that judicial precedents in
such instances emerge in criminal prosecution associated with critical offences like the ones
related to narcotic substances, manslaughter, homicide or sexual offences. In all of those
instances, the courtroom docket has cautiously weighed the hobby of justice withinside the
context of public coverage and privateness of an person whilst inspecting the permissibility
of obligatory trying out.

3.3.4 Right To Privacy Of Prisoners And Their Spouses

In Rahmath Nisha v. Additional Director General of Prisoner and Others 73, the accused
changed into given 10 days depart to go to his spouse. But, because of critical illness, his
spouse changed into transferred to the medical institution in ICU by the point he reached
domestic. However, the police escort that followed the accused refused to permit him go to
the health facility bringing up that permission has been granted to go to domestic handiest.
The Madras Court held that the prisoner need to be allowed to go to his spouse in medical
institution and that the assembly among him and his spouse need to now no longer be
monitored.

The court said that after a prisoner is united together along with his spouse, he would
possibly want to preserve her the palms of his accomplice. It’s herbal that his feelings could
find bodily expression. Therefore, the proper to privacy and dignity of the prisoners need to
be scrupulously safeguarded. It is likewise essential that the communication among the
prisoner and his accomplice or partner need to pass unmonitored.
72
Rohit Shekhar vs Narayan Dutt Tiwari & Anr on 27 April, 2012.

73
WP(MD)No. 12488 of 2019

44
3.3.5 Right In Opposition To Solitary Confinement And Bar Fetters

Solitary confinement is a form of imprisonment wherein the convict or prisoner is saved in a

extraordinary cell with very little touch from different inmates. In addition to that strict
tracking is executed at the behaviour and behaviour of the person. The concept in the back of
solitary confinement is to train infamous convicts subject and offer protection to different
inmates from them.

The validity of solitary confinement changed into taken into consideration through the
Supreme Court in the well-known case of Sunil Batra v. Delhi Administration 74
in which the
honourable courtroom docket highlighted that imposition of solitary confinement is handiest
to be made in top notch instances in which the prisoner is of such violent or risky nature that
his segregation will become an utmost necessity. The court additionally found that retaining
prisoners in bar fetters day and night time reduces them to the extent of an animal and
deteriorates their intellectual health. The courts, therefore, have supplied sturdy resentment in
opposition to solitary and said its confinement as pretty dehumanizing and derogatory in
nature. They have additionally held such confinements to be in opposition to the spirit of the
Constitution of India.

3.3.6 Right To Life And Private Liberty

The Hon’ble Supreme Court has again and again carried out the guideline of thumb of Article
21 in numerous instances and asserted its importance in numerous different. It has elevated
the connotation of the word “existence” given through Field J. in the much-acknowledged
case of Kharak Singh v. State of UP 75. In the stated case, the courtroom docket dominated
that the term “existence” connotes extra than mere life like that of an animal. The inhibition
in opposition to its deprivation extends to all the ones limbs and schools through which
existence is enjoyed. The provision similarly prohibits the mutilation of the frame through the
amputation of an arm or leg, or the setting out of an eye fixed or the destruction of another
organ of the frame via which the soul communicates with the opposite world. It may be stated
that proper to stay isn't always restrained to a trifling animal life. It connotes some thing extra
than simply the bodily survival of a being.

3.3.7 Right To Stay With Human Dignity.

74
1980 AIR 1579, 1980 SCR (2) 557.
75
1963 AIR 1295, 1964 SCR (1) 332.

45
The right of a individual to stay with dignity is blanketed through the charter. This proper is
likewise given to the prisoners as their mere conviction does now no longer render them
inhuman. This proper bureaucracy a widespread a part of proper to existence assured under
the charter of India. The concept in the back of is that each person’s existence is treasured
and no matter the circumstances, he need to receive a feel of dignity to assist him hold living.
The courts have enlarged the scope of Article 21 to encompass this proper. Its prevalence will
be stated in lots of instances. Some of them are enumerated below:

Case Laws

In the case of Maneka Gandhi v. Union of India76, the apex courtroom docket propounded a
brand new size of Article 21 in which it said that “proper to existence or stay” does now no
longer confine itself to mere bodily lifestyles however additionally consists of proper to stay
with human dignity.

Further, in Francis Coralie v. Delhi Administration 77, whilst increasing the aforementioned
idea, the court held that the word ‘existence’ consists of the whole thing that it is going in
conjunction with it, specifically the naked necessaries of the existence along with ok vitamins
and food, apparel and refuge over one’s head, centers for reading, writing (education),
capacity and possibility of expressing oneself in various forms, transferring freely, blending
and commingling with fellow human beings.

Thereafter, the apex court in Pandit Parmanand v. Union of India 78

extended the idea of
“existence” and dominated that the word “existence” isn't simply confined as much as the
length of demise however even after that. Therefore, whilst someone became performed with
the demise penalty (as on this case) however the lifeless frame became now no longer
diminished even after half an hour, no matter the reality that the medical doctor already gave
the demise certificate, the court held that it amounted to a violation of Right to existence
under Article 21. It may be concluded that Right to stay maintains even after demise and
consists of in its ambit the proper to right coping with of the useless frame or proper to a
respectable burial.

The Supreme Court in State of Andhra Pradesh v. Challa Ramakrishna Reddy 79held that the
proper to existence is one of the primary human rights that's assured to all of us with the aid
76
1978 AIR 597, 1978 SCR (2) 621.
77
1981 AIR 746, 1981 SCR (2) 516.
78
1989 AIR 2039, 1989 SCR (3) 997.
79
State Of Andhra Pradesh vs Challa Ramkrishna Reddy.

46
of using Article 21. It is so essential that even the State has no authority to violate it. A
prisoner does now no longer quit to be a person even if lodged in prison. He is still a human
and consequently is entitled to revel in all of the essential rights which includes the proper to
existence.

3.3.8 Right To Health And Medical Remedy

Right to fitness is an critical proper. The Constitution of India includes provisions ensuring
each man or woman the proper to the best manageable widespread of bodily and intellectual
fitness. In a sequence of judgements, the best court of the land has held that the proper to
fitness care is a essential detail of Article 21. Article 21 of the Constitution imposes an
responsibility at the State to protect an man or woman’s existence.

In the case of Parmannd Katara v. Union of India80, the courtroom docket held that a medical
doctor operating at a Government clinic is certain with the aid of using responsibility to
increase any sort of clinical help for keeping existence. In reality, each medical doctor has a
expert responsibility of extending his offerings to the patients (be it anyone) with due
diligence and know-how so that it will shield his existence. Therefore, any criminal frame
can't interfere to purpose a postpone withinside the discharge of duties and obligations forged
upon the individuals of the clinical profession. The courtroom docket additionally reiterated
in Paschim Bengal Khet Mazdoor Samiti v. State of West Bengal 81, that a central authority
clinic can't deny any affected person the proper to remedy at the grounds of non-availability
of beds. Doing so could quantity to a breach of Article 21 that highlights the ‘proper to
existence’. This article imposes strict duties at the State to make to be had the important
clinical help to an aggrieved individual as safety of human existence is of extreme
significance .

The Gujarat High Court in Rasikbhai Ramsing Rana v. State of Gujarat 82held that the proper
to clinical remedy is one of the primary human rights that must be made to be had to all of us.
The court similarly guided the involved prison government to take right intellectual and
bodily fitness care of the prisoners which have been affected by any sort of disease.

80
1989 AIR 2039, 1989 SCR (3) 997.
81
1996 SCC (4) 37, JT 1996 (6) 43.
82
1999 CriLJ 1975, (1999) 1 GLR 176.

47
The same court, in a suo moto writ, issued suggestions to the Central authorities to equip all
Central and District jails with centers along with ICCU, pathology lab, gifted doctors, enough
team of workers which includes nurses and modern-day units for clinical remedy.

3.3.9 Right To A Speedy Trial

It may be very nicely stated that justice not on time is justice denied. Every prisoner has a
proper to a fast trial regardless of the crime he's convicted of. Speedy trial is taken into
consideration as an indispensable a part of the criminal justice transport system. Once
someone is accused, he need to be concern to fast trials with a view to punish him from the
crime he devoted or absolve him from it, if now no longer confirmed guilty. No one must be
concern to long, pending and tiresome trials because it now no longer handiest violates the
rights of an man or woman however is taken into consideration to be the denial of justice
altogether. The proper to a fast trial, consequently, has come to be a universally diagnosed
human proper. Moreover, the proper to a fast trial is likewise contained under Section 309 of
the Code of Criminal Procedure 83. If this provision of the Cr.PC is accompanied and carried
out in its authentic spirit, all of the grievances and queries of prisoners might be resolved.

Case Laws

83
Section 309 in The Code Of Criminal Procedure, 1973

309. Power to postpone or adjourn proceedings.

(1) In every inquiry or trial, the proceedings shall be held as expeditiously as possible, and in particular, when
the examination of witnesses has once begun, the same shall be continued from day to day until all the witnesses
in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day
to be necessary for reasons to be recorded.

(2) If the Court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable
to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be
recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable,
and may by a warrant remand the accused if in custody: Provided that no Magistrate shall remand an accused
person to custody under this section for a term exceeding fifteen days at a time:

Provided further that when witnesses are in attendance, no adjournment or postponement shall be granted,
without examining them, except for special reasons to be recorded in writing: 1 Provided also that no
adjournment shall be granted for the purpose only of enabling the accused person to show cause against the
sentence proposed to be imposed on him.]

Explanation 1.- If sufficient evidence has been obtained to raise a suspicion that the accused may have
committed an offence, and it appears likely that further evidence may be obtained by a remand, this is a
reasonable cause for a remand.

Explanation 2.- The terms on which an adjournment or postponement may be granted include, in appropriate
cases, the payment of costs by the prosecution or the accused.

48
1. In AR Antulay v. RS Nayak84 the Supreme Court laid down complete suggestions for
accused convicted in a criminal case, however, it did now no longer prescribe a hard and fast
term for the trial of offences. The court stated that the proper to fast trial flows from Article
21 and it consists of in its ambit all of the levels of research like inquiry, trial, appeal,
revision and re-trial. The court in addition said that an accused can't be denied his proper to
fast trial simply at the floor that he did now no longer call for the equal. It additionally
reiterated that the time restrict of a tribulation wishes to be determined by maintaining
positive instances in thoughts inclusive of the character of the offence, range of accused,
range of witnesses, the quantity of workload at the court, etc,

The court ultimately involves the belief in the hobby of herbal justice that after the proper to
fast trial of a convict has been violated the expenses of the conviction will be quashed.

2. Justice S. S. Hasan of the Patna High Court emphatically said in the case of
Madheshwardhari Singh and Anr. v. State of Bihar 85
that there could be an afternoon in
destiny in which it'd be realised that a length of much less than ten years in handing over
justice to a celebration could be taken into consideration as an unjustified delay, thereafter it'd
be endeavoured and taken down to two years and it'd be on that day that justice, in the actual
sense, could be served. He additionally pinned his hopes on courts everywhere in the country
that they may be aware toward the proper of an indicted character to get fast disposal of his
indictment and additionally think about the hassle that has been induced to the events because
of such delays which had been past their control.

3.3.10 Right To Prison Aid

Legal help performs a enormous component in the lifestyles of an accused anticipating trial
or any prisoner or convicts, for that matter. The 42nd Amendment to the Constitution (1976)
86
of India integrated offerings of loose prison resource as Article 39A 87
under the top
Directive Principles of State Policy. Though this newsletter is a part of the directive standards
84
1988 AIR 1531, 1988 SCR Supl. (1) 1
85
 1986 CriLJ 1771.
86
THE CONSTITUTION (FORTY-SECOND AMENDMENT) ACT, 1976
Statement of Objects and Reasons appended to the Constitution (Forty-fourth Amendment) Bill, 1976 (Bill
No.91 of 1976) which was enacted as THE CONSTITUTION (Forty-second Amendment) Act, 1976

87
Article 39(a) in The Constitution Of India 1949 (a) that the citizens, men and women equally, have the right
to an adequate means to livelihood;

49
of state coverage and hence, now no longer enforceable, the standards underlined therein are
of maximum importance. It is incumbent upon the State to hold this newsletter in thoughts
even as framing guidelines and guidelines for prisoners, criminals or convicts.

The parliament has enacted the Legal Services Authorities Act in 1987 88
in which it assured
prison Aid. It additionally directed numerous state governments to installation Legal Aid and
Advice Boards, and body schemes aiming to offer Free Legal Aid. This changed into
completed in order that the Constitutional mandate of Article 39-A can be given an effect. If
we investigate the jurisprudence of Indian Human Rights, it could be stated that prison
resource is of wider measurement and it's far to be had in civil, administrative or sales
instances apart from simply criminal instances.

In the case of Madhav Hayawadanrao Hoskot v. the State Of Maharashtra89, the three-choose
bench of the Supreme Court of India study Articles 21 and Articles 39-A in conjunction with
Article 142 90and Section 304 of CrPC 91
collectively emphasised that the authorities of the

88
Legal Services Authorities Act in 1987.
89
1978 AIR 1548, 1979 SCR (1) 192.
90
Article 142 in The Constitution Of India 1949

142. Enforcement of decrees and orders of Supreme Court and unless as to discovery, etc ( 1 ) The Supreme
Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing
complete justice in any cause or matter pending before it, and any decree so passed or orders so made shall be
enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by
Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe

(2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects
the whole of the territory of India, have all and every power to make any order for the purpose of securing the
attendance of any person, the discovery or production of any documents, or the investigation or punishment of
any contempt of itself.
91
Section 304 in The Code Of Criminal Procedure, 1973

304. Legal aid to accused at State expense in certain cases.

(1) Where, in a trial before the Court of Session, the accused is not represented by a pleader, and where it
appears to the Court that the accused has not sufficient means to engage a pleader, the Court shall assign a
pleader for his defence at the expense of the State.

(2) The High Court may, with the previous approval of the State Government, make rules providing for-

(a) the mode of selecting pleaders for defence under sub- section (1);

(b) the facilities to be allowed to such pleaders by the Courts;

(c) the fees payable to such pleaders by the Government, and generally, for carrying out the purposes of sub-
section (1).

(3) The State Government may, by notification, direct that, as from such date as may be specified in the
notification, the provisions of sub- sections (1) and (2) shall apply in relation to any class of trials before other
Courts in the State as they apply in relation to trials before Courts of Session

50
united states of america is under a responsibility to resource and offer prison offerings to the
convicted or accused individual.

Justice Krishna Iyer emphatically declared that “Right to free prison resource is the State‘s
responsibility and now no longer Government’s charity”.

3.3.11 Right Towards Inhuman Treatment

It is the proper of each prisoner to be protected towards any sort of merciless or inhuman
treatment. The Supreme Court of India in numerous instances has highlighted the cruel
remedies confronted via way of means of prisoners and directed state and jail government to
test and alter the equal. The court additionally prohibited the usage of devices inclusive of
handcuffs, chains, irons and straitjackets in punishing the prisoners. Some different devices
of restraint are permissible however simplest under positive instances. These instances are
cited hereunder:

 Using devices of restraint for precaution in the course of the switch of prisoners
towards escape, conditional upon the reality that it will be eliminated even as
generating the prisoner earlier than an administrative or judicial body.
 If the scientific officer lets in the equal on positive scientific grounds;
 In instances in which it's far tough to save you a prisoner from self-damage or
destructive the belongings around, the director in session with the scientific officer
and after reporting the better administrative authority might also additionally order the
prisoner to be installed devices of restraint.

The styles and way of use of devices of restraint will be determined via way of means of the
imperative jail administration. Such devices ought to now no longer be carried out for any
further time than is exactly necessary.

Case Laws

In Sunil Gupta v. the State of MP92, the petitioners had voluntarily surrendered themselves.
They even refused to bail out and determined to live in jail for the reason of public good.
Even eleven though they had been installed handcuffs and brought to court via way of means
of the escort party. The courtroom docket expressed that the act completed via way of means
of the escort party changed into inhuman in nature and violative of Article 21 of the

92
1990 SCR (2) 871, 1990 SCC (3) 119.

51
Constitution. The court additionally directed the authorities to take on the spot and suitable
motion towards the defaulting escort component for having acted unjustly and unreasonably
in handcuffing the prisoners.

In the case of Kadra Pehadiya v. the State of Bihar 93, the court expressed its anger at seeing
four petitioners who had been simply undertrial prisoners anticipating their trial chained in
leg irons. The court dominated that such acts are gross violations of all jail guidelines and of
the suggestions set by the court in the case of Sunil Batra. The court thereafter directed the
Superintendent to get rid of leg irons from the feet of the four petitioners immediately. The
court additionally directed that no convict or undertrial prisoner will be stored in leg irons
besides according with the ratio of the selection of Sunil Batra’s case.

3.3.12 Right To Education

Right to training is a Fundamental Right and consequently it have to take delivery of to each
citizen of the country. Along with training, it's miles obligatory that the proper form of
training have to be imparted. In Mohammad Giasuddin v. State of Andhra Pradesh94, the
court attempted to alter the way of labor and training furnished to the inmates of the jail. It
directed the state authorities to investigate the character of labor and training given to the
prisoners and take a look at that the paintings provided is “now no longer of a monotonous,
mechanical, highbrow or like kind combined with a identify guide labour…”. The court in
addition said the centers of liaison thru correspondence publications should additionally take
delivery of to the prisoners who're inquisitive about doing better or superior studies.
Moreover, fundamental studying along with tailoring, embroidery, doll-making have to be
prolonged to the ladies prisoners. In addition to that, the well-knowledgeable prisoners have
to take delivery of the possibilities to interact in a few kind of mental-cum-guide efficient
paintings.

3.3.13 Right To Acquire Books/Magazines

In George Fernandes v. State95, the court took awareness of the case in which the
Superintendent of the Nagpur Central Jail had constant the quantity of books to be allowed to
the inmates to be 12. However, the strength to take such selections changed into now no
longer vested in him, though being a superintendent he ought to disallow a book terming it as

93
AIR 1981 SC 939 b, 1981 (29) BLJR 300, 1981 CriLJ 481, (1981) 3 SCC 671.
94
1977 AIR 1926, 1978 SCR (1) 153.
95
(1964) 66 BOMLR 185.

52
“unsuitable”. This changed into said in consonance with the Bombay Conditions of Detention
Order, 195196.

The court in addition added “all of the restraints on liberty, that no knowledge, studying and
pursuit of happiness is the maximum irksome and least justifiable. Improvement of thoughts
can't be thwarted however for brilliant and simply circumstances. It is widely recognized that
books of training and usual reward were written in prison cells.”

3.3.14 Right To Publication

The Supreme courtroom held in a case in which the prisoner changed into now no longer
allowed to study a systematic book that there has been not anything in the Bombay Detention
Order, 1951 that prohibits a prisoner from writing or publishing a book. It said that the book
prisoner desired to study changed into simply a piece of science, (“Inside the Atom”) and it
couldn't be appeared as unfavorable to public hobby or protection as furnished below the
Defence of India Rules, 196297.

Further, in State of Maharashtra v. Prabhakar Pandurang Sanzgir 98 in which an accused

detained below preventive detention changed into now no longer allowed handy over his
unpublished book to his spouse for guide, the court termed such an act as violative of Article
21.

In but any other case of Rajgopal v. State of Tamil Nadu 99, the Supreme Court held that there
has been no authority in regulation that might priorly deny the permission to put up the
autobiography of Auto Shanker (prisoner) below the worry or impact that it'd reason
defamation of outstanding IAS and IPS officers. The involved officers can take motion after
the guide and handiest if the courses are false.

96
Bombay Conditions of Detention Order, 1951.
97
THE DEFENCE OF INDIA ACT, 1962
98
1986 (1) BomCR 272.
99
1995 AIR 264, 1994 SCC (6) 632

53
 CHAPTER IV

CONJUGAL RIGHTS : A CRITICAL STUDY IN INDIAN AND HUMAN RIGHTS

PERCEPECTIVE
4.1 Introduction

Denying primary rights to prisoner in custody is an ascertained strike on human dignity

which can smash the personality of an individual and each time human dignity injured,
civilisation takes a step backwards. It ruins the prisoner each bodily and mentally. They live
in a situation of endless apprehension and horror each time they bear in mind their custodial
agony. Haunted through denial of primary rights possibly have an effect on the conjugal
lifestyles of prisoner.

A marriage is a herbal bond guided through herbal legal guidelines taught through motivation
conscience, nature and custom. Marriage is described as: The settlement made through a
person and a women to stay as husband and wife 100 . It also can be defined as culturally or
legally sanctioned union. So, marriage is speculated to be a dating that joins a person and a
woman collectively via an implied binding settlement or a non secular belief; as is relevant
and conventional in specific societies.

Marriage turns person into complete. It teaches to recognize the responsibilities, adopt the
duties to feed other, offer clothes, shelter, satisfaction, recognize and to assist in each activity.
It legalizes sexual activities, makes couples sense relaxed; builds compatibility in music with
every other, and develops the general relationship.

100
dictionary.reference.com

54
The historical and primary concept in the back of marriage is to legalize sexual sex assembly
the sexual urge and to convey virtuous toddler and to construct a very good society. Thus the
phrase marriage itself shows that intercourse is allowed among the couples which strengthens
the emotional bonds and drives the strain away among them. Sex is conventional as a signal
of loving the companion opportunity to verbal expression of displaying of care and emotion.

Criminal Law is full-size in a preferred public for keeping peace. Criminal Law have to be
sufficiently stable each in its substance and moreover in its execution, with out being
onerous. This quality is needed in all branches of regulation but it's miles excessively tough
in criminal regulation for the reason that stakes covered are extraordinarily excessive as a
ways as social impairment of various sorts. 101

India, being the best majority policies machine i.e. consultant authorities of the world,
embedded in its legal guidelines, safeguarding of lifestyles and individual freedom as one of
the primary essential rights. It is stated through V.R. Krishna Iyer, J., that custodial torture is
the inhuman and degrading treatment in the direction of the prisoner’s and it's miles extra
horrible than the terrorisim because in the back of this torture hand of country authority is
there.102 India is the party to each International conference which guarantees and safeguards
the human rights103. These gives ascend to address - why such episodes nevertheless prevails?
This fact depicts an opposing image of our country to world at large.104

The Prison is the oldest penal institution known to mankind. The Penal Laws of every
country offer to punish individuals for commission of any act classified as a crime in that
country. Every human enjoys certain rights by the virtue of his being i.e. Human rights. In
India, an extension of these human rights is provided to every citizen in the form of
Fundamental Rights. These fundamental rights are provided to all the citizens (certain rights
to even non-citizens) including the prisoners. Justice Krishna Aiyer in the case Charles
Sobraj v. The  Superintendent, Central Jail, Tihar 105has opined that “Imprisonment does not
spell farewell to fundamental rights although, by a realistic re-appraisal, Courts will refuse to
recognise the full panoply of Part III enjoyed by a free citizen”. Therefore, it is that the

101
Ahmad Siddique and Afzal Qadri, Criminology (2007) p.19.
102
“Custodial torture worse than terrorism”,
http://www.thehindu.com/2003/07/27/stories/2003072703510500.htm, visited on 10.02.2022.
103
Jaswal, Paramjit S. And Jaswal, Nishtha, “Police Atrocities, Human Rights and Judicial Wisdom, HUMAN
RIGHTS YEAR BOOK”, 2010 P.208
104
Jinee Lokaneeta,, “Torture in Postcolonial India: A Liberal Paradox?” (unpublished manuscript) (on file with
author)
105
1978 AIR 1514

55
prisoners will only be denied rights ancillary to the punishment such as right to movement
etc. and are free to enjoy all the other basic rights. In the subject matter of rights of prisoners,
the ‘Right to Life and Personal Liberty’ holds a paramount position.

4.2 History Of Conjugal Visit

Historically Mississippi State Penitentiary accepted imprisoned guys to interact in conjugal

visits with other halves; conjugal visits needed to be with married contrary intercourse
couples, and the Mississippi Department of Corrections (MDOC) did now no longer
encompass couples of not unusual place law marriages in its definition of marriage that
makes a pair eligible for conjugal visits. MSP prisoners of "A" and "B" custody degrees have
been accepted to interact in conjugal visits in the event that they had no rule violation reviews
in the preceding six months main to every conjugal go to. According to the selection of Chris
Epps, the MDOC commissioner, the complete Mississippi state prison system ended conjugal
visits in February 2014. Epps said that the opportunity of making unmarried parents and the
charges have been the motives why conjugal visits ended.

Formal facts pointing out whilst conjugal visits started at MSP do now no longer exist;
Mississippi become the first state to permit for conjugal visits to arise in prisons. Columbus
B. Hopper, writer of "The Evolution of Conjugal Visiting in Mississippi," stated "In all
probability, conjugal touring started as soon as Parchman Plantation become made into a jail
in 1900" and that "I traced it back really as early as 1918." There become no state manage or
criminal repute for conjugal visits. Originally best African-American guys have been allowed
to participate, as society believed that the sexual drives of black guys have been more potent
than the ones of white guys. Prison government believed that if black men have been allowed
to have sexual intercourse, they could be greater efficient in the farming industries in the
prison. By the 1930s, the government had accepted white guys to receive conjugal visits.
Because the officers did now no longer need pregnancies to arise, at that point they did now
no longer allow woman prisoners to have conjugal visits. In the 1930s, on Sunday afternoons,
prostitutes visited Parchman and visited the jail camps. Hopper stated that a prisoner's tune
said that a prostitute charged 50 cents for her services, "now no longer a small quantity
throughout the Great Depression whilst many human beings labored a 12-hour day for a
dollar."

56
Originally there have been no targeted centers for conjugal visits. Some prisoners used device
sheds and garage regions withinside the camp regions, and others took their other halves and
girlfriends into the prisoner barracks and located blankets over beds to permit for privacy. In
1940 prisoners started building unique homes utilized by prisoners and their households for
the duration of conjugal visits. In 1962, Hopper, in the The Journal of Criminal Law,
Criminology, and Police Science, stated that the Mississippi State Penitentiary had the
maximum liberal visitation application in the United States. Rules of visitation and leave,
followed in 1944, allowed inmates to make domestic visits for different motives than
emergency. According to a 1956 survey106 It become the best correctional facility withinside
the country to do so. Inmates have been allowed to be visited each Sunday for two hours via
way of means of their other halves. In 1962 every Parchman camp, apart from the most safety
camps, housed a five to ten room shape referred to as a pink residence; every residence is
close to the principle gate of the principle camp building.

In the residence, the inmate and his spouse may also interact in sexual intercourse. Children
are encouraged through the prison government to go to; as of 1962 one camp homes a play
vicinity for children. The Parchman conjugal go to application is designed so that every one
contributors of the own circle of relatives may also have interaction with a selected prisoner.
In 1962 the jail officers stated that the conjugal visits have been an important component in
keeping marriages of inmates and lowering jail homosexuality. During that year, maximum
inmates stated favorable reviews approximately the conjugal application 107. David Oshinsky,
writer of worse than Slavery, stated that the statements concerning the renovation of
marriages have been "likely" to be accurate and the statements concerning the jail sexuality
have been "probably" now no longer true 108
. Penologists said that elements which can have
contributed to the improvement of the device have been the energy of own circle of relatives
ties in rural regions, Parchman being, in the phrases of the Dictionary of American Penology,
"on the whole an agricultural plantation that may be a self-contained, socio cultural device
functioning lots as a way of life in and of itself", the emphasis located on agricultural
production, and the small sizes of the camps, because the guards in the camps knew the
prisoners on private bases. The dictionary stated that due to the lack of facts, it become now

106
Josh Sanburn, ―The Prison Program Falls Out of Birth Place in its Favor‖, Nation Time, Jan. 13, 2014.
107
Hopper 1962, p. 342.
108
Oshinsky, ―David M.: Worse Than Slavery: Parchman Farm and the Ordeal of Jim Crow Justice‖, Free
Press, 1997.

57
no longer feasible to inform if the conjugal go to application decreased jail sexuality or
recidivism.

In the 1970s, Parchman nevertheless did now no longer preserve facts at the conjugal visits
that happened at the facility. In 1972 women at Parchman have become eligible for conjugal
visits. In 1974, prisoners of each sexes have been accepted to have three-day, two-night time
own circle of relatives visits. In the 80s guards stated that inmates have been greater docile in
the event that they had periodic sexual get entry to to their other halves. Robert Cross of the
Chicago Tribune stated in 1985 that the MSP application acquired distinctly little interest as
compared to more recent and greater restrained conjugal go to policies in California,
Connecticut, New Mexico, New York, South Carolina, and Washington. Cross delivered that
"The difference, perhaps, is that during Mississippi, in which Parchman serves because the
best penitentiary, no one issued proclamations or spread out the problem for debate." As of
1996 a newly mounted Parchman unit used conjugal visits as a praise in a behavioral
modification application. As of 1996, an ordinary married prisoner at Parchman had one
conjugal go to each two weeks, and periodically used the own circle of relatives visits.

Over time, the system proved pretty effective. So over the following forty years, new prisons
included unique homes mainly designed for Sunday "visits." Today, conjugal visitation
programs, additionally referred to as the Extended Family Visit, best survive in six states:
California, Connecticut, Mississippi, New Mexico, New York and Washington.

4.3 Mulaqat System

Present Mulaqat System: The Mulaqat System is a significant aspect of prison reform system
it helps the convicts to lead a civilized life once he is released from the prison. This Mulaqat
system plays a vital role in keeping the personal bond intact between the inmates and their
relatives. The prisoners are allowed to meet their family by Mulaqat System. The present
Mulaqat is for a short period of time like twenty minutes and it is conducted in an
uncomfortable place with no right to privacy. Previously in Tihar jail, the prisoner would
stand in front of the visitor, the two being separated by a double-walled with grill windows,
so they could see and talk to each other but could not touch each other so that there is not any
transfer of objectionable material. Tihar jail improvised the Mulaqat Section by converting
the grilled windows into thick toughened glass windows in the double-wall that separates the

58
prisoners from the visitors109. The Present Mulaqat system takes place in a crowded noisy
place for a short period of time. The visitor and the inmate cannot able to talk about anything
personal and express their feelings because they will be accompanied by the jail officials.
This will entirely collapse the bond between the family and the inmates. It is necessary to
have some private time with family and friends because that will ensure the personal bonding
between them. It is essential that the inmates feel these personal bonding and emotional
bonding because this way the inmates will understand the mistake that he has committed and
this will eventually help them to reform and also this will drastically decrease the prison
crimes.

4.4 British Period Mulaqat System:

During the British colonialism, there are 2 types of Mulaqat that are Kacchi Mulaqat and
Pakki Mulaqat. The Britishers were aware that regulating the sexual urge of convicts was
important for smooth administration in jails hence they allowed conjugal visits. In the Pakki
Mulaqat, the Inmates are allowed to spend their time with his wife in private. This practise
has been done away now which has given rise to homosexuality and Physical Harassment
inside the prisons. This Pakki Mulaqat enhances the integration of the inmate with his family
and instils self-discipline and family responsibility. The Criminology and Criminal Justice
Administration Unit of the Social Work Department of Lucknow University conducted a
research and it points out that in several cases, Convicts often discover that their wives have
either left them or developed a post-marital relationship which affects criminals and
emotionally shatters them. Also at the time of research, there were about 78.5%married
convicts in Model jail in Lucknow as well as in Tihar 110. This emotional trauma will only
push them on the wrong side of the law that affects the very purpose of their jail
imprisonment.

4.5 Understanding Conjugal Rights

109
Priyadarshi Nagda, A Socio-legal Study of Prison System And Its Reforms In India, Available at
https://shodhganga.inflibnet.ac.in/bitstream/10603/147761/1/priyadarshi%20nagda.pdf, Last Visited on
Feburary 26, 2022.
110
Mridul Srivastava, Convicts need, Pukki Mulaqat, Available at
https://www.hindustantimes.com/india/convictsneed-pukki-mulaqat/story-wnbP3GlfDTsIyWlezAlwDO.html
Last Visited on: Feburary, 26, 2022.

59
A conjugal visit may be described as wherein an inmate’s has right to satisfy his or her
spouse, all through which the couple is authorized to interact in sexual relations. Mostly visits
are supposed to accomplice with sexual interest. Physical intimacy in conjugal visits consists
of any non-public interest which they choice inclusive of holding hands, hugging, kissing,
romantic touching and sexual act.

The thoughts in the back of permitting conjugal visits had been to bind the own circle of
relatives ties from being broken. It turned into notion that if inmates are allowed to satisfy
their family occasionally then there can be ethical reform withinside the prisoner’s and social
adjustment can be there. The trendy biological traits of guys aren't precise in expressing their
worries to different residing partners, so making love is a manner in their expression. To
women, sex is an act. They want to be caressed, kissed and loved. Thus each assist to deepen
the couple’s spouse and to build a sturdy bonding and to additionally assist to drive the
pressure away.

Physical intimacy whilst welcomed through our our bodies through hug or a hint or different
experiences, then it releases various chemical compounds: serotonin oxytocin and dopamine.
Oxytocin will increase our desire to bond, Dopamine improves our temper and serotonin
allows us to combat in opposition to melancholy and left with a completely pleasant feeling
at the couples.

In India, conjugal visit isn't permitted. A conjugal visit is a non-public assembly with a
sexual associate with an inmate of prison which include to permit bodily interest which the
prisoner choice in an remoted and separate place.

4.6 Philosophy for established order of prisons and Conjugal visitation

A jail is an area used as a correction centre in which people are bodily detained through
suspending a number of personal freedoms. It is generally enclosed through partitions or
different boundaries to prevent break out of prisoners. It is inflicted through manner of
criminal punishment through a national authority for committing of a criminal offense or
violation of its prescribed rule. Different international locations observe distinctive views
whilst coping with convicts and causing punishment, techniques of which incorporates a)

60
punitive, b) deterrence, c) reformative d) Retributive e) Capital Punishment and so on as to
shield a society, person or state free from crime.

Punishment method struggling a person for committing wrongs; because of this he can also
additionally be restrained right into a prison. According to Collins Dictionary Jail method an
area in which people are kept locked up, both due to the fact they had been located guilty of
committing a criminal offense or due to the fact they are ready to be attempted for a criminal
offense. The cause for Reformative Form of Punishment is for the ethical improvement of the
criminal who has been provided sentence of imprisonment as to prevention from further
occurrence.

In India, commonly punishments withinside the shape of imprisonment imposed upon any
accused man or woman as both to save you or to reform that culprit from indulging into equal
varieties of criminal activities any similarly. The extra heinous crime committed, the extra
grievous punishment inflicted. Amongst all of the theories of punishments, the concept of
Reformative punishment intends to reform the culprit from similarly committing that offence.
This concept has of the view that an culprit commits a criminal offense whilst there arises
dispute among his individual and the intention. One can also additionally indulge into
committing a criminal offense both due to the fact the enticement of the purpose will become
extra grounded or due to the fact the restrain inflict through individual will become weaker.
When that human being will become tempted he is taking regulation into his fingers and
commits a criminal offense.

The reformative concept of punishment intends to make the individual of the person strong in
order that he doesn’t emerge as the sufferer of his enticement. If a person commits a criminal
offense he does now no longer end to be a human being. This concept might additionally
recall medication in reformation of the culprit as it treats crime as a disease. For this cause
this concept indicates such sort of punishment like imprisonment that's suitable to be inflicted
upon a criminal to for its transformation through offering physical, ethical and intellectual
guide to enhance the individual and temptation of a criminal.

The authentic cause for conjugal visits turned into to encourage inmates to preserve own
circle of relatives relations. So that she or he might have cause to act and could research the
social and ethical behaviour properly.

61
Physical intimacy whilst welcomed through our bodies through hug or a hint or different
experiences, it releases numerous chemical compounds inclusive of: dopamine, oxytocin, and
serotonin . Oxytocin will increase our choice to bond, Dopamine improves our temper and
111

serotonin allows us to combat in opposition to melancholy and left with a completely pleasant
feeling with the couples.112

The Judiciary expanding the ambit of ‘life’ in the case of Francis Coralie v the
Administrator, Delhi 113has stated that life is not just the mere animal existence, it includes all
the bare necessities of life such as adequate nutrition, clothing, shelter and all that is
conducive for a living. In the expanse, there is a question posed to the Judiciary, whether the
right to life enjoyed by prisoners includes the right to procreate, conjugal visits and artificial
insemination.

In G. Bhargava, President M/s. Gareeb v. State of Andhra Pradesh 114, the Andhra Pradesh
High Court denied the provision for any such right to the prisoners on the ground that such a
provision was not provided in the AP Prison Rules, 1979 and conferring such a benefit to one
prisoner will be unfavourable to the others. However, two years down the line the Punjab and
Haryana High Court held that the ‘Right to Procreate’ falls within the purview of right to life
and personal liberty enshrined in Article 21 of the Constitution and thereby recognised the
‘right to conjugal visit’ or ‘right to procreation’ as a fragment of the ‘Right to Life’ of
Prisoners.

All residents (some rights even to non-citizens) are granted such basic rights, including the
inmates. In the case of Charles Sobraj v. Superintendent, Central Jail, Tihar, Justice Krishna
Aiyer stated that “Imprisonment does not say goodbye to fundamental rights although,
through a realistic reassessment, the courts will refuse to recognize the full scope of Part III
enjoyed by a free citizen.” Thus, it is that the prisoners will only be denied rights that are
ancillary to the punishment.
In G. Bhargava, Chair M / s. Gareeb v. State of Andhra Pradesh, the Andhra Pradesh High
Court denied any such right to prisoners on the ground that such a provision was not provided
for in the 1979 AP Prison Rules and that it would be unfavourable to confer such benefit on
111
“The Good Drug Guide”- “The Hedonistic Imperative”, www.hedweb.com
112
Healing with Sex - Health - Science - Spirit, www.health-science-spirit.com
113
1981 AIR 746
114
PIL No.251 of 2012 decided on 16 July 2012

62
one prisoner on the other. Two years down the line, however, the Punjab and Haryana High
Court held that the ‘right to procreate’ falls within the purview of the right to life and
personal freedom enshrined in Article 21 of the Constitution, thus recognizing the ‘right to a
conjugal visit’ or the ‘right to procreate’ as a fragment of the prisoners’ ‘right to life.’

4.7 Human Rights Issues Pertaining To Conjugal Rights Of Inmates

Never before in its history, was jail management in India subjected to this sort of vital review
through the better judiciary as withinside the previous couple of decades. Discarding its
erstwhile ―arms off doctrine in the direction of prisons, the Supreme Court of India got here
strongly in favour of judicial scrutiny and intervention on every occasion the rights of
prisoners in detention or custody have been determined to have been infringed upon. In Sunil
Batra v. Delhi Administration and Others (1978)115, Mr. Justice V. R. Krishna Iyer
pronounced: “prisoners have enforceable liberties, devalued can be however now no longer
demonetized; and below our primary scheme, Prison power have to bow earlier than Judge
Power, if essential freedoms are in jeopardy‖. Again in Sunil Batra v. Delhi Administration
(1979)116 , the Court requested and affirmed: “Are prisoners‘ men and women? Yes, of route.
To solution in the negative is to convict the country and the Constitution of dehumanization
and to repudiate the sector prison order, which now acknowledges rights of prisoners
withinside the International Covenant on Prisoners‘ Rights to which our us of a has signed
assent”.
In some of judgments on diverse factors of jail management, the Supreme Court of India has
laid down three wide standards:
A individual in jail does now no longer emerge as a non-individual.
A individual in jail is entitled to all human rights withinside the boundaries of imprisonment.
There is no justification in nerve-racking the struggling already inherent in the system of
incarceration. Obviously, those standards have extreme implications for jail management.
They now no longer best name for an intensive restructuring of the jail system in phrases of
the humanization of jail conditions, minimal requirements for institutional care, reorientation
of jail staff, reorganization of jail applications and clarification of prisons guidelines and
regulations.

115
1978 AIR 1675, 1979 SCR (1) 392
116
1980 AIR 1579, 1980 SCR (2) 557

63
 From this viewpoint, a number of the diverse directives issued through the Supreme Court of
India, in Sunil Batra v. Delhi Administration (1979)117, the subsequent deserve a unique
mention:
“It is imperative, as implicit in article 21, that life or liberty shall now no longer be saved in
suspended animation or congealed into animal existence with out the freshening flow of
honest method. Fair method in managing the prisoners requires some other measurement of
get right of entry to of regulation-provision, withinside the clean attain of the regulation
which limits liberty to men and women who're avoided from moving out of jail gates”.
“No prisoner may be for my part subjected to deprivation now no longer necessitated through
the reality of incarceration and the sentence of court. All different freedoms belong to him –
to examine and write, workout and recreation, meditation and chant, innovative comforts like
safety from extreme bloodless and heat, freedom from indignities like obligatory nudity,
compelled sodomy and different insufferable vulgarity, motion withinside the jail campus
difficulty to necessities of discipline and security, the minimal joys of self-expression, to
gather talents and strategies and all different essential rights tailor-made to the restrictions of
imprisonment.”
Inflictions might also additionally take protean forms, aside from bodily attacks, pushing the
prisoner into a solitary cell, denial of a vital amenity, and, extra dreadful someday switch to a
distant jail in which visits or Society of Friends or relations can be snapped, allotment of
degrading labour, assigning him to determined or difficult gang and the like, can be punitive
in impact. Every such suffering or abridgement is an infraction of liberty or lifestyles in its
wider feel and can not be sustained until Article 21. There have to be a corrective prison
method honest and affordable and effective. Such infraction could be arbitrary, below Article
14, if it is depending on unguided discretion; unreasonable, below Article 19 if it's miles
irremediable and unappeasable; and unfair below Article 21 if it violates natural justice.
The jail authority has responsibility to present impact to the court sentence. To provide
impact to the sentence manner that it is unlawful to exceed it and so it follows that jail
respectable who goes past mere imprisonment or deprivation of locomotion and attacks or in
any other case compels the doing of things now no longer protected through the sentence acts
in violation of Article 19. Punishments of rigorous imprisonment oblige the inmates to do
difficult labour, now no longer harsh labour. “Hard labour in Section 53, Prisons Act to
acquire a humane meaning. So a vindictive officer victimizing a prisoner through forcing on

117
Ibid.

64
him specially harsh and degrading jobs violates the regulation‘s mandate. The prisoner can
not call for gentle jobs however might also additionally moderately be assigned congenial
jobs”.
The Prisons Act desires rehabilitation and Prison Manual overall overhaul, even the Model
Manual being out of attention with recuperation goals. Hence, a correctional-cum-orientation
route is necessitous for the jail team of workers in calculating the correctional values; healing
strategies and tension-unfastened management. Not best this, the jail system calls for standard
corrections, the act is silent on what precisely consists of the conjugal visit. The Indian
civilization has efficaciously emerged out of a inflexible flaw-tugged anti-progressive society
to a democratic body, subsequently the primary anomalies withinside the society urges to
inculcate this contemporary reform.
4.8 The Right To Life, Equality And Privacy And Restitution Of Conjugal Rights
Restitution of conjugal rights violates equality and right to life 118. Equality does now no
longer mean bodily equality among husband and spouse, however it way equality of thought,
movement and self-realisation. Moreover, it's miles anachronistic for knowledgeable ladies to
be compelled via way of means of State energy to go and stay in a place, from in which they
withdrawn. Some scholars comprehend the continuance of the treatment have is certain to
result in undesirable pregnancies and assert it as infringement of a woman‘s experience of
self-respect, dignity and man or woman fulfilment.
The right to privacy isn't expressly assured withinside the constitution, it's miles implicitly
provided in Article 21 of the constitution. There has been no constant definition of privacy.
Subba Rao, J. in Kharak Singh v State of U.P 119
“any definition of right to privacy need to
embody and protect the private intimacies of the home, own circle of relatives, marriage,
motherhood, procreation and child rearing‖. In Bai Jiva v Narsing Lal bhai 120 the Bombay
High Court held that the Courts have no right to pressure the spouse to go back to her
husband in opposition to her will. This compulsion of the Court acts as a mental restraint on
an man or woman. The US Supreme Court in Eisenstadt v Baird held121―the marital couple
isn't an impartial entity with a thoughts and a coronary heart of its own, however an
affiliation of people every with a separate highbrow and emotional makeup. If the proper of
privacy way anything, it's the proper of the man or woman married or single, to be loose
from unwarranted governmental intrusion into subjects so essentially affecting someone‖.
118
Ibid.
119
AIR 1963 S C 1295.
120
AIR 1927 Bom 264.
121
405 US 438, 31 L Ed 2d 349, 92 S Ct 1092.

65
The function is nicely defined by Justice Subba Rao in Kharak Singh‘s case122. In that case he
said that “the right to privacy liberty takes in proper now no longer most effective to be loose
from limit positioned on his actions however additionally loose from encroachments into his
private existence…In the final resort, someone‘s residence in which he lives together along
with his own circle of relatives is his castle‘: it's rampart in opposition to encroachment in
opposition to his private liberty.
If bodily restraints on someone‘s motion have an effect on his private liberty, a bodily
encroachment on his non-public lifestyles might have an effect on it to a big degree. Indeed
not anything is extra deleterious to a man‘s bodily happiness and fitness than a calculated
interference together along with his privacy. We might consequently outline right to personal
liberty in Article 21 as a proper of an man or woman to be loose from limit or encroachments
imposed at once or not directly brought approximately with the aid of using a calculated
measure”.
4.9 Human Necessities:
Human needs aren't limited; guy has been a sufferer of main desire. Sometimes, there isn't
escape. What will we want to do in such cases? We can not assist the emergence of crime in
such degrees. At this factor, it would seem to us what precisely are we focusing on?
Society does now no longer offer this element of need and want to that of a demeaning crime.
Conjugal visits can most effective be set to degrees in which there may be a room for
improvement. Rejuvenation does now no longer manifest in someday. A criminally insane
fool will by no means get over his character of criminally demarcated creature in someday
even after having been punished so brutally, it'd take years of re-corrections and the equal is
probably inhuman to the gentle hearted human beings out there, however this is justified.
Even the society has rule to comply with as nicely, all it calls for is right governance and
cooperation from the governing body, to work for the wishes of the topics and now no longer
for self-disciplinary movements and reactions. The difficulty and rule machine is primarily
based totally at the social agreement idea and the rule has been critically evolving the various
factors of a society. One such is property. The need so equalization of those properties
reasons crime. Concentration of sources in a single hand leads to devastation, society utters
no will for rule, it protests back. And in such circumstances, crime has a chief function to
play, to society a crimonious character is a non-citizen. So there arises no question of his or

122
1963 AIR 1295, 1964 SCR (1) 332

66
her needs! All this is required is thorough steerage and now no longer over-in search of the
parlance of a democratic setup.
4.10 Family Of The Criminal
A social unrest surrounds the society, whenever, there may be a crime. Crime has social
consequences, and it's miles very common, that the smallest unit of the society might get
affected entirely. But how will we relate this to conjugal proper? Strange! There is a pro-con
to each facet of an event. Good or bad, can by no means be negated in any manner. Now if
we've got someone concerned in 302, punishment for homicide below the Indian Penal Code,
sufferer is dead. The criminal is by the very vigilance of our Lawful nerves is at the back of
the bars. The tale ends! No! It brings a disaster down here.
We frequently blame the very whereabouts as to how someone could have been born and
taken up in such society, to have initiated a step of breaking the regulation be it in any
manner. While studies has regularly explored the impact of crime on its victims, little
research has targeted at the impact that crime has at the lives of the offenders‘ families.
Utilizing an ethnographic framework, consisting of in-intensity interviews, examine of crime
gives an intensive account of the myriad tribulations spouse and children undergo whilst a
member of the family commits a severe criminal offense. Though the studies addresses a
completely particular hassle that maximum people will by no means face, it's miles although
an thrilling exploration into the outcomes of criminal behaviour at the own circle of relatives
dynamic.
From a mental factor of view, the examine does a terrific task of displaying the extraordinary
degrees that own circle of relatives contributors undergo whilst a near relation commits a
heinous crime.From recalling lifestyles earlier than the crime to the popularity that society
now perspectives them as part of the problem, the studies permits the reader perception into
the disgrace that frequently accompanies a relative‘s criminal behaviour. It offers the reader a
sense for the real effects of a criminal offense dedicated with the aid of using a own circle of
relatives member, and the way life qualitatively adjustments after the crime has taken place.
From dealing with the stigma that society locations on them to melancholy and mind of
suicide, the interviewees illustrate the toll that the assumed culpability for another‘s moves
has had on their lives.
Though there exits an insightful view into the lives of the criminals‘ relatives, the real
contribution of examine as quoted in ―Families Shamed: The Consequences of Crime for
Relatives of Serious Offenders‖, is the dialogue of the self-assist motion that has taken form

67
over the beyond fifty years. For the ones analyzing the book with an eye fixed closer to
know-how their own dilemma, this segment gives steering in coping with the trauma related
to being associated to a critical perpetrator. If not anything else, analyzing approximately the
reports of others and the way they dealt with their state of affairs can be useful for people in
comparable circumstances. Again, that is now no longer always an addition to the sphere of
criminology, however useful to the ones in a similar position. At the end, it is viable to
recognize each a part of crime, and now no longer simply one facet story. Overall, even as
thrilling to look the outcomes of crime from a mental factor of view, the applicability of the
studies to the sphere of criminology is minimal.
4.11 Social Thought
With the introduction of kingdom and will, believe of humans is reposed at the protection of
regulation and order. To be very fortunate, is to have democracy in a rustic like India, and the
equal is retained for the reason that graduation of the Constitution of India. Really the
response of society for crime is an emotional of society. People will react tough quickly and
mechanically after they get blameable remedy and sufferer like murder, raping, offence,
revolt, unordered etc. that ensuing withinside the tough response of society. Although its
shape and its first-rate are so relative. Therefore the response of society is certainly
considered one among topics retained and analyzed by Criminology technology too and the
response of society is a process.
Actually there are numerous of response of society for crime and perpetrator of crime and
particularly as punitive for response of society and remedy for response of society. certainly
considered one among punitive strategies is punishment. as a punishment approach in attempt
of crime prevention, consistent with Edwin H Sutherland and Cressey whilst the punitive
response to crime become most popular, the same old assumption become that extreme
punishment each reforms folks that are punished and deters or prevents others from
committing first crimes. Even today, legislative commission appointed to make hints to
lessen crime costs to measures designed to growth severity of punishment.
This society, that we in large part name a democratic stratum, does now no longer react the
equal on incidence of each kind of crime. There is not anything to be sad approximately it. To
each crime, mind differ.

68
 CHAPTER V
PRISIONER’S CONJUGAL RIGHTS: AN INDIAN PERCEPECTIVE

5.1 Introduction

Should conjugal visitation be granted in India?

In Sunil Batra Vs. Delhi Administration (1978), Justice V.R.Krishna Iyer stated that
“Convicts are not by mere reason of the conviction denuded of all the fundamental rights
which they otherwise possess.” The State is under a commitment for safeguarding the human
rights of its citizens as well as to protect the community at large, and is authorized to do so.
Studies have repeatedly indicated that married couples, are generally more happier and have
more wealth; in comparison to single or divorced person. They feel their lives are more
fulfilling. Sexual desire is common to all adult persons and is not manmade. Throughout the
entire history of the world marriage is considered as a union between one man and one
woman. But not allowing any convict and keeping him or her in a confined room with other
convicts may encourage homosexual activities which has strongly condemned by all religious
systems of marriage. Marriage is in great need of protection. It is witnessed regularly within
the jail that often prisoners indulge into unprotected sex among inmates. The proposal has
suggested that only the visits by a legal spouse after screening the application on the basis of
inmate’s character, behaviour in jail and punishment terms. Report has proposed to construct
special houses for privacy to inmates during conjugal visits within jail premises 123 . “In
prison, sex is valued because it is highly desired and forbidden. Sex is a nature’s call formed
from a body and cannot be created. Thus to achieve this end, prisoners use sex to gain access
to their likings which in actual sense a very small commodity.” 124 . Allowing Inmate prisoner

123

124
“Analyzing Prison Sex: Reconciling Self-Expression with Safety”, Brenda V. Smith.

69
to meet with his or her legal spouse in the form of conjugal visits might seem as a welcome
development, denying to it seems as a cruel and inhuman behaviour.

5.2 Concept Of Conjugal Rights Of Prisoners

The term ‘conjugal’ refers back to the rights which might be the recognized inherent rights of
married couples in society125. It embody the rights of a pair to partner collectively, construct a
domestic collectively and experience all of the privileges of an interpersonal courting
collectively such as the proper to have ‘sex’ and ‘procreation’.
5.3 Arguments In Favour Or Towards Conjugal Affiliation Of Prisoners
At the very outset, it is important to deal with the debate regarding the price and desirability
of permitting conjugal rights to prisoners. Some of the authors favour conjugal affiliation of
prisoners while others factor out the weaknesses of this affiliation. The factors for agreement
disagreement are mentioned herewith.
One of the largest issues confronted with the aid of using the jail system is of
‘homosexuality’. Some authors recommend the view that if a more intimate courting is to be
had to prisoners then, the trouble and anxiety of homosexuality may be decreased to a
amazing extent126. They additionally recommend the factor that it is able to help lessen and
save you the prevalence of male rape which has emerge as a count of significant subject for
lots states127. By permitting prisoners to spend full-size quantity of time with their
households, the poor impact of the unisex jail surroundings may be diminished. It enables
them to reaffirm their masculinity and decrease their want to set up a manly self-image with
the aid of using victimizing different inmates. However, foremost arguments which might be
superior in competition to this viewpoint are firstly, it's been counselled that prison
homosexuality isn't always associated with heterosexual deprivation however alternatively is
an expression of the urge for mastery with the aid of using human beings who've been located
right into a role of powerlessness and secondly, the frequency of straight pastime is so
restricted that it'll have handiest minimum or negligible impact. 128
Another factor argued in favour of conjugal affiliation is that it enables to alternate and mold
the conduct of the prisoner. By organising ties with the own circle of relatives, there may be a

125
Rachel Wyatt, “Male Rape in U.S. Prisons: Are Conjugal Visits the Answer”, Case Western Reserve Journal
of International Law, Vol. 37, Issue 2, 2006, pp. 579-614, at p.598.
126
Eugene Zemans and Ruth Shonle Cavan, “Marital Relationships of Prisoners”, The Journal of Criminal Law,
Criminology and Police Science, Vol. 49, No. 1,1958, pp. 50- 57, at p. 54.
127
James E. Robertson, “A Clean Heart and an Empty Head: The Supreme Court and Sexual Terrorism in
Prison,” North California Law Review, Vol. 81, 2003, pp. 433-481, at p. 434
128
Ann Goetting, “Conjugal Association in Prison: The Debate And Its Resolutions”, New England Journal On
Prison Law, Vol. 8, 1982, pp. 141- 154, at p. 142.

70
normalizing impact. This behavioural alternate will lessen the prevalence of violence in
prison and also will put together the prisoner for re-getting into the society successfully, as
soon as he's released.
However, individuals who argue towards it are of the view there may be paucity of studies to
guide this view and the outcomes are mere speculations. They factor out that elements like
custody and safety issues, smuggling of contraband items from outside etc. neutralize the
high quality impact, if any129.
Another factor of confrontation is ethical grounds. Those who recommend conjugal
affiliation argue that humanism requires that prisoners need to be allowed to spend a while
with their households in privacy. They additionally increase the argument of “innocent”
partner and his/ her emotional and sexual frustration related to severance of marital ties with
the aid of using incarceration. The foremost rebuttal to this precise argument is that society
holds no ethical responsibility to provide inmates the privilege of sexual license and it's miles
an specific result of incarceration that prisoner should now no longer have the possibility to
experience conjugal rights or beget children.
Further, permitting conjugal visitations might imply a one-parent own circle of relatives for
years earlier than the prisoner is released. This is another social query that is raised towards
permitting conjugal affiliation to prisoners. This query is in addition aggravated while each
the spouses are in jail and conjugal affiliation is authorized. In such cases, the essential
trouble that rises is the ‘best hobby of unborn child’130.
The above debate exhibits that there may be confrontation on permitting conjugal affiliation
to prisoners. However, with the converting instances and sensitization of society toward
human rights, there may be want to alternate the mindset toward prisoners additionally. A
society that is presently debating on ‘homosexual rights’ or ‘third gender rights’ want to
planned on prisoners conjugal rights additionally.
5.4 Modes Of Conjugal Association
Conjugal affiliation may be set up while a prisoner is allowed to spend a while together along
with his partner or family in privacy. During incarceration, the conjugal rights may be loved
with the aid of using the prisoner if the state has provisions for permitting ‘conjugal visits’ in
jails. Conjugal visits in jails method while a prisoner is authorized to spend a while in privacy
together along with his partner and family contributors in the precincts of prison. The state

129
Ann Goetting, “Conjugal Association in Prison: The Debate And Its Resolutions”, New England Journal On
Prison Law, Vol. 8, 1982, pp. 141- 154, at p. 144
130
See R.P. Upadhyay vs. State of Andhra Pradesh and Others, AIR 2006 SC 1946.

71
affords infrastructure which includes separate rooms or cottages in a separate precise region
in the premises of prison in which the prisoner and his own circle of relatives is authorized
non-public time. This visit may hold for hours or days relying upon the coverage of involved
state. The State additionally affords centers like separate washrooms, linen etc. for the
prisoner and his own circle of relatives. Thus, a prisoner can experience his conjugal rights in
the precincts of prison if conjugal visits are allowed. It is pertinent to notice that many of the
states do now no longer have those conjugal visitation programs due to numerous motives
which will be mentioned in the later a part of this section.
Another mode for playing conjugal rights with the aid of using prisoners is ‘parole’ or
‘furlough’. That is, while the prisoner is launched for a transient length from the prison and
throughout such launch he spends time together along with his partner or own circle of
relatives. Almost all of the States have framed Rules for launch of folks on parole or
furlough.
The distinction among conjugal visits and ‘furlough’ or ‘parole’ is that the latter entails
unsupervised trips away from the correctional facility for a spectrum of undefined functions,
one of which can be conjugal visitation131. Both structures have their personal deserves and
demerits. One of the cons of permitting conjugal visits is inequitable remedy to prisoners.
This is due to the fact the facility can be made to be had handiest to the ones prisoners who
are married and feature their marriage intact. Such visits can not be allowed to single
prisoners or prisoners with broken marriage. That is, such visits can not be made to be had at
the foundation resembling “same opportunity” for all prisoners132. Thus, conjugal visitations
may be loved handiest by the ones prisoners who have their marriages intact while parole or
furlough does now no longer require this as a pre-situation for launch.
Another strong objection to improvement of conjugal visitation applications is that conjugal
visitations motive a further burden at the exchequer of the nation because the nation has to
increase infrastructure for making such centers to be had to prisoners and has to shell money
from the already squeezed price range while parole or furlough do now no longer require
extra infrastructural centers and keeping in thoughts the opposite competing pursuits like
overcrowding of jails, loss of primary infrastructure centers like bathrooms etc., it is not
likely that the nation might spend on the development and improvement of centers required
for conjugal visits.

131
Norman Elliot Ken, “The Legal and Sociological Dimensions of Conjugal Visitation in Prisons”, New
England Journal on Prison Law, Vol. 2, 1975, pp. 47-68, at p. 47.
132
Donald R. Johns, “Alternatives to Conjugal Visiting”, Federal Probation, Vol.35, 1971, pp.47-51, at p. 47

72
In parole or furlough the prisoner visits his domestic and the surroundings of domestic is
extra conducive, heat and pleasant for establishing own circle of relatives ties. Jail
government can not create such an surroundings in prison. However, then again there is
constantly an inherent hazard of the prisoner absconding in parole or furlough. Moreover, a
few of the prisoners who do now no longer fulfill the situations for parole or furlough (due to
period of sentence or nonfulfillment of different situations like bail bond) can also
additionally lose this proper of conjugal leisure also133.
One of the crucial sides of conjugal rights is ‘procreation’. With development of science, it
has become viable that procreation is finished by the manner of synthetic insemination. That
is, while the male and woman do now no longer are available bodily contact with every
different, alternatively the male offers a sperm for artificial insemination and the woman
receives pregnant thru it with the aid of using using the centers of artificial insemination. In
the current times, the prisoners have knocked the doorways of courts to have get admission to
to the centers of synthetic insemination for the functions of procreation mainly while the
nation does now no longer have applications for conjugal visitation or the prisoner does now
no longer qualify for claiming such proper or for brief launch on parole or furlough134.
It is pertinent to observe that the provisions concerning parole or furlough exist in all
jurisdictions throughout the globe. The main factor for dialogue is the applications of
conjugal visitations and procreation on the premise of artificial insemination.
5.5 Right To Conjugal Visitation Under Article 21 Of The Constitution
The preference for sexual intimacy and sexual expression is powerful and survives
imprisonment. Individuals in custody, despite society’s view, preserve their humanity and
personhood. As Judge Posner has written, “We should now no longer exaggerate the gap
between „us, the lawful ones, the decent ones, and the jail and prison populace; for such
exaggeration will make it too clean for us to deny that populace the rudiments of humane
consideration.”135
In D. Bhuvan Mohan Patnaik & Ors v. State of Andhra Pradesh & Ors 136 it changed into held
by the honourable Supreme Court that convicts aren't to be absolutely stripped of the

133
Norman S Hayner, “Attitudes towards Conjugal Visits for Prisoners”, Federation Probation, Vol. 36, 1972,
pp, 48- 53, at p. 48.
134
Temporary release like parole or furlough depends upon various factors like conduct of accused, severity of
sentence, fulfillment of conditions like furnishing of bail bond etc. Each state has its own rules for temporary
release of prisoners. Similarly, the states which have programs for conjugal visitation have Rules for accessing
it.
135
Johnson v. Phelan, 69 F.3d 144, 152 (1995).
136
D. Bhuvan Mohan Patnaik, (1975) 3 S.C.C. 185.

73
essential rights that they own otherwise, aleven though incarceration denudes certain essential
rights just like the proper to transport freely, interact in career in their preference etc.
Nonetheless, the convict is entitled to the alternative constitutional ensures which aren't
affected by incarceration, such as the ones under Article 21.
Further, withinside the plenty debated case of Sunil Batra v. Delhi Administration &
Ors137(popularly known as Sunil Batra I), the honourable Supreme Court, marching a long
way in advance of its time, held:
[P]positive experiments in re-humanization meditation, music, arts of self-expression, games,
beneficial work with wages, jail festivals, sramdan and service-orientated activities, visits by
and to families, even participative jail initiatives and managed network existence, are most of
the dehumanization techniques which want consideration. Social justice, withinside the jail
context, has a functional versatility hardly ever explored.
The judgment in Sunil Batra138(popularly referred to as Sunil Batra -II) that followed, added
numerous radical modifications as to how a jail is to be run, like (i) separation of below-trials
from convicts in jails; (ii) their proper to invoke Article 21 of the Constitution; (iii) separation
of younger inmates from adults; (iv) liberal visits with the aid of using own circle of relatives
and pals of prisoners; (v) ban on confinement in irons; (vi) The duties and duties of the courts
with recognize to rights of prisoners etc. In this regard it changed into held with the aid of
using the court that:
Visits to prisoners with the aid of using own circle of relatives and pals are a solace in
insulation; and most effective a dehumanised machine can derive vicarious pride in depriving
jail inmates of this humane amenity. Subject, of path, to search and field and different
protection criteria, the proper to society of fellow-men, dad and mom and different own circle
of relatives participants can't be denied withinside the mild of Article 19 and its sweep.
The Andhra Pradesh High Court in G. Bhargavi, Hyderabad v. Secy., Home Dept.,
Hyderabad and Others139 dealt with an equal problem in which a course changed into sought
to take instantaneously steps and allow conjugal visits to spouses of prisoners in jails
throughout the State of Andhra Pradesh. The court rejected the declare gazing that if conjugal
visits are to be allowed maintaining in view precise behaviour of the prisoners, probabilities
of the surroundings withinside the prison getting disturbed can't be dominated out because it
could have an negative effect on the alternative inmates of the prison who've now no longer

137
Sunil Batra-I, (1978) 4 S.C.C. 494.
138
Sunil Batra v. Delhi Administration, (1980) 3 S.C.C. 488.
139
Ms. G. Bhargavi, 2012 (5) A.L.D. 432.

74
been decided on and prolonged such benefit140.It changed into additionally found that, “It isn't
that there may be no provision in the Rules to launch the prisoners to enable them to steer
family existence with their spouses whilst they're granted furlough/depart of path for a
restricted period.”141
The essential problem of the „excellent pursuits of unborn infant of the petitioners‟ changed
into correctly raised in R. D. Upadhyay v. State of Andhra Pradesh & Ors142., which handled
the welfare of women prisoners and the bad outcomes of jail surroundings on them. The
honourable Supreme Court took observe of the record organized with the aid of using the
Tata Institute of Social Sciences at the state of affairs of children of prisoners which
counselled that the surroundings therein changed into now no longer conducive to the
upbringing of a infant. In preserving with all of the above, they discovered the stability in
favour of retaining Article 21 intact, regardless of incarceration.
5.6 Rights of the Spouse in Favour of Conjugal Visitation
The desirability of conjugal visits is a query that might and must be spoke back via way of
means of the prisoner’s partner. To deny conjugal visits to any partner who needs them must
be taken into consideration a denial of that person’s civil and human rights. While maximum
writers have handled the situation from the viewpoint of prisoners‟ rights, the prison method
to the query of conjugal visits primarily based totally at the rights of the prisoner’s partner
seems to be overlooked143.
Imprisonment of married convicts or below trial is tantamount to simultaneous punishment in
their households. Unfortunately, social rejection of the inmates‟ households is seldom an
issue. However, monetary and emotional instability, and troubles referring to sexual
frustration as a result of incarceration are prevalent. This privation is a punishment in itself,
the victims of which can be all harmless withinside the eyes of regulation, however their
essential rights are being violated. It also can be considered as not anything however a
collateral damage in view that incarceration is necessary. However, permitting conjugal visits
to the prisoner’s partner may be step one to reduce the hardships on their households.
Denial of conjugal rights to the wrongdoer’s partner is certainly a form of punishment. Such a
bar is certainly in contravention to our constitutional ensures provided under Article 21 of the
Constitution i.e. right to existence and private liberty, which extends to our right to

140
Ibid.
141
Ibid.
142
R. D. Upadhyay, (2007) 15 S.C.C. 337
143
Donald P. Schenller, Conjugal Visitation - Prisoners's Privilege or Spouse's Right?, 2(2) NEW ENG. J.
PRISON. L, 165 (1975).

75
procreation and sexual satisfaction. The paramount significance connected to sexual
satisfaction in upholding the group of marriage is clear from the truth that “impotency” is a
legitimate floor for divorce. There isn't any advantage announcing that once the State denies
conjugal rights to the wrongdoer who has been punished in keeping with the due technique of
regulation, no prison trouble arises. It is in denying those rights to the wrongdoer’s partner,
with out the due technique assured withinside the Constitution, that the State errs.144
While conjugal visitation may be taken into consideration a privilege to be prolonged to a
prisoner, whilst considered from the factor of view of the prisoner’s partner, it appears
suitable to recall it as a civil and human proper. To deny the partner conjugal visits is to
disclaim conjugal rights. To do so, with out offering due technique to the legally harmless
loose international partner, must be taken into consideration unlawful. Since different
strategies have now no longer delivered approximately the general use of conjugal visits in
our prisons, the prison method can also additionally keep a few promise for the ones wishing
to endorse this exercise no matter the judiciary’s reluctance to apprehend conjugal rights145.
5.7 Possible Benefits of Conjugal Visitation Rights
Jail reforms had been the priorities of none. A little improvement in ensuring simple human
rights, though nevertheless a ways from satisfactory, has took place with the tireless efforts of
the Indian judiciary and a steady tracking via prison inspections via way of means of the
District and High Courts with due assist from the general public spirited corporations and
people from the civil society. There are no complete plans for the rehabilitation and
resettlement of convicts, on their launch and lots of them step out of a darkish hole to fall
right into a darker ditch.
Clinton T. Duffy has advised that conjugal visits may be beneficial in decreasing the
frequency of jail riots.146 Columbus Hopper has defined their function in decreasing
homosexuality in the Mississippi State Penitentiary147.The advantage is not directly finished
via the strengthening and renovation of the prisoner’s marital bond. Donald Clemmer, in his
study148 of the jail community, observed that prisoners who preserve ties with regulation
abiding participants of the society at the same time as in jail, have a miles higher chance for
rehabilitation than prisoners who do now no longer preserve such ties.

144
Id. at 168.
145
Id. at 171.
146
C.T. Duffy, A Frank Discussion of the Prison Problem Nobody Talks About, This Week Magazine, Oct. 21,
1962 at 12.
147
C. Hopper, The Conjugal Visit at Mississippi State Penitentiary, 53 J. CRIM. L.C. & P.S. 342 (1962).
148
D. Clemmer, Observations on Imprisonment as a Source of Criminality, 41 J. CRIM. L. & CRIMINOLOGY
311 (1950).

76
The maximum stated purpose for advocating conjugal visitation has been to mitigate
homosexual tensions of the inmate population. Stanley Telega who's the Vice President of the
Fortune Society, a national rehabilitative employer for ex-convicts, who's married and is the
daddy of a younger female and is out of jail for greater than seven years, states approximately
jail homosexuality that:
Most homosexual acts in jail are carried out via way of means of inmates whose former and
number one orientation was heterosexual. However, because of the imposed unisexual
atmosphere, homosexual desires and acts developed.... Conjugal visits might assist. . .
preserve a heterosexual orientation for people who are involved approximately
homosexuality. It might additionally assist to relieve widespread tensions due to the fact
sexual tensions become fights a number of the men, so as to find a few launch149.
Fran O‟Leary, a staff member of Encounter, a New York City primarily based totally drug
prevention group, previously an inmate of prisons in New York and California, rejects
conjugal touring due to an underlying disgust with the jail system, however however
acknowledges that: Among the emotional lines for your system, the most terrific lies to your
sexual frustration. The frustration in dealing with your emotions manifests itself via
homosexuality within the jail walls. There aren't any any possibilities to behave out
heterosexual cravings . . . therefore there's a violent response to the frustration. The unhappy
and most troubling a part of jail homosexuality is whilst it is non-consensual. Sexual attacks
in jail are actually rampant epidemics. The non-consensual nature is a legitimate purpose to
propagate conjugal visitation as a sensible concept. Supporters of conjugal visitation argue
that it'll now no longer handiest lessen jail homosexuality and keep family ties, however
decrease the troubles of jail officers as well. Some jail directors have additionally advised
that conjugal touring privileges might be an incentive issue that could enhance jail discipline,
at the same time as helping the prisoner’s lives. All those elements are encouragingly
rehabilitative.
5.8 Potential Consequences of Granting the Right
Revisiting the regulation and developing room for prisoners to be offered the proper of
conjugal visits is an laborious task. A number of barriers impede its powerful
implementation. One of those is the budget and administrative necessities to allow inmates
avail this facility. Innocent taxpayers might be harassed to decorate the lives of prisoners,
which may be difficult to explain.
149
Norman Eliot Kent, Legal and Sociological Dimensions of Conjugal Visitation in Prisons, 2(47) NEW ENG.
J. PRISON. L, 58 (1975).

77
Considering the overcrowded and understaffed Indian prisons, right searches of the traffic
could be difficult to take care of. Single prisoners may sense discriminated against, on
provide of conjugal rights to married offenders. This ought to invite unrest or incidences of
violence.
Doing away with segregation could similarly open doorways for abuse of process. Prison
cells might also additionally quickly change into prostitution dens and that too on the nation
expense. Moreover, the opportunity of corruption creeping in can not be ignored. The
underpaid prison personnel might also additionally fall prey to gives of putting in place
prostitutes for prison inmates even as others might also additionally even prostitute their
family participants to earn favours from fellow inmates.
Owing to terrible infrastructure, developing area for conjugal visits in the present prisons
does now no longer appear smooth as nicely. Finally, it is argued through a critic that a
prisoner actually repentant and unselfish could now no longer challenge his/ her partner to the
situations under which conjugal visits have to be practiced. Sex is, or need to be, a private
matter. The sexual courting have to take location withinside the sanctity of the residence and
now no longer in a jail cubicle150.
In a nutshell, those are extra of ethical issues or administrative inefficiencies in place of
primarily based totally on sound logic. This requires a nicely calculated and careful
implementation, to match the public morality issues of a society like ours.

CHAPTER VI
150
Joseph K. Balough, Conjugal Visitations in Prisons: A Sociological Perspective, 28 FED. PROBATION. J,
57 (1964).

78
 JUDICIAL ANALYSIS OF CONJUGAL RIGHTS OF PRISONERS IN INDIA
6.1 Introduction
After analysing the justification for offering conjugal rights to prisoners and the modes via
which such rights can be exercised, the subsequent query that is addressed is the felony
dimensions of this right in India. In this element the jurisprudence that has evolved on
conjugal rights of prisoners in India has been analysed.
6.2 Constitutional Framework
The United Nations Basic Principles for the Treatment of Prisoners, 1990 states that besides
for the ones obstacles that are demonstrably necessitated via way of means of the reality of
incarceration, all prisoners shall hold the human rights and essential freedoms set out in the
Universal Declaration of Human Rights and wherein the State involved is a party, the
International Covenant on Economic, Social and Cultural Rights, and the International
Covenant on Civil and Political Rights and the Optional Protocol thereto, in addition to such
different rights as are set out in different United Nations covenants151. India is a signatory to
the Universal Declaration of Human Rights and the Covenants. These rights are enshrined in
our Constitution in the shape of essential rights and directive ideas of country policy.
Article 21 of the Constitution ensures that no character shall be disadvantaged of his
existence and private liberty besides in accordance to process installed by regulation. It
consists of inside its ambit the prisoners additionally. The Supreme Court in the case of D.
Bhuvan Mohan Patnaik and Others v. State of Andhra Pradesh and Others declared that
152

convicts can not be denied the safety of essential rights which they in any other case possess,
merely due to their conviction. It stated that a convict whom the regulation bids to stay in
confinement stands denuded of a number of the essential rights just like the right to transport
freely or the proper to exercise a career however such convict shall hold to experience
different constitutional ensures along with the valuable proper assured by Article 21 of the
Constitution.
Thereafter, the Supreme Court in the case of Sunil Batra v. Delhi Administration 153(popularly
referred to as Sunil Batra I) emphatically espoused that it's far an exhausting obligation of the
Court to make certain that in detention and difficulty to Constitution, the detente does now no
longer be afflicted by any torture. The Supreme Court in this example emphasised the want of
social justice by reorienting, re-travelling and re-humanizing the present strategies in the

151
Principle 5 of the Basic Principles for the Treatment of Prisoners (1990).
152
AIR 1974 SC 2092.
153
AIR 1978 SC 1675.

79
context of prisoners. The Court in this example held that the condemned prisoners will be
saved in custody and shall now no longer be positioned to paintings like the ones sentenced to
rigorous imprisonment. The Court held that convicts will be entitled to facilities of regular
inmates in the jail like games; books; newspapers; fairly right food; right to expression,
artistic and different; and everyday apparel and bedding.
Two years later, the Supreme Court withinside the case of Sunil Batra v. Delhi
Administration (popularly referred to as Sunil Batra II)154 phenomenally liberated the prison
inmates from the atrocities inflicted via intellectual torture, psychic or bodily pressure and it
introduced a catenation of radical modifications in jail situations like (i) separation of below-
trials from convicts in jails; (ii) their right to invoke Article 21 of the Constitution; (iii)
separation of younger inmates from adults; (iv) liberal visits via way of means of own circle
of relatives and friends of prisoners; (v) ban on confinement in irons; (vi) responsibilities and
responsibilities of the Courts with appreciate to rights of prisoners; and (vii) re-defining the
responsibilities of District Magistrate etc. The Supreme Court in this example pointed out
diverse maladies withinside the prison precincts along with the victimization of younger
inmates on the palms of adults.
In the case of Francis Coralie Mulin v. The Administrator 155, Union Territory of Delhi, the
Supreme Court increased the expression “non-public liberty” embedded in Article 21 of the
Constitution withinside the context of the rights of a detenue and it held that the prisoner or
detenue has all of the essential rights and different felony rights to be had to a free character,
save the ones which can be incapable of entertainment via way of means of motive of
incarceration. The Court held that no regulation which authorizes and no system which ends
up in cruel, inhuman or degrading remedy can ever stand the take a look at of reasonableness
and non- arbitrariness and therefore could it appears that evidently be void and violative of
Articles 14 and 21.
In addition to above, there are numerous different landmark judgments in which extensive
connotation is given to the prisoner’s rights within the four partitions of the prison. For
instance in the case of State of Maharashtra v. Prabhakar Pandurang Sangzgiri and
Another156, the Supreme Court held that the detenue has a proper of guide of his books; in
Sheela Barse v. State of Maharashtra157, the Court reiterated the proper to felony resource to
below trial and convicted individuals and issued guidelines for offering rapid and green
154
(1980) 3 SCC 488.
155
AIR 1981 SC 746.
156
AIR 1966 SC 424.
157
(1983) 2 SCC 96.

80
felony help to prisoners in prison and to offer safety to women prisoners in lock-ups to name
a few.
Although the above judgments are real milestones in spotting the rights of the prisoners but
they do now no longer deal with the conjugal rights of the prisoners. It changed into best in
Sunil Batra II that the court observed the trouble of homosexuality or sexual abuse of
underage in prison. But right here additionally the problem of conjugal rights changed into
now no longer raised.
6.3 Statutory Framework
In India, there may be no Statue or Rulebook which discusses or confers conjugal rights to
prisoners. There is no mechanism or scheme for permitting conjugal visits in jails. As a long
way as provisions of parole or furlough are involved, those powers are exercised by the
involved country authorities and there may be no central law to modify it. For instance, in the
country of Punjab the discharge of prisoners on parole and furlough are regulated through the
Punjab Good Conduct Prisoners (Temporary Release) Act, 1962 examine with the Rules
framed there below and the State Policy and Instructions issued by the country authorities for
the discharge of convicts on parole, furlough etc.
Section 3(1) of the Act allows the State Government to launch the prisoners briefly for a
precise duration on parole, if it's miles glad that : (1) a member of the prisoner’s family had
died or is significantly ill; or (b) the wedding of the prisoner’s son or daughter is to be
celebrated; or (c) the brief release of the prisoner is vital for ploughing, sowing or harvesting
or wearing on some other agricultural operation on his land and no pal of the prisoner or a
member of the prisoner’s own circle of relatives is organized to assist him on this behalf in
his absence; or (d) it is ideal to achieve this for some other enough cause. Section 4 of the Act
empowers the State Government to launch prisoners briefly, on ‘furlough’ difficulty to his
exact conduct and the quantum of sentence offered or the character of offence committed.
Section 6 of the Act creates an embargo in opposition to the launch of a prisoner, if it is
probably to endanger the safety of the State or the protection of public order. The Act
additionally prescribes penal effects if the prisoner fails to surrender at the expiry of launch
duration158.
It is pertinent to notice that conjugal rights or visitations are now no longer a floor for launch
of the individual on parole and furlough. The Supreme Court in its numerous choices has said

158
Section 8 of the Punjab Good Conduct Prisoners (Temporary Release) Act, 1962.

81
that parole is a penological innovation to test recidivism and has endorsed the liberal use of
the equal159.
6.4 Judicial Decisions
In the absence of any precise regulation on conjugal rights of prisoners, the prisoners to get
their conjugal rights enforced have knocked the doorways of numerous excessive courts in
current times. In 2012, such an unsuccessful try changed into made in the case of a PIL filed
before the Andhra Pradesh High Court in the case of Ms. G. Bhargava, President M/s.
Gareeb Guide (Voluntary Organisation) v. State of Andhra Pradesh 160
in which a direction
changed into sought to take on the spot steps and permit conjugal visits to spouses of
prisoners in jails throughout the State of Andhra Pradesh. The Court rejected the declare of
the petitioner and located the following: firstly, if conjugal visits are allowed maintaining in
view exact conduct of the prisoners, then probabilities of the surroundings getting disturbed
can't be ruled out because it will have an negative effect on the opposite inmates of the prison
who have now no longer been decided on and prolonged such benefit.
Secondly, Chapter-IV of Andhra Pradesh Prison Rules, 1979 offer for the discharge of
prisoners on furlough/ parole and at some point of this transient launch the prisoners can lead
own circle of relatives lifestyles with their spouses. Thus, High Court denied any centers of
conjugal visits to jails. It additionally mentioned that such an difficulty of allowing conjugal
visits in jails is a coverage rely which falls inside the special area of the state.
Two years later, in 2014 a comparable petition changed into filed earlier than the Punjab and
Haryana High court in the case of Jasvir Singh and Another v. State of Punjab 161. The
statistics of the case had been that the petitioners had been husband and spouse. They had
been prosecuted and convicted for kidnapping and murdering a 16 year vintage minor for
ransom. The trial court offered dying sentence which changed into showed via way of means
of the High Court. The Supreme Court also upheld the conviction. However, the dying
sentence of spouse changed into commuted into lifestyles imprisonment. Both had been
lodged in the equal prison in separate cells.
The couple had were given stuck in the criminal case inside eight months in their marriage. In
the example case, they demanded that a command should be issued to the prison government
to permit them to live collectively and resume their conjugal proper for the sake of progeny.
The petitioners claimed that their call for changed into now no longer for non-public sexual
159
See the case of Suresh Chandra vs. State of Gujarat, 1976 CriLJ 1890. Also see Krishan Lal vs. State of Bihar
1976 Cri LJ 854.
160
PIL No. 251 of 2012 decided on 16th July, 2012.
161
2015 Cri LJ 2282.

82
gratification and as a consequence they had been open for synthetic insemination
additionally.
The case concerned essential questions of regulation regarding conjugal rights of the
prisoners. Therefore, the court additionally appointed an amicus curae in the relay. The
middle problems in the case had been
(i) whether or not the proper to procreation survives incarceration, and if so, whether or not
this type of proper is traceable inside our Constitutional framework?
(ii) Whether penological hobby of the State lets in or must allow advent of centers for the
workout of right to procreation at some point of incarceration?
(iii) Whether ‘right to lifestyles’ and ‘non-public liberty’ assured under Article 21 of the
Constitution consist of the right of convicts or prison inmates to have conjugal visits or
synthetic insemination (in alternate)? And
(iv) If query No. (iii) is replied withinside the affirmative, whether or not all classes of
convicts are entitled to such rights?
The plea of the petitioners changed into adverse by the state of Punjab and the daddy of the
minor sufferer who changed into abducted and murdered for ransom. The primary factor
superior via way of means of the kingdom for opposing the petition changed into that the
proper to procreation does now no longer locate any point out in the Rulebook or Statutes.
They contended that there has been no provision for ‘conjugal visitation’ under the Prisons
Act, 1894 and the Punjab Jail Manual. There changed into no provision withinside the stated
Acts for synthetic insemination additionally.
Moreover, Section 27 of the Prisons Act, 1894 mandates proper segregation of male and
woman prisoners162.
The important arguments placed forth with the aid of using the amicus curie had been firstly,
the Principles enshrined in the Constitution are of widest amplitude and had been deliberately
left open ended so that the courts aren't shackled by the restricted interpretation. Secondly, he
contended that the right to procreation can't be denied simply due to the fact any such proper
does now no longer locate any mention in the Rule-books or Statutes. In the absence of any
such right having been spelt out in a codified-regulation, it can't be assumed that the

162
Section 27(2) of the Prisons Act, 1894 states ‘separation of prisoners’:
The requisitions of this Act with respect to the separation of prisoners are as follow:
(1) XXX XXX XXX
(2) in a prison where male prisoners under the age of twenty-one are confined, means shall be provided for
separating them altogether from the other prisoners and for separating those of them who have arrived at the age
of puberty from those who have not;
(3) un-convicted criminal prisoners shall be kept apart from convicted criminal prisoner

83
petitioners’ prayer contravenes any regulation. The denial of the right to procreate
consequently is claimed to be unreasonable, arbitrary as any such proper now no longer being
violative of any rule or regulation, its denial quantities to be a immense violation of Article
21 of the Constitution. Thirdly, he canvassed that the ‘right to existence’ consists of right to
‘create existence’ and ‘procreate’ and this essential right does now no longer get suspended
while someone is installed prison. There isn't anyt any provision, express or implied, in any
penal regulation or charter that takes away the prisoners right to first rate existence which
squarely falls inside Article 21 of the Constitution. He argued that even though husband has
been sentenced to death, however his ‘right to existence’ can't be taken away until his
execution. Fourthly, he submitted that court has ample powers below writ jurisdiction to put
into effect essential rights and therefore, it can direct the jail government to allow conjugal
visits for the only cause of procreation in the instant case.
After giving careful listening to to the events and the amicus curae appointed in the matter,
the court replied the questions as follows. The Court replied the primary query in affirmative
and held that the right to procreation survives incarceration. And any such right is traceable
and squarely falls within the ambit of Article 21 of our Constitution study with the Universal
Declaration of Human Rights.
As regard to second query the court held that the penological hobby of the State need to allow
the introduction of centers for the exercising of proper to procreation during incarceration as
there may be no inherent war among the proper to procreate and incarceration. However, the
identical is situation to affordable restrictions, social order and protection concerns. The court
held that the centers can be made to be had in a phased manner.
Answering the third query, the court held that ‘right to life’ and ‘non-public liberty’ assured
below Article 21 of the Constitution consist of the right of convicts or prison inmates to have
conjugal visits or synthetic insemination (in alternate). However, the court changed into
aware of the intricacies involved and held that exercising of such rights are to be regulated
with the aid of using technique mounted with the aid of using regulation and is the only
prerogative of the State.
As regards, availability of right to all prisoners the court held that basically all convicts are
entitled to the proper to procreation at the same time as incarcerated, except fairly classified.
The Court left it to the kingdom to border coverage for affordable class because the proper
isn't an absolute right and is situation to the penological pursuits of the State.

84
The Court in this situation issued guidelines to the State of Punjab to represent a Jail Reforms
Committee to formulate a scheme for introduction of an surroundings for conjugal visits in
prison. The courtroom docket additionally ordered that till the difficulty is addressed
effectively with the aid of using the state, the provisions referring to parole or furlough ought
to be used and shall deal with the conjugal visits of a married and eligible convict as one of
the legitimate and enough floor for the cause of his/her transient launch on parole or furlough
though situation to all the ones situations as are prescribed below the Statute.
However, in this situation, the declare of the petitioners changed into denied particularly at
the floor that the offence devoted with the aid of using them changed into grave in nature.
Moreover, each had been convicted and the justification of ‘harmless spouse’ does now no
longer keep any floor in this situation. Along with this, the Court held that the existing
infrastructure and universal surroundings do now no longer support emergent measures.
6.5 Promiment Cases Of Conjugal Rights In India
6.5.1 Jasvir Singh and Ors v. State of Punjab and Ors
Summary of Facts
The petitioners, husband and wife, had been attempted for the offences under Section 302,
364A, 201 and120-B of the Indian Penal Code, for kidnapping and brutally murdering a 16
year antique minor for ransom. The trial court presented them demise sentence. The
honourable Supreme Court disregarded their criminal enchantment but commuted the demise
sentence to life imprisonment for the wife. The petitioners then sought enforcement in their
perceived right to have conjugal life and procreate in the prison premises. They looked for a
course to take delivery of to the prison government to permit them to live collectively and
resume their conjugal lifestyles for the sake of progeny and make all preparations wanted on
this regard. They had been additionally open to “artificial insemination”.
Issues Involved
The pivot of the controversy rests on Article 21 of the Constitution of India. The „right to
lifestyles‟, as contended has critical ingredients, namely, (i) maintenance of cell; and (ii) the
propagation of species of which conjugation is a critical part. In State of Andhra Pradesh v.
Chalaram Krishna Reddy163, it was held that a prisoner in spite of incarceration as a convict
or under trial maintains to experience certain essential rights which consist of the proper to
life. Equally great is the global perspective at the right to conjugal life in the precincts of
prison”, which too requires discussion. The petitioner’s competition turned into antagonistic

163
Chalaram Krishna Reddy, (2000) 5 S.C.C. 712.

85
with the aid of using the State of Punjab, basically at the plea that the Prisons Act, 1894
consists of no provision to allow “conjugal visitation” Section 27 of the Act rather mandates
right segregation of male and female prisoners.
The opportunity answer of synthetic insemination‟ turned into additionally taken into
consideration redundant as in step with the affidavit dated November 20, 2010 there existed
no such provision in the Prisons Act, 1894 or in the Punjab Jail Manual to permit the convicts
(husband and wife) to be within identical cell in the prison or to permit for synthetic
insemination164.
Judicial Decision
1. Right to procreation survives incarceration. Such a right is traceable and squarely falls in
the ambit of Article 21 of the Constitution examine with the Universal Declaration of Human
Rights, 1948.
2. The penological interest of the State need to allow the advent of centers for the exercising
of right to procreation at some point of incarceration, can be in a phased manner, as there is
no inherent war among the right to procreate and incarceration. However, the identical is
situation to reasonable restrictions, social order and safety concerns.
3. The „right to lifestyles‟ and „personal liberty‟ assured under Article 21 of the Constitution
consist of the right of convicts or prison inmates to have conjugal visits or synthetic
insemination (in alternate). However, the exercising of those rights is to be regulated by
process established with the aid of using law and is the sole prerogative of the State.
4. Ordinarily, all convicts, until fairly classified, are entitled to the right to procreation at the
same time as incarcerated. Such a right, however, is to be regulated as in step with the policy
set up with the aid of using the nation which might also additionally deny the identical to a
class or class of convicts, because the aforesaid proper isn't an absolute right and is situation
to the penological hobbies of the State.
5. Finally, the status quo of a Jail Reforms Committee turned into ordered with the intention
to advise techniques to implement „conjugal visitation‟ in prisons and additionally advise any
reasonable category that needs to be taken into consideration at the same time as granting
such rights to the prisoners.
6.5.2 P. Muthumari V. The Home Secretary (Prison)
Case Fact:

164
Jasvir Singh and Ors v. State of Punjab and Ors, 2015 (1) R.C.R. (Criminal) 509.

86
Perumal became arrested in 2008 through Manoor police, Tirunelveli. In 2010, An Additional
Court convicted him and sentenced him to life imprisonment. Initially, he was lodged in
palayamkottai jail then transferred to Vellore Central Prison after which to Cuddalore Central
Prison. Perumal Married Muthumari on May 2, 2018, while he was on parole.
Ratio Decidendi:
1. The Madras High court said that The Madurai Bench of this court in Mehraj Vs The State
and others discovered that, eleven Man is a social animal. He desires a own circle of relatives
in addition to a society to stay in. The man wishes each to share his feelings and feelings.
Being Human Beings, the prisoners additionally would love to proportion their issues with
their lifestyles associate in addition to with society. Just because they may be termed as
prisoners, their proper to dignity can not be deprived.
2. Conjugal visits result in sturdy own circle of relatives bonds and hold the own circle of
relatives useful as opposed to the own circle of relatives turning into dysfunctional.
3. India has determined the reformative theory, because it says that humans to be reformed
could emerge as a efficient member of society. If this is to be executed prisons should be
converted as houses for the motive of giving education morally in addition to intellectually in
order that the prisoners are denuded of the traits of the criminal
4. The psychologist and psychiatrist accept as true with that the frustration, tension, the
unwell feelings, and the heart-burnings may be decreased and humans may be higher
construed if they may be allowed conjugal relationship even rarely.
5. Being in settlement with the observations herein, they taken into consideration it as
suitable to grant leave for two weeks to petitioner’s husband for conjugal visitation to his
home. The Petitioners husband needs to be escorted through the prison government and he's
certain to comply with the situations imposed through the prison government.
6.5 3 Public Interest Litigation Seeking Conjugal Visit For Prisoner
The petition claims that the conjugal visit rights aren't supplied through Tihar Jail
Authorities, Delhi bringing up the maximum of the prisoners fall under the sexually energetic
age institution among 21 to 50 years. On February 28, 2019, the 16 jails in Delhi prisons had
15,733 inmates. This consists of 3105 convicts, 12,136 undertrials, 13 detenues except others.
Out of the complete population, 7,921 are in the age institution of 21 to 30 years, 5809 in the
age institution of 30 to 50 years and one zero one falls under the age institution of 50 to 65
years.

87
1. The Public Interest Litigation has been filed in Delhi High Court in search of conjugal visit
in Tihar Jail. On May 2019, the Delhi High Court issued a note to the Director-General
(Prison) over a PIL in search of conjugal rights for prisoners.
2. The petition gave note to Tihar Jail government to make preparations to offer conjugal
visits to the prisoners lodged there.
3. The Chief Justice discovered that it entails very touchy and thrilling issue, so, therefore,
issued a note to Delhi Government to record their reaction inside four weeks and slated the
problem for August 2, 2019.
The PIL additionally sought to scrap, segment 608 of Delhi Prison Rule, 2018which states
that “assembly to take location in the presence of jail officer” mainly in a situation while the
prisoner is assembly their spouse.
6.6 Law In Other Jurisdictions
6.6.1 United States Of America
In USA, federal prisons do now no longer permit conjugal visitations. However, many states
permit conjugal visitation applications. These visitations are problem to a number of
regulations which are furnished with the aid of using the involved nation. Conjugal visitation
privileges in this group date again to 1918, even though many penitentiary personnel consider
this system has been in life due to the fact the group turned into first opened in 1900165.
Earlier, the software turned into open most effective for black inmates most effective
however in a while it turned into prolonged to all prisoners. The conjugal visitation program
withinside the Mississippi were given advanced with time and turned into by no means
formally installed with the aid of using regulation. The visits take area each weeks and can
remaining for up to three days. Prisoners and their households are taken to the cottages placed
at the jail grounds, which are ready with beds and tables166. In addition to conjugal visitation,
the jail government additionally use this system of domestic furloughs.
Various different states in USA additionally have applications for conjugal visitations167. For
example, in the nation of California the first conjugal go to program turned into instituted in
1968 and has been accelerated due to the fact then. The inmates in California are allowed to
have visits with their children, spouses, siblings and parents in modular houses placed at the

165
Michael Braswell and Donald A. Cabana, “Conjugal Visitation and Furlough Programs for Offenders in
Mississippi”, New England Journal of Prison Law, Vol. 67, No. 2, 1975, pp. 67-72, at p. 67.
166
Christopher Hensley et al, Conjugal Visitation Programs: The Logical Conclusion: From Prison Sex: Practice
and Policy, 2002, pp. 143- 156, at p.144.
167
Carolyn Simpson, “Conjugal Visiting in United States Prisons”, Columbia Human Rights Law Review, Vol.
10, 978-79, pp. 643-671, at p. 662.

88
jail grounds168. Similarly, conjugal visitation applications also are available in New York169,
New Mexico, Washington and Connecticut. However, the applications in New Mexico170 and
Mississippi had been closed.
On synthetic insemination: The United States Court of Appeal, Ninth Circuit, in the case of
William Gerber v. Rodney Hickmen 171
denied the declare of petitioner for permitting him to
offer a sperm to his spouse for synthetic insemination. In this case the husband turned into
imprisoned for a sentence to a hundred years to lifestyles plus eleven years. He desired a
toddler and no date turned into set for his parole because of lengthy sentence. Therefore, he
claimed that he ought to be allowed for offering a sperm to his spouse for synthetic
insemination and denial of this kind of declare would quantity to violation of his
constitutional right172. The Court of Appeals with a majority of 6-5 held that
(i) many components of marriage that make it a simple civil right, including cohabitation,
sexual intercourse, and the bearing and rearing of kids, are outmoded with the aid of using the
truth of confinement and
(ii) prisoners have no Constitutional right even as incarcerated to touch visits or conjugal
visits. The Court similarly determined that preserving in view the character and dreams of a
jail device, it'd be a wholly extraordinary studying of the Constitution to command the
warden to deal with Gerber’s request to artificially inseminate his spouse as a matter of right.
6.6.2 Europe
In Europe, conjugal rights of visitation and synthetic insemination are claimed on the idea of
European Convention on Human Rights. The Convention ensures proper to appreciate for
privacy or gamily life in addition to the proper to marriage. Article eight of the Convention
offers that everybody has a right to appreciate for his non-public life, his family life and his
domestic and that there will be no interference with the aid of using a public authority with
the workout of that right, store according with regulation or as vital in a democracy for sure
named purposes (which consist of public safety, fitness or morals). Article 12 of the
Convention offers that a prisoner of marriageable age has a proper to marry and to observed a
own circle of relatives consistent with countrywide laws governing the workout of the right.
168
Rachel Wyatt, “Male Rape in U.S. Prisons: Are Conjugal Visits the Answer”, Case Western Reserve Journal
of International Law, Vol. 37, Issue 2, 2006, pp. 579-614, at p. 600.
169
Bonnie E. Carlson, “Inmates and their Families: Conjugal Visits, Family Contact and Family Functioning”,
Criminal Justice and Behavior, Vol. 18, No. 3, 1991, pp. 318-331, at p. 319.
170
New Mexico to eliminate conjugal visits for prisoners, 16 April 2014 available at
http://www.reuters.com/article/us-usa-prisons-newmexicoidUSBREA3F21220140416
171
291 F. 3d 617 (2002)
172
Brenda V. Smith, “Analyzing Prison Sex: Reconciling Self-Expression with Safety”, Human Rights Brief,
Vol. 13, Issue 3, 2006, pp. 17-22, at p. 18.

89
All parties of Council of Europe are member to this Convention and are under an duty to
make provisions according with the Convention. In accordance with it, many states in Europe
allow conjugal visits of prisoners. For example, conjugal visits are allowed in Spain, France,
Sweden and Denmark to call a few173. The Spanish jail device gives prisoners get admission
to to conjugal visits on a month-to-month foundation and prisoners can invite participants in
their households in addition to close friends174. Swedish prisons permit inmates to have visits
with family individuals that could remaining for as much as nine hours175.
It is pertinent to be aware that the European Court of Human Rights has now no longer but
interpreted the Convention as requiring Contracting States to make provisions for such
visits.176And that is a place wherein the Contracting states experience wide margin and it's far
for the states to look that what steps are taken to make certain compliance with the
convention.
On synthetic insemination: The European Court of Human Rights withinside the case of
Dickson v. the United Kingdom 177
has denied permission of synthetic insemination to
prisoners. The petitioners in this example had been husband and spouse and each had been
incarcerated. They sought permission for get admission to to synthetic insemination and
depended on Article eight and 12 of European Convention on Human Rights. Their
application turned into grew to become down with the aid of using the Secretary of State in
addition to with the aid of using the High Court. The European Court of Human Rights
additionally grew to become down their application and determined that extra than half of the
states have provisions for conjugal visits. In this kind of scenario, there has been no want of
obviating the government to offer extra centers for synthetic insemination.
The Supreme Court of Judicature in United Kingdom in the case of R v. Secretary of State for
Home Department178 additionally denied the declare of a prisoner for synthetic insemination.
The Court held that the refusal to allow the appellant the centers to offer semen for synthetic
insemination of his spouse became neither in breach of the Convention nor illegal or
irrational. The Court culled out 3 motives for sustenance of the policy that restricts the
availability of centers for synthetic insemination.

173
Rachel Wyatt, “Male Rape in U.S. Prisons: Are Conjugal Visits the Answer”, Case Western Reserve Journal
of International Law, Vol. 37, Issue 2, 2006, pp. 579-614, at p.602.
174
Dirk Van Zyl Smit, Frieder Dunker (eds.), Imprisonment Today and Tomorrow: International Perspective on
Prison Rights and Prison Conditions, Kluwer Law International, Hague, 2001, at p. 612.
175
Ibid, at p. 635.
176
Jasvir Singh vs. State of Punjab 2015 Cri LJ 2282 (2293).
177
Application No. 44362/04 decided on 4th December, 2007 by European Court of Human Rights.
178
[2001] EWCA Civ 472.

90
Firstly, it's far an specific outcome of incarceration that prisoners ought to now no longer
have the possibility to beget kids even as serving their sentences besides while they are
allowed to take transient leave; secondly, there is probability of a critical and justified public
problem if prisoners maintain to have the possibility to conceive kids even as serving
sentences; and thirdly, there are negative aspects of unmarried parent households.

CHAPTER VII
CONCLUSION AND SUGGESTIONS
“India is rising, Conjugal aspect is an incidence of change, It can be brought in, But the
saints of the Indian law making paternity, Need a lot to seek from the constitution, The
nation awaits a change again…. The fundamental rights of a prisoner cannot be bid off at
one instance… ” “It is said that no one truly knows a nation until one has been inside it’s
jails. A nation should not be judged by how it treats its highest citizens, but its lowest
ones.”
- Nelson Mandela

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India strongly desires the implementation of Conjugal rights for its prisoners. India is the
world's biggest democracy. It has unfastened elections, a multi-celebration parliamentary
device, a various and outspoken free press, an impartial judiciary and the us of a abounds
with non-governmental agencies that take pleasure of their independence, a lot of these
realities assist to make up a lively civil society.
Yet if the tests and balances of democracy are meant to govern authorities lawlessness, then it
offers the affect that some thing has long past incorrect in India, very incorrect. Too
regularly, absolutely everyone unfortunate sufficient to be arrested faces a much extra chance
of torture, or worse, on the fingers of the police than in many nations totally missing
withinside the safety for civil liberties to be had in India. The Indian ought to consequently
see the want to invite this vital question, ―What is the implementation of those civil liberties
doing, in different words, is there any fruit from it? or are they simply intended to make India
seem like a greater ―present day country‖ whilst on the identical time the us of a
nevertheless appears to be plunged in barbarianism wherein this problem is concerned?
Like in the case of Mathura rape case, the police officers aren't accountable, which does now
no longer appearance precise at all, women like Bhanwari Devi and Vishaka face device
anomalies and hence in spite of each written on a sheet of papers advert reviews are forms,
matters are baseless, whilst implementation is ready at an insignificant paper work and not
anything is at a zero degree undertaking frame. But to such floor zero instances, conjugal
proper in opposition to brings a lower back log.
Based at the proof supplied on this literature, it may be mentioned and agreed to via way of
means of the reader that the jail device in India isn't one to be spoken properly of.
This is how it may be summed up right here as one can not change something from this
studies work, however what is available in right here is the fact in the back of the bars. A
prison go to became eyes huge open, in such instances researchers and builders like Aryeh
Neier and Roth man, additionally can not take any such initiative.
Now right here…allow us to inch-within side the real jail fame in India. Although jail
structures everywhere are marked via way of means of inertia, few can in shape India's
immutability of practice. A country which over 40 years in the past get rid of British rule
nevertheless administers its device under the colonial Prisons Act of 1894. Perhaps due to the
fact the act is any such relic of the past, or possibly due to the fact jail officers decide upon
the course of least accountability, the diverse country jail manuals that encompass the 1894
provisions are collectors' items, now no longer handiest in quick deliver however expensive.

92
A range of jail commissions have tried to replace and revise the code, however other than
some states, those efforts have now no longer obtained legislative approval.
The Bible stays the 1894 text. It isn't handiest the policies and rules however the day-to-day
fact of India's prisons this is so archaic. In reality, the jail sanction (which in the west grew
apace with modernization) has now no longer completed centrality inside India; incarceration
might be now no longer greater widespread now than it become under British rule.
Numbers regularly supply a fake experience of precision in India -- "supply or take some
million," is a common and procreate qualifier to any estimate -- however they do delineate
the limits of the jail world. The maximum prestigious and thorough research of the prisons,
the All-India Committee on Jail Reform 179(under the chairmanship of the retired Supreme
Court justice, Anand Mulla), determined 1220 centers in the us of a as of December 31, 1980,
of which 822 (67 percentage) had been lock-ups, and nearly all the others, country prisons;
collectively they held some 160,000 inmates. The Indian states appear to differ a remarkable
deal of their record-preserving abilities and are notoriously lazy approximately responding to
inquiries from country wide commissions. Yet, although the parent had been off by a element
of or three, India could nevertheless have one of the lowest fees of incarceration in the world.
(The United States, with the best recognised rate, has much less than one-third of India's
population, and incarcerates greater than six instances as many people as had been actually
counted in the Indian device a decade ago.) This end is buttressed via way of means of the
reality that with all due allowance for overcrowding, India does now no longer have the jail
homes to keep that many greater inmates.
Moreover, the general lengths of jail remains are pretty quick (once more by American
standards). Of the 160,000 inmates ten years in the past, 92 had been beneath Neath trials,
and their durations of confinement at the same time as they awaited their flip in court, had
been nearly continually much less than a year (ninety two percentage). Were their rights in
any way protected?
Third, and possibly maximum important, the criminal device, as we've seen, is based
drastically on precis justice. To the amount that police (or soldiers) beat or kill putative
offenders, imprisonment turns into a superfluous sanction. If the numbers of inmates is low,
it's due to the fact punishment is regularly meted out in hard and geared up fashion. As one
could then expect, prisoners are drawn from the bottom classes, and certainly the bottom

179
Bureau of Police Research & Devlopment, Ministry of Home Affairs, ―All India Jail Reforms Committee‖,
Vol. 1 AINPS 207 (2003).

93
castes, despite the fact that contemporary surveys normally do now no longer consist of caste
on their questionnaires.
The All India Committee180 determined that a majority of the inmates got here from the
"underprivileged sections of society," noting that "people who've method and affect normally
manipulate to stay past the attain of the regulation although they're concerned in violation of
the regulation. The figures compiled by different investigations verify this affect: one take a
look at in the country of Uttar Pradesh (a relatively backward location besides for the region
round New Delhi), said that sixty three percentage of prisoners had been low income
(incomes much less than eighty rupees, or much less than U.S. $five a month); handiest 15
percentage earned over 335 rupees or approximately U.S. $20 a month. Fifty percent of the
UP inmates had been illiterate; most effective 10 percentage had over 10 years of schooling.
The endurance and import of the grading with the aid of using caste and sophistication is
testimony now no longer simplest to India's past however to its present. The class gadget is
altogether functional, serving and abetting the authority -- and the corruption -- of jail
administrators. Tradition and comfort healthy nicely together. The legitimate guidelines offer
that kingdom officers classify the inmates, however the real authority devolves right all the
way down to the jail Administrators. To dispense the grade and designate privilege
immediately enlarges their control over the jail population, and complements their ability to
trade favours for favours. Given the outstanding disparity in situations of confinement,
inmates with assets are absolutely organized to pay regardless of the going charge is for an A
or B status, and even though difficult proof of such pay-offs isn't clean to return back with the
aid of using, nearly each pupil of Indian prisons, whether or not interior or outdoor the
system, is of the same opinion that such corruption is rampant.
Even with out payoffs, the assets of a prisoner are anticipated to play an vital position in
figuring out class as indicated in the language of the directive that "social status" or "habit of
the life‖ has made the prisoner "acquainted with a advanced mode of living." Also prisoners
with assets can rent private recommend who will dedicate themselves to seeing to it that their
clients are accorded such privileged status.
In reality, of course, prisoners, especially the bad and the illiterate ones, seldom get such
meals as allotted to them below the Jail Code due to "nicely organized" and "systematic"
corruption in our prisons. Barun Sengupta, a well-known journalist of Calcutta, who spent
greater than eight months in a few jails in West Bengal as a MISA detenu for the duration of

180
Ibid.

94
Emergency of 1975-77, gave a genuine narrative as to how a massive amount of the
prisoners' allocated meals was once stolen by the corrupt jail officers. According to him,
there are or 3 degrees in which bulk of the prisoners' meals is stolen. At the preliminary stage,
the prisoners are disadvantaged of a significant component of their allocated weight loss
program which by no means enters the prisons even as its cash fee is shared with the aid of
using the tenderers and the better government of jail control in terms in their underhand
mutual agreements. At the subsequent stage, part of that enters the jail compound is stolen
from the Godown as nicely as the kitchen. The stability is then cooked or organized from
which a few similarly amount is again stolen on the time of real distribution to the inmates.
Suggestion : An Indian Percepective
In a multidimensional society like India, there exist different nations inside one. We have our
personal traditions, customs, social values, apprehensions and anathemas. When we have
interaction ourselves in instructional and highbrow debates on problems such as “gay-rights”
and the popularity of “third-gender”, we will neither keep away from nor can cover under our
ethical cover withinside the practical factor of conjugal visitation.
It is excessive time that the stake holders take a seat down collectively to planned upon the
legislative or government coverage regime and suggest modifications maintaining in view of
the futuristic priorities closer to countrywide cohesion. The truth that desires to be mentioned
is that inmates do now no longer lose their sexuality as soon as they may be imprisoned and
regulating these interactions forms an important a part of what the correctional branch need to
do.
An opposite intervention in such interactions will now no longer most effective make sure the
protection of the inmates and group of workers with regard to incidents of sexual violence,
however additionally help in the consciousness of correctional desires and rehabilitation of
inmates in proper terms. Much paintings nonetheless stays to be accomplished to define a
attainable and humane method in improving possibilities for inmate’s sexual expression.
This is handiest an preliminary step in that direction. It is unreasonable to assume that
prisoners take a look at their sexuality at the jail gate. To deny conjugal go to is subjecting
harmless family contributors to punishment. It invitations endured unrest. Allowing conjugal
visitations will make the ones concrete partitions an awful lot extra rehabilitative, much less
irritating and a bit extra humane. Conjugal visitation isn’t any surprise drug and is certainly
now no longer supposed to be, however it can be a proper of which prisoners are wrongfully

95
disadvantaged of as a result in their incarceration; a proper that need to be restored with none
similarly delay.
In India, the jurisprudence at the idea of conjugal rights is nevertheless in its infancy. The
proper to conjugal visits and procreation is a thing of the proper to stay with dignity and is for
that reason ingrained in the proper to life and liberty assured below Article 21 of our
Constitution. The conjugal rights of prisoners are vital and time has come while all of the
stakeholders ought to take a seat down and planned on the issue. Some of the
recommendations are:
 The provisions of parole and furlough ought to be used liberally via way of means of the
country that allows you to make certain that prisoners can set up members of the family with
their families.
 The idea of permitting conjugal visits in jails calls for a detailed, cautious and systematic
study. The High Court of Punjab and Haryana additionally identified that troubles like
permitting conjugal visits in jails basically fall inside the realm of coverage makers and it's
far for them to conform an powerful mechanism for enforcing it. The Court in this case
issued guidelines to the country authorities to constitute a Jails Reforms Committee to
formulate a scheme for permitting conjugal and own circle of relatives visits for jails. Such a
Jail Reforms Committee ought to be formulated on the earliest.
 The Committee ought to become aware of the kinds of inmates entitled to such visits,
centers required for facilitating such visits and manner of visitation.
 The scheme ought to be followed in a phased manner beginning from the Model Jails.
 The country ought to allocate assets for production of centers for conjugal visitations.
 Research ought to be carried out withinside the region to peer the effectiveness of conjugal
visitations in addition to parole or furlough at the conduct of the prisoners.
 The proper to procreate through synthetic insemination as a complement ought to be
regarded as an alternative. However, in view of constrained assets to be had with the country
the country shall to start with consciousness on growing centers for conjugal visitation in jails
and this technique need to be part of long time period planning.
Rooting over the above chapters on conjugal visits, now, if we have been to abolish the
treatment, what next? A member of the Indian Parliament as soon as cautioned that the
treatment for restitution is probably substituted with the aid of using reconciliation 181. R. K.
Agarwala in her article has generic this view.

181
Mrs.Renu Chakravarthy, Lok Sabha Debates, pt.2, session 9th 1955, vol 4, p.7625.

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The tone in restitution appears to be pretty harsh and compelling. The petitioner is looking
the unwilling respondent to cohabit; this could similarly become worse the connection than
make it up. The tone of reconciliation is extra slight and requesting. If the treatment is
reconciliation then it is probably inoffensive and won't best cause cohabitation however also
clears the misunderstanding.
R.K Agarwala182 has provided in her article the manner we are able to genuinely result in
reconciliation:
The Court is probably authorized to rent a committee for reconciliation which include the
judge himself, the spouses and one or of the spouse and children or buddies decided on in
keeping with the selection of the spouses on every side.
The Court ought to now no longer take a seat down as a Court to sentence or adjudge
however as a conciliator.
If the committee fails in its purpose, however it feels that reconciliation is probably attained
thru the assist or guidance of an expert, e.g. psychiatrist it would take such assist.
The manner ought to be termed as counselling. The failure of this manner ought to now no
longer bar the declare for maintenance.
Further, the failure of such counselling want now no longer be taken into consideration as a
floor for divorce.
The concept of reconciliation is a great one; right here are a few proposed adjustments to the
suggestions made with the aid of using R.K Agarwala. Instead of the judge, sitting as one of
the committee members, allow a few eminent folks of the society do the job, because the
characteristic of the Court is to settle disputes now no longer reconciliation.
Let Courts not be actively worried in the process of reconciliation however allow the
committee formed be a semi-unbiased committee to the volume that it's far appointed and
supervised with the aid of using the Court. The possibilities of reconciliation are more
wherein there's private intervention and persuasion as opposed to the intervention of the
courts. If the committee fails in the counselling even after taking expert‘s assist allow this be
regarded as failure of the wedding and be dealt with as a floor for divorce. If now no longer
dealt with as a ground for divorce then the events will go back to Courts and the entire
manner of counselling might be a trifling mockery.

182
Raj Kumari Agarawala, ―Restitution of Conjugal Rights: A Plea for the Abolition of the Remedy, J.I.L.I.
256,1970; Paras Dewan, Modern Hindu Law, 166(1985).

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 Reconciliation tried in divorce instances has proved satisfactory, and beneficial in keeping
with a socio-prison data examine made in Poland183. Perhaps, the Courts will keep in mind
this as a higher answer because it might be much less burdensome at the Courts, given that no
bulky manner might be worried. Reconciliation is fast, powerful and realistic option to
restitution of conjugal rights. Perhaps it's far the best answer to place an cease to this
barbarous treatment. India can carry smooth idea of healing or right and liberty in the
country.
Conjugal proper is no damage to nation; all we require is any other eye vision, to inspect the
matter. Well, given that graduation we had nation re-organization, quota device, Nalini, the
Rajiv Gandhi assassinator were given hitched to imprisonment for life, Mr. Kasab, the fear
become given demise sentence, then such a lot of traits withinside the jail device so far, so
many reforms at a more platform can take place, with reference to that once India requires
reformation of the jail, human frame thoughts and soul wishes a set of smart verses and blood
calls.
Imagine, what can those adjustments do to the jail lifestyles of a prisoners, frequently we pay
attention stories approximately them being engaged into portray writing, there's no denial that
such matters are a medium of escape, to every body it would display as an hidden
characteristic of a prisoner, however medium of escapes is no refuge, a bit interplay with the
ladies of his impulse, with the own circle of relatives of his small isle could make masses of
innings. Women prisoners, to may be granted the same, but there is lots to examine of their
case. And conjugal visits, sell those blood calls, they name for efforts, India requires a
extrade of dignity for those prisoners.

183
Jan Gorecki, ―Divorce in Poland—A Socio-Legal Study,‖ published in Sociology of Law 109-111 (Vilhelm
Auburted 1969).

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Bibliography

Books

 Indian Prison Laws and Correction of Prisoners By Nitai Roy Chowdhury · 2002
 Human Rights of Detainees and Prison Reforms (India) By K. D. Gaur · 1987

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  Homel, R. & Thomson, C. (2005). Causes and prevention of violence in prisons.
 In Sean O’Toole & Simon Eyland (Eds.), Corrections criminology (pp. 101-108).
 Bapat, S. “Kautilya’s Views on Punishment in Dharamasastra and Social Awareness,
by V.N. Jha (ed.), Indian Books Centre, Delhi, 1996.
 Bansal, V.K., Right to Life and Personal Liberty in India, Deep and Deep
Publications, New Delhi, 2010.
 Prison Laws In India: A socio-legal study by Mudasir A. Bhat.
 Taft, Donalt R. and R.W. England, Criminology, The Macmillian Company, London,
4 th Ed. 1969.

Articles

 Sydney: Hawkins Press. Juliet (2013). Prisons and Rehabilitation, Scientific Writing
and Publishing in Social Work, ISBN: 978-81-923326-2-8, NIRUTA Publication,
Mangalore. Mathew P.D. (2006).
 Diaz, S.M. : “Thought on Prison Reforms in India” , Indian Jr. of Criminology, Vol. 6
No. 2, July 1978, p-79.
 Avasthi, A.K. : “Police Atrocities, Custodial Violence Plight of Prisoners and Human
Rights”, Law Review, Vol. 21& 22, 2001, p-15.

Journals

 The Rights of Prisoners, Indian Social Institute, New Delhi, Legal Education Series
No. 50. Rick Lines. (2008).
 The Right to Health of Prisoners in International Human Rights Law, International
Journal of Prisoner Health, 4(1):3-53
 Agrahari, Gunjan: “Under Trial Prisoners and the Criminal Jurisprudence: An
Evaluation of Indian Problems”, Allahabad Law Journal, Vol. 102, July 2004, p-62.
 Prisoners’ Conjugal Visitation Rights in India: Changing Perspectives Anamica
Singh* and Anupal Dasgupta*, Christ University Law Journal, 4, 2 (2015), 73-88

Statutes

The Statutes, Laws and Rules relating to the Prison Administration and treatment of Prisoners
like:

 Constitution of India
 Indian Penal Code

100
  Criminal Procedure Code
 Evidence Act
 Prisons Act Prisoners Act , 1984
 Immoral Traffic (Prevention) Act
 Borstal Schools Act
 Juvenile Justice Act
 Probation of Offenders Act
 Model Prison Manual (Central)
 The International Covenants On Civil And Political Rights, 1966
 The Prisoners Act, 1990
 Section 9 of the Hindu Marriage Act, 1955
 After the Marriage Laws (Amendment) Act, 1976
 Delhi Prisons Act, 2000
  Law Reform (Miscellaneous Provisions) Act, 1949.

Dictionaries:
 Bryan A. Garner (ed.), Black Law Dictionary (17th edn., 1999)
 Concise Oxford English Dictionary, (8th edn.)

Newspapers:
 Indian Express
 The Hindu
 The Times of India
 The Tribune
Websites

 http://www.legalservicesindia.com/article/1616/Role-of-Judiciary-in-Protecting-
the-Rights-of-Prisoners.html

 https://shodhganga.inflibnet.ac.in/bitstream/10603/46512/12/12_chapter%204.pdf

 https://timesofindia.indiatimes.com/blogs/lawtics/prisoners-rights-in-india/
 https://legodesk.com/legopedia/rights-of-prisoners-in-india
 https://legaldesire.com/rights-prisoners-indian-law
 www.indiankanoon.com

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 www.Manupatralegalsearch.com
 www.google.com
 www.ibanet.org
 www.thehindu.com
 www.articles.economictimes.indiatimes.com
 www.manipurtimes.com
 www.wikipedia.com
 www.online.wsj.com
 www.parting.hpage.co.in
 www.lawyersclubindia.com
 www.supremecourt.nic.in
 www.highcourt.gov.in
 www.punjabgov.in
 www.bprd.com
 www.mississipi.com
 www.prisonlaw.com
 www.hg.org
 www.delhi.gov.in
 www.legaltrigger.com

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