Now jailbirds to build nests behind the bars but are the branches strong enough?
The Punjab and Haryana High Court has allowed the jailbirds to have sex in jails and thereby have families but the idea does not look very much feasible for the women prisoners. The biggest question in front of the jail authorities in Punjab will be how to get ready to prepare labour rooms and crèches and cradles in the jail premises?
The latest debate in the corridors of courtrooms and Human Rights commission is about the landmark judgement, in which the bench of Justice Surya Kant has issued orders to the Punjab and Haryana governments and the Chandigarh administration to constitute jail reforms committees to develop a scheme for establishing an environment for conjugal visits for prison inmates.
A retired High Court Judge would head the committee. To provide multiple views and insights to the committee, a social scientist, a jail reformation expert among others would be added to it.
The judgement has come in response to an important question whether or not prisoners should have a right to a conjugal life and procreation within the jail premises and whether such right comes under Article 21 of the Constitution? Giving verdict in a case, Jasvir Singh & Anr vs. State of Punjab and Ors, the court observed that Article 21 effectively covers the right to procreate through artificial insemination which is also part of Right to life for prison inmates who are however to be regulated by the procedures established by law.
Justice Surya Kant wrote in the judgement, the reform committee shall also evaluate options of expanding the scope and reach of ‘open prisons’, where certain categories of the convicts and their families can stay together for longer periods and recommend necessary infrastructure for actualizing the same.
Though undisputedly a path breaking judgment, it doesn’t come without its fair share of complications. The bench of Justice Surya Kant came just halfway. The right to conjugal life for prisoners technically includes both the male and female prisoners. The ideal situation is when a male prisoner performs conjugal activity with his wife who is not in prison and delivers the child at home where every minute aspect of pregnancy is taken care of. But when a female prisoner is pregnant in jail, it would be the jail authority’s duty to provide her the best available heath care facilities. Naturally, the female prisoner will also be entitled to certain rights while pregnant in prison and when the child is born.
Giving speaking orders in a case, RD Upadhyay vs. State of Andhra Pradesh and others, Supreme Court of India had ordered to provide facilities for women prisoners who are accompanied by children. The court had directed that the child should not be treated as an under trial or a convict. Such a child is entitled to food, shelter, education, health and recreational facilities. In case of pregnancy, strict guidelines were also given by the Supreme Court to make arrangements for the safe delivery outside the jail.
The High Court bench has failed to observe the consequences of the verdict of the judgement as it failed to provide any specific guidelines for female prisoners. They will be able to enjoy their right to conjugal life only when appropriate arrangements are made for their healthcare. The applicability of the judgement on women prisoners is unclear and raises more questions than it answers. It’s not surprising that the verdict, shrouded in many doubts as it is, follows the male-centric model of prison system that has made the life of women in Jails vulnerable.
According to the National Crime Record Bureau, in the 1391 jails in India, women population was 4.41 percent (18,188) of the total prison population which was 411991 by the end of 2013. Out of 18,188 women prisoners, only 18.6 percent (3,396) are imprisoned in 19 women jails across the nation. 1933 women prisoners in India have their children with them.
Social activist and Ramon Magsaysay Award winner retired IPS officer, Kiran Bedi opposing the judgement, said “with respect to the high court, the Punjab government should appeal against it and get a stay. When a person is in prison, he/she is denied to certain rights like right to liberty and has access to certain rights only as a prisoner. Conjugal relation is something that a prisoner is denied of and it cannot be allowed in any case as prison is a highly public place. It is not their home.”
She raised questions on the judgement by saying that “the right to procreate is going to make the situation extremely messy as there is no clarity on who all have the access to this right. If it is for married couples will it be a right for couples in live in relationships? Will it be a right for those who have more than one wife?”
The pioneer of jail reforms in India further said that “this is absolutely not a step towards jail reform as reform comes from the soul, not the body. We need to have a little more debate on this as it is a very important social issue and challenge it in the apex court.”
National secretary of AIPWA – All India Progressive Women’s Association, Kavita Krishnan, sees the judgement as a step in the right direction as it will open a new chapter in the concept of ‘open prisons’. She adds, “Once this judgement is implemented across the country, it will benefit majority of prisoners, who will be able to access their right to have a family. But the problem here is the oppressive environment in Indian prisons. This judgement will be enjoyed fully only when the prison system is made more sensitive towards female prisoners and their children. The condition of women in Tihar, which is touted as the best jail in the country is questionable as women prisoners are beaten up and not even allowed to agitate there so we can imagine the state of other jails in this country.”
The advocate for the petitioners in Jasvir Singh & Anr vs. State of Punjab and Ors case, Gurpriya Kaur Mann is not very pleased as her clients did not get any relief, but she hails the judgement as one that should arrived long back. Like Krishnan she adds, “the court has not given any concrete guidelines as to how it will apply to the women prisoners. It is now at the discretion of the respective jail authorities and the reform committee what reforms they bring in for women prisoners.
The renowned Palestenian poet Mahmoud Darwish once wrote: a person can only be born in one place. However, he may die several times elsewhere: in the exiles and prisons, and in a homeland transformed by the occupation and oppression into a nightmare.
The right to conjugal life given to the prisoners brings a ray of hope for those jailbirds who are singing the song of despair. But how this will pan out for the fair sex remains to be seen.