This Article is written by S. Karpagam


Prison is the oldest penal colony known to mankind. The Penal Laws of each country provide for the punishment of persons for the removal of any act described as a crime in that country. Everyone enjoys certain rights because of their status i.e. human rights. In India, the extension of these human rights is provided to all citizens in the form of Fundamental Rights. These basic rights are granted to all citizens (certain rights and non-citizens) including prisoners. Judge Krishna Aiyer in the case of Charles Sobraj v. The Superintendent, Central Jail, Tihar has suggested that “Arrest does not constitute a waiver of basic rights even though, by actual re-examination, the Courts will refuse to accept the full complement of Part III by a free citizen”. Therefore, prisoners will only be deprived of the rights associated with punishment such as the right to travel, etc. And they are free to enjoy all other basic rights. When it comes to prisoners’ rights, ‘The Right to Life and Freedom’ is at an all-time high.

A Bench of Chief Justice R.S. Cauhan and Justice Alok Kumar Verma were listening to an application by an inmate’s wife who was seeking temporary bail for the couple to start a family. His application was marked with Public Interest Litigation (PIL) by prison rules which were heard by the Court. The Court ordered the attorney JS Virk, Amicus Curiae, and the applicant’s attorney, Advocate Shaifali Singh, to inform the Court of the relevant policies in the area.


The prisoner in question was sentenced to 20 years in prison, where he spent seven years. His wife argued that they had only been married for three months and that her husband had been arrested, so they could not start a family.

Right to procreate:

The right to procreate a convicted person falls under the right to life and liberty guaranteed under Article 21 of the Indian Constitution, read a Supreme Court decision on Tuesday, but adds that the state may deny the same to certain categories of prisoners because it is not a complete right. However, it should be regulated in accordance with a policy established by the State which may deny the same in the category or category of prisoners as the above-mentioned right is not a full right and under the interests of the State.

Evolution of conjugal rights for prisoners by Cases:

In the case of Francis Coralie Mulin and the Director, Delhi, the Court held that prisoners have the right to enjoy all the basic rights available to anyone who is free, except those deprived of the reason for their imprisonment. That marriage rights for prisoners were a right granted to prisoners was a matter that was brought before the Court. The answer to this question has changed over the years in a few cases.

Jasvir Singh and anr v. State of Punjab and others

In this case, the petitioners were a couple, guilty of kidnapping and killing a 16-year-old boy for ransom. The couple was sentenced to death by the Supreme Court and their appeal was rejected by the Supreme Court. However, the Apex Court has commuted the woman’s sentence to life imprisonment. Applicants prayed for the enforcement of their social and reproductive rights while incarcerated. They also pleaded that the Court should direct the prison authorities to allow them to live together for reproductive purposes. They also demanded that artificial insemination be an alternative. The main issue involved in this case is whether the ‘right to life’ found among the prisoners includes ‘the right to a joint visit’ and ‘the right to reproduce’. The Punjab and Haryana High Courts have ruled that the birthright is also available to prisoners. This right may be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations. The Court held that only the rights associated with detention will not be granted to prisoners and that as there is no connection between marital rights and imprisonment, prisoners have the right to enjoy those rights, subject to reasonable limits. The Court eventually found that Article 21 found among prisoners included their right to conjugal visit or to implant artificial insemination. And the Court ruled that the exercise of these rights would be in accordance with the Constitution.

Law enforcement officers slowly entered the stadium and helped to improve the conditions of the prisoners. It adheres to the principles of Article 21 in all its stages of operation. It is said that while marital rights promote the right to life for the dignity of prisoners, it is difficult to exercise such rights in India where prisons remain overcrowded and without basic services available to prisoners. In the case of Meharaj v State of Tamil Nadu and the Ors, the trial court rejected the applicant’s application because the letter of the law governing the suspension of the sentences did not explicitly mention the marital rights of prisoners. The argument against union rights is that if such rights were granted, cells could become centers of prostitution. Also, having sexual intercourse between a couple and engaging in sexual intercourse in a cell would be a violation of their privacy.

Observation of the court:

The high court said it would re-examine the rights of the child born in such a state and tag the court’s application that we heard about prison rules. The court noted that such a child would be “deprived of a father” and expressed his intention to examine the rights of the prisoner’s wife. The child seems to have the right to live with the imprisoned father. The question, however, is, can we allow a child to be brought into the world whose upbringing will be difficult because the mother is a single parent… What about the psychological impact on a child who is asked to live without a father figure? Therefore,  the Chief Justice said that the rights of the child need to be violated even if the child is not pregnant and has not been born.


The family center is very much focused on Indian emotions. One of the most important issues raised by supporters is that by granting assembly rights, family ties do not end and remain strong. To maintain a proper detention system, it is important to grant marriage rights to prisoners because it helps to rehabilitate prisoners in line with the Indian code of punishment. The judiciary has played a role model in raising awareness of prisoners’ association rights. The landmark judgment of Jasvir Singh v State of Punjab CWP-4075-2019 has introduced a new aspect of ‘reproductive right’ and ‘right to visit a meeting’ and the right to health. This decision has taken a step forward in the recognition of the rights of prisoners. As they take the lead in the rights of prisoners in the international community, Indian courts are increasingly changing the living conditions of prisoners. The current legal framework that regulates prisoners has no provision for granting marital rights and such remands must be addressed immediately. Examining the benefits and restrictions on the granting of marital rights to prisoners, we conclude that those rights are desideratum.

The case will come up for hearing again on August 31. The court has also directed an amicus curiae and another advocate to advise it on international legal practices on the issue, in places like the US, Canada, Australia and England.


  1. [ Sagun Suryam], [ Uttarakhand High Court to examine prisoners’ right to procreate], [Bar and Bench], [2021]
  2. [Shivangi Prakash], [Uttarakhand HC to examine Prisoner’s Right to Procreate], [Law insider], [2021]

[Raghav Ohri], [Prisoners have Right to Procreate, says Punjab & Haryana High Court], [economic times], [2021]

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