INTRODUCTION-
The Right to Life is enshrined as a Fundamental Right under Article 21 of the Indian Constitution which covers the arena of protection of human life and liberty. It states that “no person shall be deprived of his life or personal liberty except according to the procedure established by law.” It guarantees the Right to life and personal liberty to every person, which cannot be violated even by the State except when stipulated by the law to prevent encroachment on and the loss of life.
In India, the Right to life has been granted a very broad connotation. As per Judicial interpretations, the Right to life, does not merely refer to the act of breathing, but it also includes the right to live with dignity, right to health, right to livelihood, right to privacy, and other similar rights. Thus, it has also been called the “Procedural Magna Carta protective of life and liberty” by Justice Iyer.
NAND LAL Vs. STATE, DEPT. OF HOME, RAJASTHAN-
Recently, the Rajasthan High Court, in the writ petition of Nand Lal versus State, Dept. of Home, Rajasthan, a question regarding a woman’s Right to Pregnancy arose and whether or not it is covered under the ambit of Article 21 became the burning issue. The matter arose as Nand Lal, a convict had undergone imprisonment of about six years out of his sentence of life imprisonment that was awarded to him and his conduct was also well in the jail premises. His wife, Smt. Rekha, filed a writ petition through him in regards to Nand Lal seeking emergent parole for a period of 15 days, on the ground of Progeny as they did not have any child from their wedlock.
The Right of Progeny can be performed through marriage which also has the effect of normalizing the convict and also helps to alter the behavior of the prisoner. The purpose of parole is to let the convict re-enter the mainstream of society peacefully after his release. The wife of the prisoner has been deprived of her right to have progeny whilst she has not committed any offense and is not under any punishment. Thus, denial to the prisoner to perform conjugal relationship with his wife more particularly for the purpose of pregnancy would adversely affect the rights of his wife.
RIGHT TO PREGENANCY UNDER RIGHT TO LIFE-
The apex court in the case of D. Bhuvan Mohan Patnaik and Others v. State of Andhra Pradesh and Others, 1974, declared that convicts cannot be denied the protection of fundamental rights which they otherwise possess, merely because of their conviction.
In the landmark case of Justice K.S. Puttaswamy versus Union of India 2017, the constitutional right of women to make reproductive choices, as a part of personal liberty under Article 21 of the Indian Constitution was recognized.
The Supreme Court in Suchita Srivastava and Another v Chandigarh Administration stated that reproductive autonomy is a dimension of personal liberty as guaranteed under Article 21. It held that it is important to recognize that reproductive choices and these can be exercised to procreate as well as to abstain from procreating.
In Nand Lal’s case, his wife, Smt. Rekha, the innocent spouse of the convict is deprived of her need for physical intimacy. In view of the fact that the spouse of the prisoner is innocent and her sexual and emotional needs associated with marital lives are affected and in order to protect the same, the prisoner ought to have been awarded a cohabitation period with his spouse.
Thus, viewing from any angle, it can safely be concluded that the right or wish to have progeny is available to a prisoner as well subject to the peculiar facts and circumstances of each case. Simultaneously, it is also found apposite to hold that the spouse of the convict-prisoner cannot be deprived of his or her right to get progeny.
FUNDAMENTAL ASPECT OF LIFE-
According to Broinslaw Malinowski, who is known as the father of social anthropology, “Marriage is a contract for the production and maintenance of children”. If we see this matter in the light of religion; as per Hindu philosophy, Garbhadhan, that is, attaining the wealth of the womb is the first of the sixteen sacraments. The cultural mandate given to Adam and Eve includes the sentence “Be fruitful and multiply and fill the Earth.” The Cairo declaration of human rights in Islam also supports the protection of lineage in Islam. The first main objective of Maqasid I Shariah is the completion of a human’s necessity; in which protection of progeny (al-Nasl) is the foremost purpose. Thus, according to all religions and cultures , Right to Procreate is one of the fundamentals of life.
JASVIR SINGH’S CASE-
In the case of Jasvir Singh and Another v. State of Punjab, 2015, the case involved important questions of law regarding the marital rights of the prisoners. Here, the petitioners were husband and wife who were tried for the offense of kidnapping and brutally murdering a minor child for ransom. The petitioners then sought enforcement of their right to have a married life and procreate within jail premises.
The core issues in the case were -
1. Whether the right to procreation survives during imprisonment?
The Court held that the right to procreation survives during incarceration. Such a right is traceable and falls within the ambit of Article 21 of our Constitution read with the Universal Declaration of Human Rights.
2. Whether the state permits the creation of facilities for progeny during such period?
The Court held that the creation of such facilities and infrastructure can be done by the State in a phased manner, however it will be subject to reasonable restrictions, social order, and security concerns.
3. Whether ‘right to life’ and ‘personal liberty’ guaranteed under Article 21 of the Constitution include the right of convicts or jail inmates to have conjugal visits?
‘Right to life and ‘personal liberty guaranteed under Article 21 of the Constitution include the right of convicts or jail inmates to have conjugal visits or artificial insemination. However, the exercise of these rights is to be regulated by the procedure established by law and are under the sole authority of the State.
The Court had also directed the Punjab government to constitute a Jail Reforms Committee which would formulate a scheme for the creation of an environment for conjugal and family visits for jail inmates and identify the categories of inmates entitled to such visits, keeping in mind the beneficial nature and reformatory goals of such facilities.
PROGRESSIVE REFORMS BY THE SUPREME COURT-
The Supreme Court has been extremely progressive on women's reproductive rights.
The Supreme Court of India unanimously held that Section 377 of the Indian Penal Code, 1860, which criminalized ‘carnal intercourse against the order of nature’, was unconstitutional in so far as it criminalized consensual sexual conduct between adults of the same sex. The petition, filed by dancer Navtej Singh Johar, challenged Section 377 of the Penal Code on the ground that it violated the constitutional rights to privacy, freedom of expression, equality, human dignity and protection from discrimination. The Court reasoned that discrimination on the basis of sexual orientation was violative of the right to equality, that criminalizing consensual sex between adults in private was violative of the right to privacy, that sexual orientation forms an inherent part of self-identity and denying the same would be violative of the right to life, and that fundamental rights cannot be denied on the ground that they only affect a minuscule section of the population.
By decriminalizing adultery in Joseph Shine versus Union of India, 2018 and homosexuality in the landmark judgment of Navtej Singh Johar versus the Union of India , 2018 ,the court has held clearly, that women have a right to sexual autonomy, which is an important facet of their right to personal liberty.
In the case of Justice K.S. Puttaswamy versus Union of India, 2017, the court specifically recognized the Constitutional right of women to make reproductive choices, as a part of personal liberty under Article 21 of the Indian Constitution.
In the case of Independent Thought v. Union of India, 2017 in the context of reproductive rights of girls Supreme Court held, that the human rights of a girl child are very much alive and kicking whether she is married or not and deserve recognition and acceptance.
These judgments have an important bearing on the sexual and reproductive rights of women.
A NEW TREND-
There has been a spike in the number of applications and petitions wherein the reason given for bail or parole is similar to that of Nand Lal’s case. But, as there is no such provision in the parole rules for conceiving pregnancy, the matters have come to a standstill. In this view, the Government of India has filed a Special leave petition in the apex court of the country.
SUGGESTIONS-
There is no provision in the state’s parole rules to release a convict for conceiving or causing pregnancy. An amendment needs to be brought to this effect so that a proper procedure can be established for smooth functioning.
Proper schemes should be introduced for the care of the mother and the child to ensure that the family of the convict has a comfortable living.
Children of incarcerated parents face all kinds of hardships, especially, financially, and thus a Financial Support program should also be run for these kids by the government. These schemes will help the child and the family of the convict lead a comfortable life.
With the Right to Pregnancy being such a vital and fundamental right, the need of the hour is a linear and uniform approach towards governs pregnancy and surrogacy laws in the country.
While on the subject of Progeny, India also needs to regulate and form uniform laws on Adoption, wherein there should be proper checks on the welfare of the child , even after adoption.
NAND LAL’S CASE JUDGMENT-
Although there is no express provision in the Rajasthan Prisoners Release On Parole Rules, 2021 for releasing any prisoner on parole on the ground of his wife to have progeny; yet considering the religious philosophies, cultural, sociological and humanitarian aspects, coupled with the fundamental right guaranteed by the Constitution of India , the Court has held these grounds to be just and proper.
CONCLUSION-
One of the purposes of marriage is to procreate and to carry forward the lineage of the family. The Constitution guarantees every individual the Right to Life and the Right to Equality under Article 21 and Article 14 respectively. Every person has the Right to health, Right to live with dignity, Right to Privacy and the Right to Progeny. An individual has the right to get pregnant, by her choice. The denial of the married relationship of the convict for any purpose may amount to the denial of the fundamental right guaranteed under Article 21 of the Constitution of India. The judiciary has clearly held that a convict cannot be deprived of his fundamental rights. Thus, the fundamental rights enshrined in the Constitution are for law abiders as well as the law violators. The Right to Pregnancy is a Fundamental Right and must be exercised. Everybody has a Right to Family.
Bibliography:
Cases-
1. Nand Lal vs. State, Dept. of Home, Rajasthan, 1987 (2) WLN 868.
2. D. Bhuvan Mohan Patnaik and Others vs. State of Andhra Pradesh and Others, 1974 AIR 2092.
3. Justice K.S. Puttaswamy vs. Union of India, (2017) 10 SCC 1.
4. Suchita Srivastava and Another vs. Chandigarh Administration, (2009) 14 SCR 989.
5. Jasvir Singh and Another vs. State of Punjab, 2015 C.W.P. No. 5429 of 2010 (O&M).
6. Navtej Singh Johar vs. the Union of India, AIR 2018 SC 4321.
7. Joseph Shine vs. Union of India, 2018 SC 1676.
8. Independent Thought v. Union of India, 2017, WRIT PETITION (CIVIL) NO. 382 OF 2013.
Statutes-
9. Article 21 in The Constitution Of India 1949.
10. Article 14 in The Indian Constitution 1949.
11. Section 377 in The Indian Penal Code.
12. Rajasthan Prisoners Release On Parole Rules, 2021.
Written By,
Nidhi Bhandari,
Intern, Chanchlani Law World
Comments