By Jinendra Parakh:
If a person commits any crime, it does not mean that by committing a crime he/she ceases to be a human being and should be deprived of those aspects of life which constitute human dignity. human beings are social animals and need a family and society to live their life. Every human being is in need of a life partner with whom they can share their feelings, emotions and the physical contact between the two individual cannot be denied. One cannot be happy merely by eating, drinking, putting on clothes and having a house in which to stay. A desire is not merely the desire for food and clothing, though it is primary in some way. There are other insistent desires called Kama, or vital wishes to be fulfilled, which are other pressures exerted by the biological personality, which, too, cannot be ignored, as they are part of oneself.
Those who have lived a totally isolated life, unconnected with human society for a long period, will know the working of this kind of feeling in oneself. Being human, prisoners also have the same feelings as each and every individual in the society have. Basically, there are four theories of punishment- constituting preventive, deterrent, reformative and retributive theory. The concept of reformative theory is best as it says all prisons should be transformed into residences where physical, moral and intellectual training should be given in order to improve the character of criminals. The sexual frustration that dominates almost every interaction in a prison is responsible for a great many of the ills that plague prison life and drive prison culture. Now the question arises, should prisoners be provided in India with conjugal rights? A right that would enable the prisoner to have sexual relationship with their spouse. Let us first critically analyze the Pros and Cons of providing such right
Pros
– The provision of conjugal rights will help the prisoners to be free from isolation and frustration. Moreover, it will help the individual to have a child as successor so that when in future they will be free from prison, they can also lead a good life.
– There are innumerable cases of HIV/AIDS in jails because of sexual intercourse in-between the same gender, so, the death of prisoners due to HIV/AIDS can be reduced. A nationwide health survey in jails has found 80 of Chhattisgarh’s prisoners HIV-positive, out of 13,000-odd tested. The situation is even worse in tihar jail in which out of the 1,709 prisoners tested, 140 tested positive.
– Because many of us (if not most) prefer to punish the criminal rather than rehabilitate him/her, we are opposed to some of these measures, thinking that the prisoner should not be entitled to these privileges, having violated us, without realizing that a reformed prisoner would make a better citizen upon their release.
– It is believed that conjugal visits lead to strong family bonds and keeps families functional.
Every issue raised constitutes pros and cons and same is applicable to providing conjugal rights, so, the various cons of conjugal rights cannot be denied.
Cons
– For an inmate that does not have the right to such visits, they may have a negative attitude toward the prison and those that are allowed the visits.
– Prisoners are not monitored during the visit which is a security problem which allows both inmates and guards to engage in criminal activities.
– . One of the biggest disadvantages is that many women become pregnant during the visit. “Welfare babies” are than born which puts another economic strain on the government to not only pay for their inmate’s baby but also pay to house the inmate.
– Since the court had legalized Live-in relationships, what will be the status of the prisoners who are not married but are in a live in relationship. The question arises that will they be allowed to cohabit with their partner?
Raising problems is good if we come up with an adequate solution. After critically analyzing the problem we come to certain reasonable, logical and rational solution to these problems which ultimately benefit us and our society.
Advocate Anand Grover, appointed amicus curiae (friend of the court) in the case, said, “Whether we like it or not, there is sex in jails. It is an issue which everyone wants to sweep under the carpet“. Justice Majumdar observed, “There may be physical needs. See whether a separate place can be given to a prisoner and his wife for a day or two. The government is spending crores of rupees to curb the AIDS menace in jails. Instead, why don’t you take preventive steps“. Comments from the eminent personalities clearly states that the issue of allowing sex in prison should be taken in consideration immediately. However, there is always a place for positive feedback and the concept applies here too.
Suggestions
– Only prisoners with good conduct should be allowed to have conjugal rights.
– The concept of open jail should be promoted as it would be the best solution where the prisoners are provided vocational training and education . The open jail at Buxar in Bihar ,where at present 74 inmates are staying with their families, Â has been provided with fully furnished one-room set each with a separate kitchen and toilet. There has been no case of any inmate breaking free from the jail in the past five months of its functioning. The idea is to reintegrate the prisoners into the society will be fulfilled through the concept of open jail.
“It is said that no one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens, but its lowest ones.”
― Nelson Mandela