HC Allows Prisoners To Have Sex With Partners, But This ‘Historic’ Judgement Is Regressive

Posted on January 8, 2015 in Society, Specials

By Rahul Sen:

The shocking report that Afzal Guru faced sexual violence in prison came out in the media a few days back; that he was forced to have anal sex with an inmate at Tihar was exposed by a co-accused. This revelation, however, should not shock those who are aware of what happened at the Abu Ghraib prison. These, along with several other reported and unreported incidents go on to show a precarious politics of punishment – deploying ‘penetration’ and sexual abuse as means to torture and ‘discipline’. The various army rapes that take place; the sexual torture of Soni Sori, all are symptomatic of the repressive state apparatus’ adoption of coerced sex as means of punishment.

Credit: Matteo Parrini
Credit: Matteo Parrini

Prison maintains a problematic liaison with sex in general and sexuality in particular. It is a very gender segregated space, and it is often reported that inmates indulge in same sex activities. This is where the ‘sexuality’ aspect comes in; how do we classify it then? Isn’t this enough to testify the fluidity of gender and sexuality? Such questions keep on piling and crowing our minds, the more we think of the question of sex in prison or jail-houses.

On 7th January, 2015, the Punjab and Haryana High Court declared that the inmates are entitled to have sex with their partners, provided they are married and want to have children. Citing Article 21 (right to life and personal liberty) of the constitution, the judges held that conjugal visits or procreation are to be considered as fundamental rights of the inmates. India is one of the 15 countries in the world that permit conjugal visits. Consequently, there have been polar responses in the social media, some lauding the decision while others loathing the judgement. What comes across as interesting is that among the various state machineries that champion compulsory heterosexuality, the prison houses have been their next target. Many people have dubbed this judgement as thoroughly discriminatory and regressive, for it leaves no space for sexual gratification (read as sex for pleasure) and also non-normative sexual desires. However, some have already expressed their reservation by asking why the courts should give license ‘only’ for sexual gratification when others forms of gratifications are also absent in prisons? “An inmate, for instance, if denied conventional pleasure of every sort then why ask only for sexual pleasure?” ask a group of people.

The verdict on all grounds, therefore, seems fallacious. If sex for conjugation is the aim with which the judgement has been passed, then the court has certainly not taken into cognizance the rights of sexual minorities or queer communities who do not fall within the purview of peno-vaginal sex, that renders the whole concept of sex for procreation and sex for pleasure problematic. Categories overlap, blur and conflict with each other, highlighting only the myriad shades of attitudes towards sex, sexuality and desire. This has indeed been a historic judgement; ‘historic’ for reasons more than one: being self-conflictual, regressive, discriminatory, all directed towards promoting compulsory-heterosexuality with the state inventing newer means to regulate and discipline sexual desires, prisons being a microcosm of a macro-cosmic ‘carceral system’ as Foucault would say!

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