Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Del) 5994

IN THE HIGH COURT OF DELHI AT NEW DELHI
Swarana Kanta Sharma, J.
Kundan Singh - Appellant
Versus
The State Govt. of NCT Delhi - Respondent
W.P.(Cr) 2700 of 2023
Decided On : 22-12-2023

Advocates appeared:
Mr. Ashutosh Kaushik, Advocate, for the Petitioner. .
Ms. Rupali Bandhopadhya, ASC for the State with Mr. Abhijeet Kumar, Advocate with SI Karan Pal, PS: Mehrauli.

IMPORTANT POINT
The main legal point established in the judgment is that the right to procreate is a fundamental right of a convict in certain circumstances, and the convict is entitled to parole for medically-assisted procreation due to advanced age. The judgment emphasizes the duty of the judiciary to ensure that fundamental rights of convicts are upheld and not violated, and the need for a fair and just approach to preserve the delicate equilibrium between individual rights and broader societal considerations.

Headnote:
Right to Procreate - Convict's Right to Procreation - Indian Constitution Article 21, Code of Criminal Procedure, 1973 Section 482 - Article 21 of the Constitution of India guarantees the fundamental right to life and personal liberty, which includes the right to have a child in certain circumstances. The court held that the right to procreate is a fundamental right of a convict in peculiar circumstances of a case, and the convict is entitled to parole for medically-assisted procreation due to advanced age. The court emphasized the duty of the judiciary to ensure that fundamental rights of convicts are upheld and not violated, and that the right to parenthood and procreation is a legitimate right of a convict. The court balanced the right of the State to confine the convict with the convict's fundamental right to procreate, and emphasized the need for a fair and just approach to preserve the delicate equilibrium between individual rights and broader societal considerations.
Fact of the Case:
The petitioner, a convict serving a life sentence, sought parole for medically-assisted procreation with his wife due to their advanced age and the petitioner's long incarceration. The parole application was rejected based on the petitioner's unsatisfactory jail conduct and the absence of specific provisions in the Delhi Prison Rules, 2018 for procreation as a ground for parole.
Finding of the Court:
The court found that the right to procreate is a fundamental right of a convict in certain circumstances, and the petitioner's plea for parole to facilitate medically-assisted procreation was grounded in a genuine desire to protect and preserve their lineage. The court affirmed that even a convict does not forfeit their fundamental rights and remains entitled to equal consideration before the law.
Issues: The main issue was whether the convict had a right to procreation and parenthood, and whether the rejection of the parole application was justified based on the petitioner's unsatisfactory jail conduct and the absence of specific provisions in the Delhi Prison Rules, 2018 for procreation as a ground for parole.
Ratio Decidendi: The court held that the right to procreate is a fundamental right of a convict in certain circumstances, and the convict is entitled to parole for medically-assisted procreation due to advanced age. The court emphasized the duty of the judiciary to ensure that fundamental rights of convicts are upheld and not violated, and that the right to parenthood and procreation is a legitimate right of a convict. The court balanced the right of the State to confine the convict with the convict's fundamental right to procreate, and emphasized the need for a fair and just approach to preserve the delicate equilibrium between individual rights and broader societal considerations.
Final Decision: The court granted parole to the petitioner for a period of four weeks, subject to specific conditions, to facilitate medically-assisted procreation due to the advanced age of the convict and his wife.

JUDGMENT

INDEX TO THE JUDGMENT

INTRODUCTION

FACTUAL BACKGROUND

ARGUMENTS ADDRESSED BEFORE THIS COURT

ANALYSIS AND FINDINGS

i. Right to Procreate Covered Within the Ambit of Article 21 of Indian Constitution

ii. The Right To Procreate While Being Incarcerated Is Not An Irrefutable Right

CONCLUSION

Swarana Kanta Sharma, J.

INTRODUCTION

1. The issue before this Court is to adjudicate a crucial question of law as to whether a convict has a right to procreation and parenthood or not. A prayer has been made before this Court that the convict herein whose request for grant of parole has been rejected, be released on parole on the premise that the right to procreation is not a mere desire but an essential aspect of human existence, carrying profound implications for the continuity of familial bonds and the preservation of one's legacy.

2. As the Court grapples with this intricate legal question, it is tasked with determining whether, in the face of a rejected parole application, the preservation of familial lineage through procreation constitutes a compelling enough ground to warrant intervention.

3. Thus, by way of present writ petition under Article 226 of the Constitution of India, read with Section 482 of the Code of Criminal Procedure, 1973 (`Cr.P.C.'), the petitioner seeks issuance of writ in the nature of certiorari for quashing of order dated 08.08.2023, passed by learned Deputy Secretary (Home), Government of NCT of Delhi, and for issuance of writ of mandamus directing the respondent to release the petitioner on parole for a period of 12 weeks.

FACTUAL BACKGROUND

4. Brief facts of the case are that the petitioner is presently confined in Jail No. 8/9, Tihar, New Delhi and is serving life sentence. The petitioner was convicted in case FIR No. 592/2007, registered at Police Station Mehrauli, Delhi, under Sections 302/201/404 of the Indian Penal Code, 1860 (`IPC'), and was awarded rigorous imprisonment for life by the learned Trial Court.

5. As disclosed from the petition, the petitioner has already spent more than 14 years in prison, excluding the period of remission.

6. It is stated that the appeal filed by the petitioner, challenging the judgment of conviction and order on sentence, was dismissed by this Court on 14.11.2015. It is further stated that the wife of the petitioner, vide an application filed on 27.05.2023 had approached the competent authority for grant of parole on the following ground:

"The Petitioner and his wife want to protect their lineage by way of procreating their child in order to secure their family tree."

7. The above-mentioned application was forwarded to the Deputy Secretary, Home Department. The Deputy Secretary, Home Department had dismissed the parole application, on the following grounds:

"1. The convict is not entitled for parole in view of Rule 1210 sub rule (II) of Deihi Prison Rules 2018, which states that: Rule 1210 sub rule (II): "The conduct of the Prisoner who has been awarded major punishment for any prison offence should have been uniformly good for last two years from the date of application and the conduct of Prisoner who has been awarded minor punishment or no punishment for any prison offence in prison should have been uniformly good for last one year from the date of application". In this case, as per nominal roll, said convict has been awarded punishment dated 31.12.2021, 03.01.2022 & 05.01.2022, which are the major punishment in view of Rule 1271 of Delhi Prison Rules, 2018.

2. Further, as per nominal Roll, the overall jail conduct of the above said convict is reported to be unsatisfactory being multiple punishments. The superintendent has also not recommended grant of parole to the above said convict."

ARGUMENTS ADDRESSED BEFORE THIS COURT

8. Learned counsel for the petitioner argues that the petitioner is married for last three years and he and his wife Ms. `X' do not have a child so far. Since the petitioner is aged about 41 years and his wife is aged about 38 years, they want