Mr. Surya Kant J.: - The petitioners are husband and wife, respectively. They were tried for an offence under Section 302/364-A/201/120-B IPC for kidnapping and brutally murdering a 16 year old minor for ransom. The trial court awarded them death sentence which was confirmed by this Court. The Hon’ble Supreme Court dismissed their Criminal Appeal No.1396 of 2007 vide order dated January 25, 2010 but commuted the death sentence awarded to petitioner No.2 (wife) into life imprisonment.

2. The petitioners now seek enforcement of their perceived right to have conjugal life and procreate within the jail premises. The issues raised by them are indeed of paramount public importance. Equally significant are the related issues hovering around the concept of ‘reasonable restrictions’ or ‘the extent of suspension of some of the fundamental rights during incarceration’, ‘radical jail reforms’, ‘the status of prisoners as protected citizen’ within the Constitutional framework as well as the ‘international perspective on the right to conjugal life in the precincts of jail’, which too call for discussion.

3. The petitioners are currently lodged in the Central Jail at Patiala in separate cells. They seek a command to the Jail authorities to allow them to stay together and resume their conjugal life for the sake of progeny and make all arrangements needed in this regard. The first petitioner is statedly the only son of his parents and 8 months into their marriage they got caught in the criminal case. The petitioners claim that their demand is not for personal sexual gratification. The petitioners are also open to ‘artificial insemination’.

4. The petitioners’ main plank is Article 21 of the Constitution. The ‘right to life’, they insist, has two essential ingredients, namely, (i) preservation of cell; and (ii) propagation of species of which sex life is a vital part. The decision in State of Andhra Pradesh v. Chalaram Krishna Reddy (2000) 5 SCC 712, is relied upon to urge that a prisoner whether convict, undertrial or a detenue, continues to enjoy the Fundamental Rights including ‘right to life’ which is one of the basic Human Rights. The petitioners also refer to the well regulated concept of ‘conjugal visitations’ successfully implemented in the advanced countries like the USA, Canada, Australia, UK, Brazil, Denmark and Russia etc.

5. The State of Punjab has opposed the petitioners’ prayer essentially on the plea that the Prisons Act, 1894 contains no provision to permit ‘conjugal visitation’; its Section 27 rather mandates proper segregation of male and female prisoners. Para 498 of the Punjab Jail Manual lays down the method for separation of male and female prisoners.

6. Even ‘artificial insemination’ as a viable and alternative solution suggested by the petitioners, is not acceptable to the State of Punjab as according to its affidavit dated 20th November, 2010 “there is no such provision in the Prisons Act, 1894 and Punjab Jail Manual to allow the husband and wife convicts to be in the same cell in the jail or to allow for artificial insemination of the convicts…”.

7. The father of the minor-victim (murdered for ransom by the petitioners) has also joined these proceedings to oppose the petitioners’ prayer. His learned counsel has very ably assisted this Court, putting forth his point of view on an emotional pitch. His insight to the global case law has helped a lot in view formation.

8. Owing to the ramifications, impact and implications of several vital issues of public importance, Sh. Anupam Gupta, Ld.Senior Advocate was requested to assist this Court as an amicus curiae. He has with his usual outstanding legal acumen, portrayed the points in issue on a bigger canvass and reached to all possible decisions, books, articles and research papers across the world which have some bearing on the issues in debate and simplified their meaning and import to render once again unparalleled and impartial assistance of great quality.

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