REITERATION OF AN UNASSERTED FUNDAMENTAL RIGHT OF A PRISONER- PROGENY AS A GROUND TO GRANT PAROLE

In a recent writ petition filed for a parole on the ground of want of progeny, the Rajasthan High Court reiterated and asserted that parole for want of progeny for a prisoner or his spouse squarely falls under Article 21 of the Constitution and within the ambit of conjugal rights of prisoners.

In Nand Lal v. State, a writ petition was filed under Rule 11 (1)(iii) of the Rajasthan Prisoners Release on Parole Rules, 2021 by a convict prisoner through his wife on the grounds which is not covered under the provisions i.e. want of progeny. Petitioner’s husband is serving an award of life imprisonment from around six years in Central Jail, Ajmer. Petitioner is residing at matrimonial house with in-laws since imprisonment of her husband. She moved an application before District Collector, District Parole Committee for emergent 15 days parole pending the application a writ petition was filed before the high court. The main issue at case was whether emergent parole can be granted on ground of progeny. The Division Bench presided by J. Sandeep Mehta and Farjand Ali upheld the ground withholding the ruling that “right to procreation survives during incarceration” and “is traceable and falls within the ambit of Article 21 of the Constitution”.

The Court observed that Progeny helps convict prisoner to normalize and positively affect the behavior thereby fulfilling the main purpose of granting parole. It is also submitted by petitioner that there is no issue out of their wedlock and hadn’t begotten the marriage. After receiving reports on the conduct of prisoner, background and his relationship with petitioner, an emergent parole for 15 days was granted with two personal surety bonds subject to terms and conditions of jail authority. It noted the religious aspect of Garbhadhan, preservation of lineage in Islam, Christianity, Judaism and Other Abrahamic religions. Court also noted the sociological aspect of right of prisoner to perform four Purusharths of life (Dharma, Artha, Kama and Moksha), pitrarin (parental debt) and their inter-connection with fundamental rights of prisoners under Article 21 of the Constitution. It emphasized on the rights of petitioner who is an innocent woman deprived of rights without any mistake. It stated that the marital and sexual life of petitioner is associated with the convict-prisoner and individual religious, social expectations can’t be hampered.

Utilizing extra ordinary power of the court and considering multi-dimensional aspects on progeny in conjunction with fundamental rights of prisoners enshrined under Constitution, the Rajasthan High Court asserted new ground to parole and a new perspective to the prisoner’s conjugal rights jurisprudence. Finally, it asserted that even prisoners have right or wish to avail progeny based on facts and circumstance of each case. From the judgment it can be deducted that progeny falls within conjugal rights of prisoners and forms part of fundamental rights of prisoners. However, the conduct of prisoner and facts of each case should be taken into consideration. The pronouncement can be ear-marked for parole petitions.

Authored by: Anushkaa Arora, Senior Panel Counsel, U.O.I, Principal & Founder, ABA Law Office.
Assisted by: Navya Prathipati, Research Trainee,Damodaram Sanjivayya National law University (DSNLU), ABA Law Office