PREFACE
It is really most reassuring and most refreshing to note that while upholding the fundamental right of prisoners to procreation and parenthood, the Delhi High Court in a most learned, laudable, landmark and latest judgment titled Kundan Singh vs The State Govt of NCT Delhi in W.P.(Crl.) 2700/2023 that was reserved on 19.12.2023 and then finally pronounced on 22.12.2023 has minced just no words in no uncertain terms that right to procreation and parenthood is a fundamental right of a convict and protected under Article 21 of the Constitution.
It must be noted that the Single Judge Bench comprising of Hon’ble Ms Swarana Kanta Sharma clarified that this right is not absolute but depends on the context and by considering factors such as the prisoner’s parental status and age, a fair and just approach must be adopted to preserve the delicate equilibrium between individual rights and broader societal considerations. The Bench was dealing with a plea that was filed by Kundan Singh serving life sentence for murder. After spending 14 years in jail, Singh had approached the Court stating that he is 41-years-old and his wife is 38. They do not have a child and want to protect their lineage by way of procreating.
INTRODUCTION
At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon’ble Ms Swarana Kanta Sharma sets the ball in motion by first and foremost putting forth in para 1 that:
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.
As we see, the Bench then stipulates in para 2 that:
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.
As things stands, the Bench then lays bare in para 3 stating that:
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
To put things in perspective, the Bench envisages in para 4 that:
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.
Do note, the Bench notes in para 5 that:
As disclosed from the petition, the petitioner has already spent more than 14 years in prison, excluding the period of remission.
It is worth noting that the Bench notes in para 6 that:
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.
ANALYSIS AND FINDINGS
Needless to say, the Bench states in para 11 that:
The present case reveals that the convict i.e. the petitioner herein has been convicted and has been incarcerated for last about 14 years. He is about 41 years of age, whereas his wife is 38 years of age.
- Right to Procreate Covered Within the Ambit of Article 21 of Indian Constitution
Most commendably, the Bench propounds in para 13 that:
This Court is of the opinion that Article 21 of the Constitution of India, which guarantees the fundamental right to life and personal liberty is not completely obliterated by a person’s incarceration. Though, the human right of personal liberty of convict has to be surrendered in favour of the safety of the State and for the purpose of establishing rule of law, the convict cannot be denied the protection of fundamental right to life, which is expansive, and in this Court’s opinion, will also include right to have a child, in peculiar facts and circumstances of a case. While a constitutional Court has to ensure rule of law, it also has to ensure social justice.
It is worth paying attention that the Bench observes in para 14 that:
The Delhi Prison Rules, 2018, do not find mention of procreation of children and parenthood as a ground for grant of parole. However, in this Court’s opinion, if the rules do not provide for a particular specific ground, it cannot bar a Constitutional Court to go beyond the specific mention of a ground and can, in the facts and circumstances of a case, interpret and adjudicate a prayer before it by referring to the intent and content of the Rules and the practical context in which they need to be interpreted.
It cannot be glossed over that the Bench then expounds in para 15 stating that, In this regard, in the factual context of the present case and cases of similar nature, this Court holds that where the age of the convict and the biological clock of the convict and his marital partner has the potential of becoming a barrier for them to conceive and procreation of a child in future as a result of long incarceration of a convict, their prayer will need to be attended and adjudicated with empathy, though within the parameters of law.
It would be pertinent to note that the Bench then points out in para 16 that, Though parole can be granted to maintain social ties, which is a larger concept, the ground for grant of parole for the reason as in the present case cannot be considered less important. The accused is aged about 41 years, whereas his wife is about 38 years of age, who have been married for last three years. The accused has been in judicial custody for the last 15 years, and was married while he was granted parole/furlough. The concern of the convict and his wife seems to be genuine that their age and the biological clock cannot wait for the period of incarceration to be over. The convict and his wife need medical assistance to have a child and for the same the convict also needs to undergo certain diagnostic tests.
Quite rightly, the Bench holds in para 17 that:
This Court is of the opinion that a constitutional Court is duty bound to ensure that fundamental right of every citizen is upheld and is not violated. The definition of a citizen will include even a convict. A convict does not become a lesser citizen only due to his incarceration and his fundamental rights are of equal importance and have to be given equal weightage as any other free citizen.
It cannot be lost sight of that the Bench then observes in para 18 that:
This Court is also of the opinion that it is human tendency and a natural desire for an individual to have biological children which can be for the purpose of adding value or meaning to their lives. It also can be for the purpose of ensuring a family lineage and saving their family tree. Therefore, seeking parole for the purpose of having children, when the biological clock of the convict and his wife are moving in the opposite direction, so as to become a barrier after a few years for the purpose of having a child, should not be considered as if it is for the purpose of conjugal relations or for any other fulfillment, but to ensure the right to procreation.
To be sure, the Bench then underscores in para 19 stating that:
In the present case, the prayer for parole for the purpose of procreation, with medical assistance, due to the age of the convict, who has been in jail when he was about 25 years of age, and is now about 41 years of age and the standpoint of the convict and his wife in this regard needs to be taken note of. This Court is of the view that it is a personal choice and fundamental right of an individual, though a convict, and his wife who is a free citizen to have a child together for protecting and saving their lineage which must be respected by a Court of law. People make different choices in different situations and not everyone may feel the same way about they being incomplete without giving birth to a child and even that point of view is respected by the Courts.
Quite commendably, the Bench postulates in para 20 stating that:
The majesty of the law lies in its capacity to understand, respect and embrace within the parameters of law, different point of views and through the prism of rule of law, pass orders which will grant relief to anyone who approaches the Court without being judgmental. Further, in this Court’s opinion, the definition of fundamental rights and its expansion cannot be caged in narrow formulas of black and white letters and its duty and beauty lies in interpreting it with broader point of view as the faith of the common man in the judicial system is on the broad shoulders of Courts of law of Bharat.
Resultantly, the Bench then observes in para 21 that:
In backdrop of this observation, this Court has no hesitation to hold that right to life under Article 21 of the Constitution of India will include right of a convict to have a child when he is not blessed with a biological child by being extended the relief of grant of parole for this purpose where he needs medical assistance and the biological clock due to his age may weaken and make prospects of having a child bleak.
Further, the Bench hastens to add in para 22 stating that:
The Courts have to be sensitive while dealing with cases of such nature and about prayers, made by this age group of the convicts and ensure that severe breach of human rights and their intrinsic value is not committed by denying them the right to parenthood by passing mechanical orders and denying them parole on this ground by taking a narrow approach and holding that the statute in black and white does not specifically provide for this ground for grant of parole.
No doubt, the Bench rightly maintains in para 23 that:
Further, delay in having a biological child would mean curtailing this fundamental right to parenthood, due to incarceration of a convict. The right to procreate, in this Court’s opinion survives despite incarceration, in certain set of facts and circumstances of a given case, as the present one.
Most significantly, the Bench mandates in para 24 that:
While, Judiciary in Bharat, has always stubbornly refused to hold that prisoners have no fundamental rights, this Court following the same tradition as handed over by judges of the Hon’ble Apex Court and this Court respectfully takes the intent to interpret the constitutional rights in favour of upholding and including new situations and challenges holds that right to parenthood and procreation is fundamental right of a convict in peculiar circumstances of a case. Needless to say, the same have to be adjudged on the basis of facts and circumstances of each case.
Adding more, the Bench states in para 25 that:
Furthermore, the judicial decisions have to be a fine and delicate combination of upholding the fundamental right of the convict in a given circumstance without loosing sight of realities of life and legitimate human desires and thus, in the process upholding the view that prisoners are humans too.
Furthermore, the Bench bluntly states in para 26 that:
In this Court’s opinion, the fundamental right to have a child in the present circumstances, where the convict and his wife need medical assistance due to their age and the same being considered as human right of the convict, cannot be deemed to be surrendered in favour of the State as right of freedom and liberty which have to be surrendered in favour of the State, once a person is convicted.
Most remarkably, the Bench then propounds in para 27 that:
When the other parameters for grant of parole as per law are available to the convict, this Court would be duty bound to exercise its extraordinary jurisdiction and ensure that the incarceration of the convict would not act as a barrier between the fundamental right to procreate a child with assistance of medical procedures, due to the advancing age of the convict, while the Court ensures the right of the State to confine the convict to the jail, for the purpose of maintaining rule of law and security of the State and its citizens.
Briefly stated, the Bench states in para 28 that:
To conclude, while passing orders such as for grant of parole, for procreation purpose, where medical assistance is required due to advanced age of convict, when they do not have a biological child and the accused is in custody for a long period, the Courts have to note that the facts represented pass the test regarding prisoners’ fundamental right to parenthood and procreation and his reasonable expectation as a social being.
What’s more, the Bench observes in para 29 that:
While this Court recognizes that while being convicted and being imprisoned, it would certainly limit many aspects of a married life and grant of parole has to be subjected to reasonable restrictions and compelling State interest, the same will have to be balanced as per law.
As a note of caution, the Bench suggests in para 30 that:
The Courts also have to consider the impact of denying parole to the convict for the purpose as prayed for and as to how it will impact his future life in the light of the principle that punishment after conviction is not to punish but to reform.
More to the point, the Bench specifies in para 31 stating that:
The petitioner, in this case has demonstrated the reason which entitles him to grant of parole for the legitimate right of procreation and parenthood with medical assistance, due to advanced age of the petitioner and his wife.
It merits mentioning that the Bench notes in para 32 that:
This Court notes that no major punishment has been meted out to the present convict in the last about two years, i.e. the last punishment was meted out to him on 05.01.2022, which shows that the convict herein, is trying to reform himself after his marriage, which is a factor worth taking note of.
For clarity, the Bench clarifies in para 33 that:
This Court clarifies that this Court is not dealing with prayer for grant of parole for the purpose of maintaining conjugal relationship and conjugal rights while being imprisoned in the present order, or allowing conjugal visits. This Court is dealing with the fundamental right of a convict, to undergo treatment required, to have a child while being granted parole on this ground itself, within the parameters of law and rules governing the grant of parole under the Delhi Prisons Rules, 2018.
Most sagaciously, the Bench holds in para 34 that:
In this Court’s opinion, justice cannot be artificial but real as reality of human life, and has to adjudicate cases keeping in mind the same. This Court also notes that the right to procreation is generally taken for granted when one is a free citizen. However, it becomes valuable and cherished right while one is incarcerated and is dependent on a parole order for the purpose of procreation and parenthood. When this Court engages itself with this consideration in mind, this Court reaches only one decision, that the prayer to be released on parole for the purpose of medically-assisted procreation is an understandable reasonable desire and the convict is entitled to parole on this ground.
- The Right To Procreate While Being Incarcerated Is Not An Irrefutable Right
Still more, the Bench states in para 35 that:
At the same time, it may be added that in all cases the desire to procreate may not amount to being basis of it becoming an irrefutable right, for example, considering that the prisoner already has children or is not in the advanced years of age.
While taking a balanced and nuanced stand, the Bench underscores in para 36 that:
The right to procreation is not absolute and necessitates a contextual examination. By taking into account factors such as the prisoner's parental status and age, a fair and just approach can be adopted to preserve the delicate equilibrium between individual rights and broader societal considerations. It is essential to recognize that the right to procreate is inherently linked to the notion that every individual has the right to extend their lineage. However, this right is not without its nuances, and its exercise is subject to various considerations. If the inmate already has children, this dynamic aspect of the right may be considered fulfilled.
Conclusion
Quite sagaciously, the Bench clearly states in para 37 that:
In conclusion, this Court recognizes that the plea for parole to facilitate medically-assisted procreation, due to the advanced age of the convict and his wife, is grounded in a genuine desire to protect and preserve their lineage. In doing so, the Court affirms that even a convict does not forfeit their fundamental rights and remains entitled to equal consideration before the law.
As a corollary, the Bench then directs and stipulates in para 38 that:
Thus, in view of the foregoing discussion, this Court is inclined to grant parole to the petitioner for a period of four (04) weeks, subject to following conditions:
- The petitioner shall furnish a personal bond in the sum of Rs.20,000/- with one surety of the like amount, to the satisfaction of the Jail Superintendent.
- The petitioner shall not leave District Nainital, Uttarakhand except to travel to and from Central Jail, Mandoli, Delhi, without permission of the court and shall ordinarily reside at the address mentioned in this application;
- The petitioner will report on every Wednesday to the SHO P.S. Kathgodam, District Nainital, Uttarakhand between 11 am and 11:30 am for marking his appearance. However the petitioner will not be kept waiting for longer than one hour at the police station during such visits;
- The petitioner shall furnish a telephone/mobile number to the Jail Superintendent as well as SHO of local police station, on which he can he contacted if required. The said telephone number shall be kept active and operational at all the times by the petitioner.
- If the petitioner has a passport, he shall also surrender the same to the Jail Superintendent
- Immediately upon the expiry of period of parole, the petitioner shall surrender before the Jail Superintendent.
- The period of parole shall be counted from the day when the petitioner is released from jail.
Not stopping here, the Bench directs in para 40 that:
A copy of this order be sent by the Registry to the concerned Jail Superintendent for information.
Finally, the Bench then concludes by holding in para 41 that:
The judgment be uploaded on the website forthwith.
In sum, we thus see that the Delhi High Court has batted most strongly in favour of the fundamental right of prisoners to procreation and parenthood. But it was also made clear that this right is not absolute and depends on a variety of factors. We thus see that parole was rightly granted to the petitioner.
Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh
