NEW DELHI: In a significant and much humane order, the Delhi High Court had said that the right to life includes a convict's right to procreate while allowing a 41-year-old murder convict for a four-week parole to ensure him a child with his wife with certain medical help.
Justice Swarana Kanta Sharma, in the order, said the right to life under Article 21 of the Constitution will include the right of a convict to have a child when he is not blessed with a biological child.
It said that thereby this court has no hesitation in granting the convict parole for four weeks for the purpose where he needs medical assistance and the biological clock due to his age may weaken and make prospects of having a child bleak.
"A convict does not become a lesser citizen only due to his incarceration. The fundamental right to have a child "cannot be deemed to be surrendered in favour of the State. Delay in having a biological child would mean curtailing this fundamental right to parenthood, due to incarceration of a convict. The right to parenthood and procreation is a fundamental right of a convict in peculiar circumstances of a case," the Delhi HC said in its recent order.
It also made it clear that the right to procreate, survives despite incarceration, in a particular set of facts and circumstances of a given case, as the present one.
The court clarified that it had not gone into the issue of adjudicating the case of maintaining conjugal relationships and conjugal rights but the fundamental right of a convict to undergo treatment required to have a child as per the jail rules.
The court considered granting the convict parole, after keeping in view the fact that the petitioner was in prison for the last 14 years and sought parole on the ground that he and his wife wanted to protect their lineage, for which the petitioner would have to undergo certain medical tests in order to have a child through in vitro fertilisation (IVF).
The court ordered that the petitioner be released on parole for a period of four weeks after he furnished a personal bail bond of Rs 20,000 and one surety of the like amount and some other conditions.
It also remarked and pointed out that the judiciary in Bharat has always stubbornly refused to hold that prisoners have no fundamental rights.