Rajasthan HC’s judgment on parole for having baby cannot be a precedent: SC

Parole refers to a prisoner’s temporary or permanent release before the end of a sentence on the promise of good behaviour.

A Rajasthan high court judgment letting a convict out on parole to have a baby cannot be cited as a precedent, with the Supreme Court on Monday expressing its reservations against the order, and making it clear that the state government and jail authorities can raise objections if any other convict seeks the same liberty.

A Rajasthan high court judgment letting a convict out on parole to have a baby cannot be cited as a precedent, with the Supreme Court on Monday expressing its reservations against the order (HT File)

Parole refers to a prisoner’s temporary or permanent release before the end of a sentence on the promise of good behaviour. The release is aimed at reintegrating them into society and is considered tool for the prisoner’s social rehabilitation. In India, each state has its own parole guidelines. Parole cannot be sought as a matter of right.

“We have some reservations against some of the observations made in the high court order. However, we are not inclined to interfere since the order has worked itself out. But it will be open for the state to raise all contentions if any other convict seeks parole or furlough on this ground,” stated the bench of justices Sanjiv Khanna and Bela M Trivedi.

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The top court added that the state government, being represented through additional advocate general Manish Singhvi, could also approach the Supreme Court again if a similar order is passed by the high court in future.

The reason why it was not interfering with the 15-day parole order, the bench clarified, is because the directive was passed in April and the convict would have already come back after the parole period.

“It is a three-month-old order. He would have gone out and even come back by now. What is the point of interfering with this order that has already worked itself out. But we are expressing our reservations against the judgment,” the bench told Singhvi.

By an order on April 7, the high court granted 15-day parole to a murder convict after his wife pressed for her husband’s release so that the couple could have a child. The high court held that denying the prisoner the chance to fulfil his conjugal rights, particularly for the purpose of procreation, would adversely affect the wife’s rights.

In its judgment, the Rajasthan high court allowed the wife’s plea, emphasising religious, sociological and legal aspects surrounding conjugal rights and right to progeny. According to the high court division bench, religious scriptures spanning Hinduism, Islam, Christianity and Judaism hold that the religious and cultural mandate includes the right to progeny.

“In a case where the innocent spouse is a woman and she desires to become a mother, the responsibility of the state is more important as for a married woman, completion of womanhood requires giving birth to a child,” said the high court, harping upon the sociological context.

As for the legal aspect, the high court relied on a 2014 Punjab and Haryana high court judgment that observes that the “right to procreation survives incarceration” and is a facet of Article 21 (right to life and liberty).

The Rajasthan government challenged this judgment, complaining the high court order is not in tandem with the state’s prison rules, which do not recognise cohabitation for procreation as a valid ground for parole. It added that the prison rules allow parole on emergency basis, or in the event of serious damage to life or property from natural calamity.

“Whereas the ground sought to be added in the instant case could lead to an absurd situation wherein parole could be sought multiple times and the authorities would not even be able to verify the situation or the necessity,” the appeal stated.

It contended that parole based solely on the right of a convict’s wife to have a child, and completely ignoring the rights of the crime’s victims, is arbitrary, and will open the floodgate for similar requests by other convicts too.