Jailbird dependants….
By Maxwell Pereira
maxpk@vsnl.com

An intriguing development just over a year ago had attracted my attention, when a 31 year old lady in Ludhiana, herself employed as a nurse, had sought permission of the authorities to cohabit with her jailed husband - claiming her right to motherhood as a married woman as part of her fundamental right to life and liberty as enshrined in Article 21 of our Constitution. She argued that she cannot be deprived of this right merely because her husband is serving a jail term. A relevant basic human right issue, of a woman who has done no wrong and her right rendered non-exercisable for no fault of hers. Till date one is not aware what happened to the direction of the Punjab Human Rights Commission to the Addl DG-Jails then, to study the matter with relevance to the jail manual.

Perhaps the relevant laws attracted, allow parole to a jail inmate when he has to harvest or sow crops; for specialized medical treatment; to pursue higher education; to visit sick relatives; to attend a funeral; and to contest elections. These are common grounds wildly in use, also for criminals who use them to jump parole or commit crime while on parole and disappear.

But to comeback to the issue in hand and equate similar rights of other dependents, one could look at - the right to cohabit with his wife by a husband whose wife is incarcerated; the right to share moments of achievement in education, of excellence in sports and extra-curricular activities, decision to pursue higher studies, societal recognition; and the children's own right to love, affection, wealth and bliss of family life in the company of their parent.

The Constitution, one sees, has enshrined the fundamental right to life and personal liberty and defined this right in a broad sense and not in the remote sense. Over time, the Court has defined this right further as and when any matter has come before it. For a jailed person though, this very right stands curtailed by law.

Against this background, there does appear to be an imbalance between the rights of a jailed person and his dependents. Segregating curtailment of rights of the jailed person, while guaranteeing the rights of his dependents, has not been defined. Separation of rights of the jailed person and his dependents even though inescapable, delicate and very thin, the matter remains in limbo for reasons that these rights are not available and not exercisable by the dependents for no fault of their own. In so far as the right to cohabitation by wife, to love, warmth, affection, bliss of family life, sharing moments of happiness (life time) at the time of academic achievement, sports excellence, societal recognition, birth of child/ grand child, marriage of children, death in family, religious ceremonies, deciding/ selecting bride/ groom for children, interviews of parents in school at the time of admission, division of property, when safety and security of the family is at stake etc., hence stand alienated.

Undefined are also other links between rights of a jailed person and other dependants, in circumstances where the jailed person is the source of flowing rights for dependants like parents, wife and children - and any restrictions curtailing his rights automatically lead to curtailment of rights of life and personal liberty of his dependants for no fault of theirs. A chain of curtailments begin, affecting and curtailing the rights of innocent dependents. There is no end to such curtailment of rights of dependants. Till date the law is silent and has not decided how far and how much to curtail the rights of such subjects who are affected for no fault of theirs. A clear and viable line of legal balance demarcating the line between the curtailment of rights of the jailed persons and his dependants, is yet to be drawn.

In terms of cause and effect, the husband has committed some offence and is jailed, his wife has done no wrong but is suffering the effects of his misdeeds in the shape of deprivation of the right to cohabit, love, warmth, affection, bliss of family life, physical and emotional security, stigma, ill-reputation, disregard in society, facing an uncomfortable neighbourhood and relatives, disrespect at work place and in society at large.

Many reforms have indeed been introduced in recent times to improve the life style of persons incarcerated. Courts have ensured rights for convicts and under-trial prisoners/criminals by removing handcuffs, informing them of grounds of arrest, informing their relatives and advocates, medical check-up, and so on. So much so, there has emerged a school of thought which highlights the need to look at the other side of the coin too… challenging the 'human'ness of a criminal, for him to be entitled to human rights as applied to normal humans! The recent jail breaks, and incidents of escapes, violence and nexus between jail staff and criminals, have further questioned the reforms in favour of jailbirds and going over-board over it. Even so, and even though a lot has been done for persons who have committed some sort of crime, the fact remains that nothing has yet been contemplated, to counter the effects on innocent dependents loosing their rights for no fault of theirs. The balance of convenience perhaps is more in favour of convicts and less in favour of their innocent dependents when the question of guaranteeing rights has to be decided.

850 0words: 16.03.2004: Copy Right © Maxwell Pereira: 3725 Sec-23, Gurgaon-122002. You can interact with the author at http:// www.maxwellperira.com and maxpk@vsnl.com

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