Behind bars, the debate rages between legal and illegal

Saurabh Malik in Chandigarh

Homosexuality is rampant in jails, and now with the “unnatural” no more illegal, striking a balance between prisoners’ possible insistence on doing the legal and the likely repercussions of their no more unlawful act will be a challenging affair.

Any jail’s worse kept secret is the same-sex encounters among its prisoners, primarily brought about by forced celibacy. It is “natural” for even “normal” heterosexuals to engage in “situational homosexuality” while they are behind bars.

The reason behind sex in the prison — forced or consensual — is not too hard to comprehend. For both undertrials and convicts, away from family and friends, incarceration in prison can be hopelessly monotonous.

Their “normal” sexuality and sexual activity is on hold because of the “restrictions” and limited suspension of some of their fundamental rights within the Constitutional framework, leading to homosexual pairings.

The not-so-pristine environs are conducive and overcrowded jails a reality in India. The outside world remains in dark about what happens between the co-prisoners in the dead of the night under the forlorn and forsaken circumstances.     

The Supreme Court in D. Bhuvan Mohan Patnaik and others versus the State of Andhra Pradesh and others (1975) asserted that convicts cannot be denied the protection of fundamental rights which they otherwise possess, merely because of their conviction. But sex has, till now, been a no-no affair in the jails, at least officially. The prisoners are separated by gender, making man-woman encounter an impossibility. The prison rules, too, prohibit sexual escapades among same-sex prisoners primarily because of the tag of illegality hitherto fastened to Section 377 of the Indian Penal Code criminalising sexual activities “against the order of nature”.

Referring to the issue, the SC in Sunil Batra-II case observed: “Sex excesses and exploitative labour are the vices adolescents are subjected to by adults. The young inmates must be separated and freed from exploitation by adults…. It is inhuman and unreasonable to throw young boys to the sex-starved adult prisoners or to run menial jobs for the affluent or tough prisoners. Article 19 then intervenes and shields.”

But with the tag now gone, problems may soon be in abundance. The issue of homosexuality and its fallout was raised recently before the Punjab and Haryana High Court with the filing of a petition in public interest on the spread of HIV.

A “public-spirited person” mentioned incredible figures while seeking directions to the state of Punjab and its functionaries to constitute a high-level team for looking into the spread of HIV among the prisoners.

Quoting a newspaper report, he said at least 1,630 inmates were HIV+ in nine central jails in Punjab. The concerns he raised in the petition clearly indicated at the need to apprehend the problem as its repercussions travelled beyond the confines of jail.

“It hardly needs be stated that even if there is one HIV+ inmate in a jail, he can spread the disease to others because it is common for the inmates to share syringes, which are also used for administering drugs, besides by having sexual contacts,” he contended.

This is not all. While Section 377 has almost gone, the contempt for the LGBTQ community still remains. Lesbian, gay, bisexual and transgender prisoners are the most vulnerable among the prison inmates. The solution, perhaps, lies in the recommendations made by Punjab and Haryana High Court in the case of Jasvir Singh and another petitioner versus State of Punjab and other respondents.

Adjudicating prisoner’s right to procreation, Justice Surya Kant allowed jail inmates to have sex with their partners as long as they were married and wanted to have a child. The court held that the right of convicts and jail inmates to have conjugal visits or artificial insemination for progeny was a fundamental right.

The state was directed to constitute a jail reforms committee to be headed by a former judge of the HC for formulating “a scheme for creation of an environment for conjugal and family visits for jail inmates and shall identify the categories of inmates entitled to such visits, keeping in mind the beneficial nature and reformatory goals of such facilities”.

A book, Rape in Prison, by Anthony M. Scacco, Jr. referred to by the Supreme Court in Sunil Batra-II also offered a solution by asserting “sex is unquestionably the most pertinent issue to the inmate’s life behind bar… There is a great need to utilise the furlough system in corrections. Men with record showing good behaviour should be released for weekends at home with their families and relatives”.