Indian courts have recognized that prisoners possess procreative and marital rights under Article 21 of the Constitution, allowing parole to exercise these rights. However, granting parole on this basis undermines the equality rights of homosexual prisoners, as their right to marriage lacks statutory recognition. By linking parole to the broader right to intimacy under Article 21, courts can ensure inclusivity and equality for all prisoners.

In D. Bhuvan Mohan Patnaik & Ors v. State of Andhra Pradesh & Ors, the Supreme Court of India in a landmark judgment held that the prisoners are vested with certain constitutional rights despite their incarceration. Following this ruling, in 2014, the Punjab and Haryana High Court became the first Court to hold explicitly that the right to procreate and maintain one’s marital ties forms part of the fundamental rights to life and liberty guaranteed under Article 21 of the Indian Constitution.

This interpretation laid the basis for granting parole to prisoners for a limited time to exercise their procreative and marital rights. Following this, other courts, including the Delhi High Court and the Rajasthan High Court, followed this trend by recognizing procreative and marital rights as constitutional, moral, and social rights, thereby establishing a model for granting temporary parole on these grounds.

However, the affirmation of procreation and marital rights for prisoners suffers a glaring challenge on the grounds of equality: by allowing procreative and marital rights as the basis for parole, Indian courts have effectively created an additional ground for granting parole to heterosexual married couples, as same-sex marriages do not have judicial or statutory recognition in India. The effect of adopting such reasoning is that Punjab became the first state to introduce a scheme to grant prisoners the right to establish intimate relations during incarceration, yet the same is restricted to married individuals. This has created a new domain for the equality jurisprudence to address, as a class of prisoners are denied the enjoyment of similar benefits, without any reasonable basis for such classification.

Article 15 of the Constitution guarantees that no citizen shall face discrimination solely only on the ground of ‘sex’, among others. In the landmark judgment NALSA v Union of India, the Supreme Court unequivocally observed that the term ‘sex’ under Article 15 extends beyond biological attributes to encompass sexual identity and character (para 59). Further, Justice Indu Malhotra had explicitly affirmed in Navtej Singh Johar v Union of India (para 15.2) that LGBTQ+ community is entitled to the protection afforded by Article 15.

Interestingly though, the Supreme Court in 2023 delivered another major ruling in Supriyo v. Union of India which expanded the jurisprudence on relationship rights in India. The Supreme Court observed that the right to choose a partner, cohabit, and enjoy physical intimacy falls under the right to life guaranteed to all individuals under Article 21 of the Indian Constitution (para 52). Therefore, to avoid discriminatory treatment, instead of adopting the right to procreate and maintain marital ties as a ground for the grant of parole, the courts should grant parole on the foundation of the right to physical intimacy.

By tying parole to the right to intimacy rather than procreative and marital rights, the courts can not only ensure that all individuals, regardless of sexual orientation, are afforded equal opportunities to apply for parole but also adopt a reasoning that reflects the true constitutional spirit.