-By Tanish Arora and Hardik Batra
(This article is the first part of a two-part series)
Introduction
Crime is a matter of public importance in the society. The way a society responds to crime is what shapes its future. If such way of responding is harsh or arbitrary in its impact, it works a gross injustice on those caught within its toils. Ways of administration of criminal justice play a significant role in understanding a society’s ways of dealing with crime.
Criminal Justice Administration in this era is different from the past. With changing times, the focus on correction, reformation and rehabilitation has increased and harsh, retributive forms of punishments are now losing value. Time and again, multiple reports across the world have focused on this aspect. To some extent, the Indian mentality is not far behind other countries in following this liberal trend and the same is evident from the fact that numerous petitions have been filed in this regard. Several judgements of the recent times have focused on the need for prison administration to become more criminal friendly. Increasing significance coupled with decreasing recidivism and the need for reintegrative and reformative forms of punishment is shifting the paradigm of criminal justice to a new and more liberal level.
Re-socialisation and assimilation of prisoners is the primary goal of prisons. The concept of prison administration is grounded on rehabilitation and individual growth of the offenders along with ensuring social security. In order to attain them, it is important that forms of punishment become more reformative in nature. On this premise, the prison administration and legislature have designed several therapeutic programs.
One of these programs is the conditional release of prisoners. Such release could be labelled as parole or furlough depending on its nature. Both of these, with an aim of reformation of prisoners and humanisation of the prison framework form fundamental part of the prison administration system. Furlough is a leave of absence that is usually granted to a member of a missionary or some service. Parole means a conditional or time bound temporary release of a prisoner during his sentence with a specific purpose. It is granted on the promise of good behaviour.
The current situation of the Covid-19 Pandemic has led to the filing of multiple parole requests and due to the absence of a uniform code in India dealing with parole, different states have expressed different opinion on the same, hence resulting in a compromise of equality with regards to criminal justice advancement.
This article is divided into two parts. The present part seeks to deal with parole in India as laid down by certain statutes and judicial pronouncements. Alongside, it takes into light the ongoing COVID- 19 pandemic and the need for grant of parole. The second part in this series will discuss on the requirement of reforms and suggestions. Further, it will also elaborate on the possible misuse of the law on parole and how to tackle the same.
Parole in India
Parole as a concept finds its origin in military law. Prisoners of war were granted interim release so that they could return to their homes and live as part of the society for some time on a promise of returning when such time ends. With passing time, Parole became part of the criminal justice administration of India to provide prisoners with an opportunity to spend some time being part of the society. However, it could only be granted to a prisoner if such prisoner had served some part of his sentence already.
As established in the case of Budhi v. State of Rajasthan, the concept of Parole serves a threefold purpose:
- As a motivating factor for prisoners’ reformation.
- Ensure as much intactness in the family relations of the prisoners as possible, as they may be prone to breakage due to continued incarceration of the prisoner for a long time.
- Help the misled offenders to gradually become part of the society and adapt to its folds.
It is a device ensuring temporary release of prisoners grounded on good behaviour so that they can escape the penal custody for some time and maintain their family and societal links. This helps in facilitation of rehabilitation and social re-assimilation. It helps in giving a situational solace to the parolee to fulfil certain needs and such parolee is mandated to report to the supervisory officer regularly for the time he is out. In simple words, a prisoner can seek parole and stay out of custody for a temporary period of time while he is yet to complete his sentence.
Now, the question arises as to whether the period on which a prisoner is out on parole counts as part of the sentence or not? There have been different opinions of the Supreme Court at different points of time on this. In the case of Smt. Poonam Lata vs M.L. Wadhawan & Ors., the Supreme Court of India said that “it must accordingly be held that the period of parole has to be excluded in reckoning the period of detention.” However, a few years later the Supreme Court in the case of Sunil Fulchand Shah v. Union of India, said that “A temporary release of the person detained does not change his status as his freedom and liberty are not fully restored. Therefore, the period of temporary release on parole cannot be excluded from the maximum period of detention.” thereby overruling the judgement delivered in the Poonam Lata case.
The Bombay High Court, in the cases of Kantilal Nandlal Jaiswal v. Divisional Commissioner, Nagpur and Hariom Vijay Pande v. State of Maharashtra, through Divisional Commissioner held that parole is a limited legal right available to a convict. However, the Supreme Court in the case of The Home Secretary (Prison) v. H. Nilofer Nisha clearly stated that, “the grant of remission or parole is not a right vested with the prisoner. It is a privilege available to the prisoner on fulfilling certain conditions.”
Moving forward, while considering the rehabilitation of the offenders, it is also important to keep in mind the rights of victim and the security angle attached to the release on parole. There have been instances of convicts resorting to committing crimes while they are released on parole. A very landmark case of Saibanna v. State of Karnataka pertains to the killing of a woman by her husband which resulted in him being served with life imprisonment. While this person was out on Parole, he suspected his second wife to be cheating on him and killed her and his daughter too. With regards to safety of the society and rights of the victims, there cannot be two opinions. The rights of an accused cannot hold preference over rights of victim and the society. Had it been so, they would have only resulted in misplaced sympathy being placed on the accused.
Now, in order to strike a balance between the need for providing prisoners with the opportunity to connect to the society and maintain their family links by way of getting parole and at the same time, avoid such incidents from happening, there existed a provision in the Delhi guidelines on Parole. According to it, those prisoners accused of heinous crimes such as murder, rape, dacoity, etc would get prohibited from getting temporary release. However, this was struck down in the case of Dinesh Kumar v. Govt. of NCT of Delhi for being violative of Article 14 of the Constitution of India.
Despite holding recognition as administrative value, parole is not recognised as a Right in India. A prisoner’s claim to parole is not absolute and the discretion with regards to granting to parole to the said prisoner rests with prison authorities to some extent.
A recent Supreme Court judgement in the case of Asfaq v. State of Rajasthan shreds some light on the parole law in India. The major takeaways from the judgement are:
Parole is the conditional release of a prisoner grounded on good behaviour on the condition that the said prisoner will keep reporting to the authority regularly. It is merely a suspension of his sentence for some time, while the quantum of the said punishment remains unchanged.
Situations in which parole could be granted are:
“(i) a member of the prisoner’s family has died or is seriously ill or the prisoner himself is seriously ill; or
(ii) the marriage of the prisoner himself, his son, daughter, grandson, granddaughter, brother, sister, sister’s son or daughter is to be celebrated; or
(iii) the temporary release of the prisoner is necessary for ploughing, sowing or harvesting or carrying on any other agricultural operation of his land or his father’s undivided land actually in possession of the prisoner; or
(iv) it is desirable to do so for any other sufficient cause;
(v) parole can be granted only after a portion of sentence is already served;
(vi) if conditions of parole are not abided by the parolee, he may be returned to serve his sentence in prison, such conditions may be such as those of committing a new offence; and
(vii) parole may also be granted on the basis of aspects related to health of convict himself.”
However, different states have different guidelines with regards to parole and a decision as to whether parole has to be granted in some case or not depends on the guidelines of the state concerned.
Some state guidelines mention two categories of parole:
Custody Parole – Usually granted in situations of emergency including death of a family member, marriage of a family member, and some family member undergoing serious illness.
Regular Parole – Granted in the other cases such as critical family conditions including accident or death of a family member, child delivery by the convict’s wife in case of absence of any other family member to take care, serious damage to life or property, maintaining social and family ties, or to file special leave petition.
Since no provisions of the Code of Criminal Procedure, 1973 talks about parole and there is no uniform legislation in India dealing with parole, different states have their own different Acts governing this. As a result, there is some grey area with regards to matters pertaining to parole. Unlike the United States of America or the United Kingdom, India does not have a codified legislation on Parole and the authority to decide matters pertaining to parole is only derived from these statutes and judgements.
Covid-19 Pandemic and Grant of Parole
The contagious coronavirus is dangerous to life. People who suffer from diabetes, hypertension, chronic respiratory diseases, cardiovascular diseases or old age stand at a higher risk. The potential of this virus to spread increases in overcrowded areas. On account of this, prisoners across the country filled for extensions and grants of interim bails/paroles.
Considering the condition of prisons in India, many people were at a huge risk of catching this deadly virus. In light of the same, the Supreme Court of India passed an order urging States and Union Territories to effectively release the prisoners on parole taking into account the nature of offence committed.
Since prisons in India are unhygienic and significantly overcrowded, they are prone to serve as hotspots for the transmission of the virus. The Supreme Court with its Parole order had taken a significant decision in this regard, however there were certain problems that this order brought along. The first and the foremost concern in this regard is the flawed parameter of classifying the prisoners to be released on Parole. As per the order, the prisoners must be released based on the gravity of offence they have committed or the prescribed duration of the sentence to be served by them. If the fundamental reason that led to this situation is considered, i.e. the disease, it is important to take into account the age of the prisoners as well as the fact that some of them may be having some underlying diseases that put them at dire risk of getting affected by the virus. This category of prisoners that needs release the most may not be entitled to the same as per the order despite their age and health issues. The only way they can be released is if they fit the criteria pertaining to gravity of offence committed by them, quantum of punishment, etc. Moreover, the order did not even mandate the state to provide proper transfer facilities to the parolees.
Prime Facie, the order left it on the states to “determine which class of prisoners can be released on parole” but in stating that it is left on the High Courts to decide which category of prisoners must be released, the same must be dependent “upon the nature of the offence, the number of years to which he or she has been sentenced, or the severity of the offence.” With these words, the order passed by the Supreme Court clearly binds the States and High Courts with the abovementioned flawed parameter of adjudging the grant of parole.
As a result, certain problems arose and a Public Interest Litigation was filed in the Bombay High Court against such classification for being violative of Article 14 of the Constitution of India. Here, it becomes important to take into account the court’s judgement in the case called National Alliance for People’s Movements Through its National Convener and Others v. State of Maharashtra Through its Additional Chief Secretary and Others. The question of whether inmates were entitled to the emergency parole as a right in light of the pandemic was taken into consideration and it was held that due to the absence of any “sanction of law traceable either to a legislation of the competent legislature, or to an order having the force of law which the executive has authority to make, or to a law declared by the Supreme Court binding on all courts”, the said right to Emergency Parole could not be granted.
[Tanish Arora is a 2nd year student at WBNUJS, Kolkata. Interested in Criminal Law, IBC Laws and Constitutional Law.]
[Hardik Batra is a 2nd year student at WBNUJS, Kolkata. Interested in Constitutional Law, Criminal Law and Sports Law.]