-By Tanish Arora and Hardik Batra
(This article is the second part of a two-part series.)
The Need for Reforms and Suggestions
As observed in the previous part, the subjectivity and non-uniformity in the procedure to increase the scope of rehabilitation and reformation throughout the country leads to significant confusion and differentiation. It is owing to the lack of codification of the parole law, that some courts recognise only two kinds of paroles, i.e. regular and custody whereas some recognise another category, the emergency parole.
If the very recent situation of the current pandemic is taken into consideration, the Supreme Court order provided a limited liberty to different states and union territories to have different parameters of deciding the criteria for prisoners to be able to seek interim bail/parole. This means that the inmates of different states could possibly be subject to different criterium while seeking parole to some extent.
The first and the foremost reform that is required is the codification of this law and its uniform applicability throughout the country. Considering the vast acceptance and recognition of parole as a concept throughout the world and even in India, the legislature needs to draft a legislation that is comprehensive as well as objective to its extent and holds a uniform applicability. It is true that the administration of parole is not a halted process in India in the absence of such legislation, but to address the absence of uniformity, its codification is important to avoid any kind of vagueness or arbitrariness in the administration of justice. A uniform law can be regarded as a step forward. The law of parole must be regulated strictly in accordance with the norms and procedures prescribed statutorily.
Furthermore, an assessment of the existing laws followed by required changes with regards to proper effectiveness of the system of parole so that it effectively meets the intended standards of objectivity and ensures rehabilitation of the prisoners must also be executed. This could be done with a detailed survey targeting how parole system has impacted inmates over the course of past few years. This would be important to distinctively chalk out the requirements of the current era and successfully meet them. Something similar was done in the United States of America. The review study conducted there brought into light the immense success of the probation system wherein minimal reconvictions of the same offenders were reported.[1] While this report is focused on probation as a system, the same when done about parole in India is bound to result in either of the two possibilities.
First, that grant of parole when scrutinised on the lines of reconviction may not have proven to be very fruitful. In that case, it would help understand the shortcomings of the existing laws and in turn rectify the same in the codified uniform law.
Second possibility would be that the grant of parole while being scrutinised on the same lines would prove that recommission is not frequent. In this case, it would depict the effectiveness of parole and hence help in the codification of the law.
Both possibilities result in one aspect, clarity with regards to the existing law which is bound to be helpful in the codification.
Another important aspect to be taken into consideration is the clarification of parole laws with regards to offenders who are minors. In the United States of America, certain instances had taken place that led Supreme Court of the United States to pass a judgement in the case of Graham v. Florida “that juvenile offenders cannot be sentenced to life imprisonment without parole for non-homicide offenses.” Such a provision would help the legal framework in India as the crime rate among minors in the country is not negligible.
Additionally, it is important to keep in mind, that such law must be liberal and criminal friendly, while not putting the lives of victims or the offenders themselves at risk. If a criminal is released on parole, there is a possibility that they may seek vengeance from the victim and hence commit crimes while being out on parole. There is another possibility that such parolee is a habitual offender and while being out on parole, he or she resorts to committing the same crime again, to innocent people as was witnessed in the Saibanna case. Another possibility is that the social stigma surrounding crime fills the general public or other people outside the prison with immense hatred and contempt towards an offender and when this offender is released on parole, he or she could end up getting killed by aggrieved members of the society or any party directly concerned in their criminal matter. Thus, the law on parole must be such that it can mete out the possibility of these, or other events similar to these as much as possible. With regards to this, we would lay the suggestion of partially restoring the Delhi Parole Guidelines’ rule struck down in the Dinesh Kumar case. Hence, not completely prohibiting criminals having committed heinous crimes to seek parole, but putting down objective criteria such as determination of whether the criminal is a habitual offender, or partially insane, short tempered, etc.
The currently existing legal framework in India with regards to parole, despite its effectiveness falls short on certain aspects, is non-uniform and lacks objectivity to some extent. Thus, it is important to codify this law and one of the possible ways could be amending the Code of Criminal Procedure, 1973 and adding parole laws to it that may be applicable to the whole of India uniformly.
Possible Misuse of the Law on Parole – How to Tackle?
It is extremely important to acknowledge the possibility of a more liberal law of parole ending up being misused by some offenders thereby putting lives at risk, as pointed out in the section above. People seeking parole, who may be politically backed and may hold some powers could end up being potential threats to the victims and as pointed out earlier, there can be no opinions when it comes to the rights of victim or the rights of accused. The former must hold preference over the latter in any case. Thus, the question as to how misuse of such laws could be avoided arises.
Absolute prevention of misuse of most laws in place would be utopian and the same goes with parole. However, since it is also important to have a criminal justice administration system that is more reformative, liberal laws are very needful. Despite the absence of a perfect procedural application of the law on parole, if specific dedicated authorities are formed to look over the grant of parole and manage its administration, a balance could indeed be stroked. A similar model is prevalent in the United States of America.[2]
If the grant of parole is grounded on numerous considerations and verification by multiple authorities, and a significant amount of scrutiny is placed on every single offender seeking parole, misuse could well be restricted to a great extent.
Thus, having more than one authority, with the required access to resources in order to conduct the needful assessments, background checks, and so on could be a way to avoid misuse of a liberal law on parole.
Additionally, a provision with regards to cancellation of parole with a stringent punishment and absolute disqualification from seeking parole in future if the parolee while on his release performs a crime could induce a fear and would prevent such mishaps to an extent. A provision on these lines was also incorporated in the Sashastra Seema Bill, 2007.
Conclusion
Of all the measures of a rehabilitative nature that form part of the criminal justice administration, parole is unique because of the fact that it is not a right like bail, but a suspension on the promise of good behaviour. The significance of parole as described in this article, stands out and it is a sorry state of affairs that the law on parole is yet to be codified. The penal laws of India were framed in an era where neoclassical criminology was prevalent in the society and aggressive and punitive forms of punishment were believed to be more effective and preventive of crime. Therefore, acceptance of concepts like parole was difficult to incorporate. Moreover, since there was/is an absence of this concept in the Code of Criminal Procedure, 1973, it was held that different States and Union Territories could come up with their respective parole laws when the society began modernising and realised the need for liberal manifestation of the procedural law. Today, with increased awareness, the society is transitioning towards more liberal and rehabilitative forms of punishment. Hence, it is extremely important to codify the parole law and have its uniform applicability to the whole of India.
[1] R.F. Sparks, The Effectiveness of Probation: A Review, in Crime and Justice – 3: The Criminal in Confinement 211-216 (Leon Radzinowicz and Marvin E. Wolfgang eds., London: Basic Book Publishers, 1971)
[2] Daniel Glaser and Vincent O’Leary, The Results of Parole, in Crime and Justice – 3: The Criminal in Confinement 245-259 (Leon Radzinowicz and Marvin E. Wolfgang eds., London: Basic Book Publishers, 1971).
[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.]