ARTICLE IN DETAIL: PAROLE by PURNIMA NAIDU @ LexCliq

ARTICLE IN DETAIL: PAROLE

MEANING OF PAROLE

Parole is the release of a prisoner, either temporarily for a special purpose or completely before the expiry of a sentence, on the promise of good behavior; such a promise is known as a word of honour provided in the parole order. The word parole is derived from the French ‘je donne ma parole ‘I give my word.’ i.e. the word of honour. This word was used by the prisoners of war for their release by giving promise to the captor.

Therefore, in simple words, Parole is the pre-mature conditional temporary release of a prisoner on the terms of abiding by the conditions along with the observance of certain restrictions to avail the privilege of returning back to the society and socialize with family and friends keeping in mind correctional theory and preparing to return back to his social life. It is mere suspension of the sentence for time-being keeping the quantum of sentence intact. If the paroled prisoners violate the conditions on which they are released, they may be returned back to the prison.

 

OBJECTIVES

Parole leaves are progressive measures of correctional services. The main objectives to release the prisoners on leave as per rule 1(A) and 19 of The Prisons (Bombay Furlough and Parole) Rules, 1959, are as follows:

  1. To enable the prisoner to maintain continuity with his family life and deal with family matters.
  2. To save the prisoner from evil effects of continuous prison life.
  3. To enable the prisoner to maintain and develop his self-confidence.
  4. To enable the prisoner to develop constructive hope and active interest in life.

PAROLE IS NOT COVERED BY SECTION 432 OF CRIMINAL PROCEDURE CODE, 1973

Section 432 of Cr.P.C deals with Power to Suspend or Remi           t Sentences. However, Supreme Court, in Sunil Fulchand Shah v. Union of India, reported in AIR 2000 SC 1023, has categorically observed that “parole does not amount to suspension of sentence”. From this it becomes clear that parole cannot be covered by Section 432 of Criminal Procedure Code.

The grant of parole is governed by rules made under Prison Act, 1894 and Prison Act, 1900. Many State governments have also formulated guidelines to bring out objectivity and facilitate decision-making to determine whether parole needs to be granted in a particular case or not. Such decisions are taken in accordance with guidelines framed from time to time. The Prisons (Bombay Furlough and Parole) Rules, 1959, have been enacted by exercising rule making power under section 59(5) of the Prisons Act, 1984.

Furlough is for breaking the monotony of imprisonment and is granted as a good conduct remission. Furlough is a brief release from the prison, it is conditional and is given in case of a long-term imprisonment. The period of sentence spent on furlough by the prisoners need not be undergone by the prisoner as is done in parole. Following are the different types of Parole:

a) Regular Parole

All prisoners eligible for furlough shall be eligible for regular parole for the following stated reasons:

  • Delivery of child by wife (except high security risk prisoners)
  • Serious illness of father/mother/spouse/ son/daughter
  • In case of natural calamities such as flood, house collapse, earthquake, fire etc.
  • To pursue the filing of special leave petition before supreme court against a judgment delivered by High Court convicting or upholding the conviction, as the case may be.

b) Emergency Parole or Custody parole

All convicted persons except foreigners and those serving death sentence may be eligible for emergency parole for 14 days for reasons like death of grandfather or grandmother/ father/mother/spouse/son/ daughter/ brother/sister and marriage of son/ daughter/ brother/sister, provided that no extension can be granted to emergency parole. Emergency parole is granted by Superintendent of police for the reasons of death of parental grandfather or grandmother/ father/ mother/spouse/son/ daughter/ brother/ sister and by concerned Dy. I.G. for the reason of marriage of son/daughter/brother/ sister and the authority approving emergency parole shall decide whether to grant parole under police escort or with a condition to report daily to the local police station depending upon the crime committed by the prisoner and his conduct during his stay. The expenses of police escort will be borne by the prisoner himself prior to his release on parole.

A prisoner shall not be released on regular or emergency parole for a period of one year after the expiry of his last emergency or regular parole except in case of death of his nearest relatives mentioned above.

 

CASE LAWS

The Hon’ble Delhi High Court, in the case between Election Commission of India vs. Mukhtar Ansari held that custody parole cannot be a substitute for grant of bail and cannot be extended for long periods or for daily visits. The Hon’ble Supreme Court in the case of Asfaq. vs. State of Rajasthan & Ors, assumes significance because the said judgment specifically pertains to grant or rejection of parole. “Rejection of parole leave shall not be maintainable if it is denying prison justice”, is the ratio decidendi given in Gujrat High Court Judgment Vasram Gagji vs. State of Gujarat and Ors. dated 29.06.1992

Recently, Dr Jalees Ansari who is also called as Dr. Bomb as he has been convicted in the Ajmeer blasts, Jaipur serial blast and Malegaon blast case and accused of plotting and executing over 50 bombs blasts across the country since early 90s and was presently serving life sentence was released on parole by Supreme Court order on 28.12.2019. He was found missing on 16.01.2020 when he was supposed to report next day. Delhi High Court had granted 18 days parole to Manu Sharma, who is undergoing life term for killing model Jessica Lall in 1999, to pursue his LLB course and get his marriage registered. Actor Sanjay Dutt was granted over five months of Parole and furlough for various reasons in his five year jail term due to involvement in 1993 Mumbai blasts case.

Allahabad High Court recently granted parole for two days to Mr. Atul Rai who won last year’s Lok Sabha election from Ghosi parliamentary constituency in Mau, Uttar Pradesh for taking oath as Member of Parliament in New Delhi.

 

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.

 

PAROLE AND THE PANDEMIC

The cellular jail can act as an amplifier to an infectious disease like the coronavirus wherein the major technique followed to prevent is social distancing perhaps cannot be practiced in a small confinement. This is where the criminal justice has taken matters into their hands to prevent this from becoming an epidemic in the prison. Jails and prison are home to people who might have chronic diseases or suffer from other medical conditions making them vulnerable to covid-19. In addition, reducing jail admission at present, will help decrease the danger of viral transmission into the jail populace and keeps up a jail populace size to which the office can give fitting clinical consideration.

Extensive measures for the wellbeing of the prisoners to limit the transmission of COVID- 19 have been taken by the State Governments. These measures for the most part incorporate making of isolation wards, isolation of new inmates including inmates of foreign nationality for a particular period, regular assessment of prisoners for COVID-19, guaranteeing accessibility of medical help, focusing examination of staff and other specialist.

A Bench headed by Chief Justice of India ordered each State and Union Territory (UT) to authorise a committee headed by the chairman of State Legal Services Committee, Principal Home Secretary and Director General of Prisons to classify the strata of prisoners that can be released on parole or interim bail depending upon their nature and level of offence committed, their sentence of imprisonment, etc. Moreover, the Apex Court further stated, the State and Union Territory could make an exception and consider release of the prisoners who are convicted or at present are under trial for offences which prescribe a punishment for maximum of 7 years or less, with or without fine and where the prisoner had been given a sentence lesser than the maximum prescribed.

 

APPROACH TAKEN BY VARIOUS STATES

  • The court order States like Bihar, Karnataka, Maharashtra, Uttar Pradesh, Tripura, Jharkhand, Goa, Kerala, Telangana and UTs of Jammu & Kashmir and Chandigarh to allow interaction of visitors via video conferencing or telephonic calls. Screening and check-up has been adopted for those returning from their parole.
  • The Uttar Pradesh government has comprised ‘COVID-19 Special Task Force’ in each of the 71 detainment facilities to screen the avoidance of transmission.
  • Rajasthan and Jharkhand had taken measures to decongest prisons by moving detainees to different offices.
  • Goa, Kerala, Telangana, Karnataka and Haryana have adopted a method of screening the prisoners returning from parole.
  • Punjab has requested specialists to monitor transitory spots to hold detainees if there might be an occurrence of any infection.
  • The Maharashtra state government has gradually started discharging prisoners on parole and on interim bail amid the spread of the coronavirus pandemic
  • The State of Haryana has guided prison facilities to get ready block wise time table identifying with food and different administrations to prevent congestion.
  • Andhra Pradesh, Uttarakhand, Punjab and Maharashtra and UT of Ladakh have recognised and classified special group of prisoners, which are progressively more prone to the disease, for example, old- age prisoners with respiratory illnesses.
  • Many state prison cells have installed thermometers for examining the prisoners, staff and visitors.

CRITICISM

Following the orders passed by the Supreme Court there has been slight criticism. The argument that withholds is that the criteria is ill thought and arbitrary in nature. A violence broke out in a West Bengal prison. As the authorities came up to an understanding to ban prison visitors amid spread of COVID-19 as a result of which prisoners began to protest and the prison authorities used force to tackle the same thereby leading to a violent clash. Prison activists argue that the Supreme Court’s order to prioritise those below seven years of imprisonment has neglected other convicts with graver charges despite of urgent need.

The order called for measures to be taken to closely monitor those prisoners having symptoms like cold and fever, to be isolated. But in reality there are many who suffer from these and is often not taken into account. Prison authorities especially now lack manpower to handle such a situation as they are operating on minimum staff and lack police force for sending these prisoners back home. The whole nation is under a lockdown, no public transport is accessible for these prisoners to utilise once discharged on parole. Furthermore, the prison specialists have made no courses of action to help those discharged discover their way back home. The circumstance declined as their families and lawyers were likewise denied from making visits. There is no regular surveillance made with regards to masks, proper sanitation and social distancing.

 

RECENT SUPREME COURT JUDGEMENT

[IN RE : CONTAGION OF COVID 19 VIRUS IN PRISONS, order dated 07.05.2021]

In Supreme Court The 3-judge bench of NV Ramana, CJ and L. Nageswara Rao and Surya Kant, JJ has issued directions to contain the spread of coronavirus in the overcrowded prisons of India.

The Court said,

the requirement of decongestion is a matter concerning health and right to life of both the prison inmates and the police personnel working. Reduction of impact of Covid-19 requires this Court to effectively calibrate concerns of criminal justice system, health hazards and rights of the accused. From limiting arrests to taking care of Covid-19 Patients, there is a requirement for effective management of pandemic from within the prison walls so as to defeat this deadly virus.”

Anticipating the spread of Covid19 virus in overcrowded prisons, on 23.03.2020, the Court had directed the State Governments, Union Territories to constitute High Powered Committees to determine the class of prisoners who can be released on parole or on interim bail for appropriate periods. The High-Powered Committees were constituted in all the States, except a few.

On the basis of recommendations made by the High-Powered Committees, a large number of prisoners were released either on interim bail or on parole. Due to the reduction of the number of active cases, the released prisoners were directed to report back to prisons. Almost 90% of the prisoners who have been released last year have returned to prisons in February and March, 2021.

However, the unprecedented surge in Covid¬19 during the last few weeks has caused a serious concern about the spread of Covid-19 in overcrowded prisons where there is lack of proper sanitation, hygiene and medical facilities.

The Court, hence, directed that,

  1. There should be strict control and limit on the authorities from arresting accused in contravention of guidelines laid down in Arnesh Kumar v. State of Bihar,  during pandemic.
  2. The rapid proliferation of the virus amongst the inmates of congested prisons is a matter of serious concern. The High-Powered Committees constituted by the State Governments/Union Territories shall consider release of prisoners by adopting the guidelines followed by them last year, at the earliest. Those States which have not constituted High Powered Committees last year need to do so immediately. Commissioner of Police Delhi shall also be a member of the High-Powered Committee, Delhi.
  3. The High Powered Committee, in addition to considering fresh release, should forthwith release all the inmates who had been released earlier pursuant to our order 23.03.2020, by imposing appropriate conditions. Such an exercise is mandated in order to save valuable time.
  4. Those inmates who were granted parole, pursuant to earlier orders, should be again granted a parole for a period of 90 days in order to tide over the pandemic.
  5. Prison occupancy must be updated on websites by all States as is being done in Delhi and should be adopted as good practice. Moreover, all the decisions of High-Powered Committees need to be published on respective State Legal Service Authorities/State Governments/High Courts websites in order to enable effective dissemination of information.
  6. “The fight against the pandemic is greatly benefitted by transparent administration. ”The Court, however asked the authorities to be considerate of the concerns of the prisoners who might not be willing to be released in view of their social background and the fear of becoming victims of the deadly virus.
  7. Further, the authorities are directed to ensure that proper medical facilities are provided to all prisoners who are imprisoned.
  8. The spread of Covid-19   virus should be controlled in the prisons by regular testing being done of the prisoners but also the jail staff and immediate treatment should be made available to the inmates and the staff. Further, levels of daily hygiene need to be maintained and sanitation required to be improved.
  9. The Court also directed that appropriate steps shall be taken for transportation of the released inmates of the prisons, if necessary, in view of the curfews and lockdown in some States.

CONCLUSION

The provisions of parole are not well-known by the common man and often considered to be quite cumbersome. Awareness was possible after media highlighted about the grant of parole in high profile cases. The Rules of the Central government framed in 1955 are the skeleton and there is undoubtedly an affirmative need for updating these rules and thereby enunciating comprehensive provisions so as to provide suitable guidelines to those who have to consider applications for grant of parole. Grant of parole enables inmates an opportunity to maintain their social relations and ties to facilitate bouncing back into the society on their service of sentence. Parole had often been integral part of English and American system. Sir Alexander Paterson had said in 1930 that no human being can stand prison life for more than 10 years. If the goal of imprisonment is reformation, on which he further said that there should not be a second opinion, there should be no hesitation on the part of the legislature to effect it. Parole is claimed to be a success in rehabilitation and checking the attitude of the convict during the parole. It acts like an executive action after the door has been shut on the convict. However, not all people are equal and there are exceptional cases where there has been misuse of the parole granted and convicts have fled away thereby, abusing the privilege granted. Having said that, it should also not take away an opportunity from the convicts who can emerge as a successful person with the help of parole as measure of penal reform. It is rightly said that criminality is the expression of a `symptom’ of certain disorder in the offenders and they can be easily diagnosed and correct treatment administered to them. Knowing the fact that parole is not a right but a privilege upon the good behavior observed, allowing them to reinstate in the social environment and giving a fair opportunity to rehabilitate is what can bring the change in them and in the society instead of merely overcrowding the prisons.

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