This article is written by Ms. Kishita Gupta from Unitedworld School of Law, Karnavati University, Gandhinagar. In this article, she discusses the concept of parole in India and the rules and regulations relating to it.
Parole is an important aspect of the criminal justice system. Parole generally refers to a prisoner’s temporary or permanent release before the end of a sentence in exchange for good behaviour. It is a type of consideration given to prisoners in order to assist them in reintegrating into society. It is nothing more than a tool for the prisoner’s social rehabilitation. However, in recent years, the paradigm has shifted dramatically, with the wealthy and powerful using parole to avoid serving a prison sentence. In contrast, there are thousands of other convicts whose appeals for parole are ignored, because they are poor and powerless, they do not have the resources to use the process or they are unfairly denied the benefit for weak reasons.
Meaning of parole
The word parole is derived from the French phrase “je donne ma parole”, which means “I give my word,” and its dictionary definition is “word of honour”. Treatment in the form of monitoring, direction, and help is ideal for parole. While it is correct that all released prisoners benefit from parole officials’ supervision, the benefit to society as a whole would be significant if all prisoners were kept under tight monitoring during the time of adjustment following their release. A prisoner who spends nearly a decade behind bars loses connection with the outside world regarding transportation, purchasing basic necessities, renting a house/shop, etc, but he acquires a set of distinct everyday living skills that must be unlearned by the prisoner.
The concept of parole has its origins in military law. The interim release was provided to prisoners of war so that they might return to their families and live as members of society for a period of time, with the promise of returning when the time period was over. With the passage of time, parole became an element of India’s criminal justice system, allowing inmates to participate in society for a period of time. It could only be granted to a prisoner if he or she had already served a portion of his or her sentence.
Background of the concept of parole
The idea of parole finds its roots in the positivist school of Law. Samvel G. Howe, a Boston criminal reformer, used the phrase “parole” in a correctional context in 1847. People are free to select their own behaviour, according to the Classical School of Philosophy. An offender constantly calculates his gain, his pleasure, at the expense of others’ anguish when committing any crime. As a result, he must be punished. However, the Positivist school maintained that circumstances drove people to commit crimes. As a result, he has to be rehabilitated. The idea of parole evolved from there. It gives the prisoner a second chance to reform himself. Although the offender may have committed a crime, it is not desirable that he be forever stigmatized and denied the opportunity to rehabilitate himself.
The objective of allowing parole
Parole gives the prisoner a second chance to reform himself. Although the offender may have committed a crime, it is not desirable that he be forever stigmatized and denied the opportunity to rehabilitate himself. It’s a way of assisting the inmate in becoming a law-abiding citizen while also guaranteeing that he doesn’t misbehave or return to criminal activity. The paroling function could be useful as a “safety valve” to help keep jail populations in check in proportion to capacity, avoiding the dangers and costs of overcrowding.
Parole is a rehabilitative procedure that aims to change the qualities of such people. The goal of this correctional approach is fulfilled if the delinquent demonstrates that he can change his ways and will stop criminal actions that are harmful to the community, as well as if he displays an overall improvement in his character and behaviour.
The idea of parole, as established in the case of Budhi v. State of Rajasthan (2005), serves three purposes:
- As a motivator for prison inmates to change their ways.
- Ensure that the prisoners’ family relationships are as intact as possible, as they may be prone to fracture as a result of the prisoner’s protracted confinement.
- Assist the offenders in gradually assimilating into society and adapting to its folds.
The following was stated in the landmark case of Charanjit Lal vs. State of Delhi 28 (1985):
- Deterrence, prevention, retribution, and reformation are the four basic goals that a state hopes to achieve by punishing an offender.
- Life offenders should be considered for periodic release from prison, and opportunities should be provided for them to not only handle their personal and family problems but also to retain their ties to society.
- They must be allowed to breathe fresh air for at least a short period of time, provided that they maintain good behaviour throughout their confinement and show a want to mend and become good citizens.
- While they are serving a sentence in jail, the redemption and rehabilitation of such inmates for the good of society must be given fair consideration.
Application in India
The laws enacted under the Prison Act of 1894 and the Prisoner Act of 1900 govern the award of parole in India. Each state has its own set of parole guidelines, which differ slightly from one another. The Prisons (Bombay Furlough and Parole) Rules, 1959, were issued under Section 59(5) of the Prisons Act, 1984, which gives the government the right to make rules. Furlough is granted as a good conduct remission to break up the monotony of jail. Furlough is a conditional release from prison that is granted in the case of long-term imprisonment. The prisoner does not have to serve the remainder of his or her term on furlough, as is the case with parole.
Custody and regular parole are the two kinds of parole. Certain types of convicts, such as those convicted of crimes against the state or who pose a threat to national security, non-Indian citizens, and others, are not eligible for parole. People convicted of murder, rape of children, multiple murders, and other crimes are likewise exempt unless the issuing authority decides otherwise.
Eligibility for the grant of parole
According to the 2010 Parole/Furlough Guidelines, to be eligible for parole:
- A convict must have served at least one year in jail, excluding any time spent in remission.
- The prisoner’s behaviour had to be uniformly good.
- The criminal should not have committed any crimes during the period of parole if it was granted previously.
- The convict should not have broken any of the terms and restrictions of his or her previous release.
- A minimum of six months should have passed since the previous parole was terminated.
The procedure followed when a prisoner requests parole
After an inmate requests parole, the jail authority (Superintendent) requests a report from the police station that conducted the arrest, as is standard protocol. The report, along with all additional documents such as a medical report (in the case of illness as a justification for parole), and the Superintendent’s recommendation, is then given to the Deputy Secretary, Home (General), State Government, who makes the final decision on the application. In some states, the application is referred to the Inspector General of Prisons along with the police report and recommendation, who then considers it before the District Magistrate. The decision is made by the State Government in collaboration with the District Magistrate.
Does CrPC cover the concept of parole?
The Power to Suspend or Remit Sentences is covered by Section 432 of the Criminal Procedure Code, 1973. In Sunil Fulchand Shah v. Union of India (2000), the Supreme Court said explicitly that “parole does not amount to suspension of sentence.” As a result, it is evident that Section 432 of the Criminal Procedure Code does not apply to parole.
Because there are no sections in the Code of Criminal Procedure, 1973, that deal with parole, and because there is no unified legislation in India that deals with it, individual states have their own laws governing it. As a result, there is some ambiguity when it comes to concerns about parole. Unlike the United States of America or the United Kingdom, India lacks codified parole legislation, and the power to decide on parole issues is drawn solely from these statutes and judgments.
Types of parole in India
Custody parole or emergency parole
Custody parole is provided in emergency situations. Except for foreigners and those serving death sentences, all convicted persons may be eligible for emergency parole for 14 days for reasons such as the death of a family member (which includes grandparents, father, mother, spouse, son, daughter, brother, sister) and the marriage of a family member (which includes son, daughter, brother, sister), provided that emergency parole cannot be extended.
The Superintendent of jail grants parole, which is subject to verification of the circumstances from the concerned police station. Depending on the offence committed by the prisoner and his behaviour during his stay, the authority approving emergency parole will determine whether to give parole under police escort or with a condition to report daily to the local police station. Prior to his parole release, the prisoner will be responsible for the costs of a police escort. Except in the case of the death of his nearest relatives, a prisoner may not be released on regular or emergency parole for a period of one year after the expiration of his previous emergency or regular parole.
Except in exceptional circumstances, offenders who have served at least one year in prison are eligible for regular parole for a maximum of one month. It is awarded for a variety of reasons, including:
- A family member’s (which includes father, mother, spouse, son, daughter) serious illness
- A family member’s death or an accident. (same as custody parol, as stated above)
- A member of the family marries.
- The convict’s wife gives birth to the child (except for high-security risk prisoners).
- Maintain social or familial ties.
- Natural calamities cause serious harm to the convict’s family’s life or possessions.
- Continue to file a Special Leave Petition.
The distinction between parole and furlough
The Supreme Court has clarified the difference between parole and furlough in a number of decisions (the State of Maharashtra vs. Suresh Panduram (2006), State of Haryana and Ors. vs. Mohinder Singh (2000), etc). The following are a few of them:
- Parole and furlough are both forms of conditional release.
- Parole can be awarded in the case of short-term detention, whereas furlough is allowed in the case of long-term detention.
- Parole lasts for one month, whereas furlough lasts for a maximum of 14 days.
- The Divisional Commissioner grants parole, and the Deputy Inspector General Prison grants furlough.
- A specific justification for parole is necessary, whereas a furlough is intended to break the monotony of imprisonment.
- In the case of furlough, the duration of incarceration is not taken into account for calculating the term of parole.
- Parole can be given multiple times, whereas furlough has a limit.
- Furlough can be denied in the interest of society because it is not granted for any specific reason.
Parole according to the judiciary
According to the Indian judiciary, in the case of Krishan Lal v. State of Delhi (1976) parole, a penological innovation, is a success in rehabilitation and reducing recidivism. Parole, according to the Mohinder Singh case, is “a conditional release of a prisoner who has served part of the period for which he was condemned to jail, often under the supervision of a parole officer, who has served part of the term for which he was sentenced to prison.” Parole refers to executive action done after a convict’s sentence has been completed. There is no suspension of sentence during parole, but the sentence continues to run throughout that time as well.
“It is not out of place to mention that if the State takes up a flexible attitude, it may be possible to permit long spells of parole, under controlled conditions, so that fear that the full freedom if bailed out, might be abused may be eliminated by this experimental measure, punctuated by reversion to prison,” Justice Krishna Iyer stated in Babu Singh and Ors. v State of U.P (1965). Unrelenting isolation in the harsh and hardened company of other inmates leads to a slew of unmentionable vices, therefore humanizing parole periods are an important aspect of our system’s compassionate constitutionalism.
Saibanna v. State of Karnataka (2005) is a landmark case involving the murder of a lady by her husband, for which he was sentenced to life in prison. While on parole, he suspected his second wife of cheating on him and murdered her as well as his daughter. The Court opined that there can be no two perspectives on the safety of society and the rights of victims. The rights of an accused person cannot take precedence over the rights of the victim and society as a whole. If such had been the case, it would have merely resulted in mistaken sympathy for the accused.
There was a provision in the Delhi Rules on Parole to achieve a balance between the necessity to provide inmates with the option to reconnect with society and retain their family ties through parole while also preventing similar occurrences from occurring. It states that prison inmates accused of terrible crimes such as murder, rape, or dacoity will not be eligible for interim parole. However, in the case of Dinesh Kumar v. Govt. of NCT of Delhi (2012), this was found to be in violation of Article 14 of the Indian Constitution.
In the case of the Election Commission of India vs. Mukhtar Ansari (2017), the Hon’ble Delhi High Court declared that custody parole cannot be used as a substitute for bail and cannot be extended for long periods of time or for daily visits. In the case of Babulal Das v. State of West Bengal (1975), the Supreme Court held that people who are imprisoned and enraged without trial should be given a chance to reform themselves through reasonable use of the parole power, calculated risks, and short-term release, which could be a social gain if the beneficent jurisdiction is wisely exercised. In Inder Singh v. the State (Delhi Administration) (1978), the Supreme Court stressed the importance of allowing parole to be used liberally, especially in the event of grave offences.
It was observed in a recent case of Sanjay Kumar Valmiki v. State of NCT of Delhi (2020) that “parole is a discretionary exercise, whereas furlough is a beneficial privilege of the criminal to be considered for release, which the convict can claim provided he meets the Act’s and Rules’ requirements. Parole is granted in emergency situations, whereas furlough is granted to the petitioner if the prerequisites are met. According to Rules 1171 to 1178 of the Delhi Prison Rules, 2018 and Rule 1223, a prisoner is only eligible for furlough if he has received three Annual Good Conduct reports and, as a result, three Annual Good Conduct Remissions.”
Does parole period counts under sentence?
The Supreme Court has expressed differing views on this issue at various times. The Supreme Court of India stated in the case of Smt. Poonam Lata v M.L. Wadhawan (1987) that “it must thus be decided that the duration of release has to be disregarded in computing the period of confinement.” However, in the case of Sunil Fulchand Shah v. Union of India (2000), the Supreme Court stated that “a temporary release of the person detained does not change his status because his freedom and liberty have not been entirely restored. “As a result, temporary release on parole cannot be deducted from the maximum imprisonment period.” As a result, the decision in the Poonam Lata case has been overturned.
Through the Divisional Commissioner, the Bombay High Court concluded that parole is a limited legal right afforded to a criminal in the instances of Kantilal Nandlal Jaiswal v. Divisional Commissioner, Nagpur (2019) and Hariom Vijay Pande v. State of Maharashtra (2019). However, in the Home Secretary (Prison) v. H. Nilofer Nisha (2020), the Supreme Court said unequivocally that “the issuance of remission or release is not a right conferred on the prisoner. It’s a privilege that the prisoner can get if he or she meets specific requirements.”
Refusal of parole
Release on parole is a part of the rehabilitation process, and it is intended to give the inmate the opportunity to change his ways and become a useful member of society. Parole is when a convicted prisoner is granted partial freedom or has his or her limitations reduced. The various states have enacted regulations governing the granting of parole based on administrative directives. The government’s parole rules or administrative instructions are completely administrative in nature, and a criminal must approach the relevant government or jail officials in order to be released on parole. In most circumstances, the executive acts mechanically, without using his or her brains or appreciating facts. They refuse parole on grounds such as breach of the peace or the potential that the prisoner may commit a crime while on parole.
An important aspect which the Releasing Authority must bear in mind which was observed in the State of Gujarat v. Patel Raghav Natha (1969), Mansa Ram v. S.P. Pathak (1983) and Lall Chand v. State of Himachal Pradesh (1984) is that it is well established that the reasonable exercise of power inherits its exercise within a reasonable time. The Lall Chand case discusses the distinction between ‘public order’ and ‘law and order’.
As a result, in the case of Kesar Singh Guleria vs State of Himachal Pradesh (1984), it was observed that that “public order” encompasses disorders of lesser severity than those affecting “state security,” and that “law and order” encompass diseases of less severity than those affecting “public order.” In cases involving law and order issues, the proper course is to advise that the request for release be ordered subject to appropriate conditions, such as that the prisoner is monitored during his temporary release and that he be required to report to the nearest police station at appropriate intervals.
The prisoners/convicts listed below may not be eligible for parole under the following circumstances:
- Convicts whose parole release is deemed risky or a threat to national security, or if any other justifiable reason exists, such as a continuing investigation in a severe crime case;
- Prison inmates who have been found to be encouraging major violations of prison discipline or who have been implicated in crimes and offences against the state, such as sedition;
- Prison inmates who have fled from prison;
- The detainee is not an Indian citizen.
Parole as a right
Parole is not recognized as a right in India, despite the fact that it has administrative importance. A prisoner’s claim to parole is not absolute, and prison authorities have considerable discretion in granting parole to that prisoner. However, parole is considered a right for prisoners by a number of international accords and organizations. For example, the European Court of Human Rights has created extensive jurisprudence on the subject of parole, as some justices feel that an irreducible life sentence (life without the possibility of parole) would be in violation of the norm of human dignity. Some state parties should alter their laws to allow for parole, according to the African Commission on Human and People’s Rights.
A recent Supreme Court decision in Ashfaq v. State of Rajasthan (2017) sheds some light on India’s parole laws. The Court in this case observed that parole is the conditional release of a prisoner based on good behaviour and the need that the prisoner report to the authorities on a regular basis. It is simply a postponement of his sentence for a period of time, with the severity of the punishment remaining unchanged. The ratio decidendi in Vasram Gagji vs. State of Gujarat and Ors. (1992) of the Gujarat High Court reads, “Rejection of parole leave shall not be admissible if it is violating prison justice.”
The Court in Asha Ram v State of Rajasthan (2012) analyzed the Superintendent of Police’s report and determined that it was ambiguous and uncertain. “It is well understood that the goal of parole is to make the necessary steps to rehabilitate a convict-prisoner in the mainstream of society,” it stated. The authorities must ensure the maintenance of law and order and the avoidance of a breach of peace, but the petitioner cannot be denied parole where he is otherwise eligible and entitled.” Thus allowing his 20 days of release on parole.
In the case of Natia Jiria v. State of Gujarat (1984), it was observed that though no prisoner has a legal right to furlough, the regulations apply to all prisoners equally, thus when one prisoner is granted furlough, it cannot be denied to another.
It was held in Kesar Singh Guleria case(supra) that the most important consideration that the Releasing Authority will always keep in mind is that the right to be released on bail or furlough, as the case may be, upon fulfilment of the other conditions is not lost simply because the prisoner is unable to post a security bond or surety bond due to his financial situation.
The Punjab & Haryana High Court granted parole to a murder offender in a recent case of Mohd. Sabir v. State of Punjab and Ors. (2021), stating that parole is a state-given privilege that cannot be revoked for arbitrary grounds.
Incidents of misuse of parole
While the concept of parole has been highlighted and re-pressed by the judiciary and penologists alike in order to decrease the negative aspects of prison life, the question of whether parole actually serves a function or merely acts as a method of emigration arises. The recent case of Manu Sharma garnered national outrage at haphazard jail management and an even more haphazard State Government, which granted and vociferously supported a convict in the Jessica Lal murder case.
Bibi Jagir’s Kaur is another example. Bibi Jagir was sentenced to prison for her role in the murder of her daughter. The charges of murder against her had been dismissed and she was acquitted in 2018. She was given a five-year jail sentence. After only four months in prison, she was given parole. She was said to have received preferential treatment because she was a former Punjab Cabinet Minister.
Bitti Mohanty is the most recent parole case. In this instance, the convict, the son of a DGP, Orissa, was found guilty of raping a German national. He was sentenced to seven years in prison as well as a fine. He was allowed fifteen days’ parole in November 2006 to visit his ill mother. His father stood as his surety at the time. He escaped soon after, and his father pretended to be unaware of his movements. After a seven-year period, the police were finally able to apprehend him in Kerala in March 2013, based on a tip received by the police. By that time, the accused had changed his name and refused to confess his true identity as Bitti Mohanty.
Dr. Jalees Ansari, also known as Dr. Bomb, was recently released on parole by the Supreme Court after being convicted in the Ajmer blasts, Jaipur serial blast, and Malegaon blast cases. He was accused of plotting and executing over 50 bomb blasts across the country since the early 1990s and was presently serving a life sentence. He was last seen on January 16, 2020, when he was meant to report the next day.
Parole also gives a criminal a perilous opportunity to participate in criminal activity while on probation. The appellant killed his first wife and was serving a life sentence in Saibanna v State of Karnataka (2005). He was freed on parole for a month during which time he murdered his second wife and child, inflicting up to 21 injuries on their bodies. The Supreme Court agreed that the case at hand was a “rarest of rare situations” featuring pre-planned, horrific murders without provocation and that death was the only just penalty. In another case, Krishan v State of Haryana (2013), a life sentence was handed down for a murder committed while the defendant was already serving a life sentence and on parole.
Penalty for misuse
The temptation to abuse parole may be reduced if stringent legal sanctions were imposed. A parole jumper faces a term of up to two years in jail under the legislation. This statement should be read in order. Parolees who take advantage of the privilege and commit a crime while on leave should be prevented from receiving parole in the future. Such crimes can be avoided by issuing a warning to potential victims and local police, who can then increase patrols in the area. The Ministry of Home Affairs has released guidelines for States for grant of parole and furlough.
Suggestions to overcome the misuse
It would be utopian to completely avoid the misuse of most existing laws, and the same might be said about parole. Liberal legislation, on the other hand, is critical since it is also vital to have a more reformative criminal justice administration system. Despite the lack of a perfect procedural application of the parole law, a balance could be struck if specifically dedicated authorities are formed to oversee the grant of parole and manage its administration. In the United States of America, a similar model is used.
If the issuance of parole is based on a number of factors and is verified by multiple agencies, and each criminal requesting parole is subjected to a high level of scrutiny, misuse could be limited to a large extent.
Having multiple authorities with the necessary resources to undertake the necessary assessments, background checks, and so on could be a means to avoid the abuse of a permissive parole law.
Furthermore, if a parolee commits a crime while on release, a provision prohibiting the parolee from obtaining parole in the future could instil fear and, to some extent, prevent such mishaps. The Sashastra Seema Bal Act, 2007, included a provision along these lines as well.
COVID-19 pandemic and the grant of parole
The life-threatening coronavirus is infectious. Diabetes, hypertension, chronic respiratory disorders, cardiovascular diseases, and old age put them at greater risk. In overcrowded areas, the virus’s ability to propagate increases. As a result, inmates across the country applied for bail extensions and interim bail/paroles. Given the state of India’s prisons, many people were at risk of contracting this lethal infection. In view of this, the Supreme Court of India issued an order directing states and union territories to release prisoners on parole as soon as possible, taking into account the nature of the crime committed.
Prisons in India are prone to serving as hotspots for the transmission of the virus since they are unsanitary and overcrowded. The Supreme Court had made a key ruling in this regard with its Parole order, but there were several issues that this order carried with it. The first and most serious worry in this regard is the poor classification system for prisoners who will be released on parole. According to the rule, convicts must be released based on the seriousness of the crime they have committed or the length of time they must serve their sentence.
When considering the primary cause of this problem, namely the disease, it’s important to consider the prisoners’ age as well as the fact that some of them may be suffering from underlying illnesses that put them in danger of contracting the virus. Despite their age and health difficulties, this group of convicts who most need to be released may not be entitled to it under the terms of the order. They can only be released if they meet certain conditions, like the gravity of the crime they committed, the severity of the penalty, and so on. Furthermore, the ruling did not require the state to provide the parolees with necessary transfer facilities.
The decree stated that it is up to the states to “choose which class of prisoners can be freed on parole,” but it also stated that the decision must be based on “the type of the offence, the number of years to which he or she has been sentenced, or the severity of the offence.” With these statements, the Supreme Court’s order clearly binds the States and High Courts to the above-mentioned defective criterion for determining whether or not to grant parole.
As a result, various issues occurred, prompting a Public Interest Litigation in the Bombay High Court to challenge the classification as being in violation of Article 14 of the Indian Constitution. It’s crucial to remember the court’s decision in the case National Alliance for People’s Movements Through its National Convener and Others v. the State of Maharashtra Through its Additional Chief Secretary and Others (2020). In light of the pandemic, the question of whether inmates were entitled to emergency parole as a right was considered, and it was determined that because there was no “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 inmates.”
Response to Supreme Court’s order by different states
Over 22,000 prisoners were released by the states in an initial response to the SC’s order on the pandemic as per the report released by the Commonwealth Human Rights Initiative. A lot of states issued orders in response to the Supreme Court’s order of consideration of releasing the prisoners on parole in light of the COVID-19 pandemic. The High Powered Committee appointed by the UT of J&K suggested the J&K High Court that “a person who has been convicted in one case and has served more than ten years in prison (eight years and five months in the case of a woman), except in cases involving militancy, the NDPS Act 1985, the POCSO Act, or crimes against women, acid attacks, or foreign nationals, can be considered for special parole.”
Because of the “unique circumstances” of a nationwide lockdown, the Allahabad High Court and the Rajasthan High Court disregarded the requirement that each offender post two surety bonds before being released on parole, stating that “the purpose of the order of parole shall be frustrated.” The Rajasthan High Court affirmed the classification of offenders for the purpose of granting parole based on the type and severity of the crimes they committed. “Special parole can be granted to some categories of inmates,” the court concluded, “and such rider cannot be considered to be unconstitutional if the benefit is not given to individuals who have been convicted for offences affecting the State and for grave offences.” The Rajasthan High Court recently in Manu vs State of Rajasthan (2021) dismissed a Public Interest Litigation (PIL) Petition seeking to extend the benefit of parole to murder convicts, stating that the High-Powered Committee is to frame the necessary policy for the release of prisoners on parole due to the COVID-19 pandemic in accordance with the Hon’ble Supreme Court’s directions.
The UP High Power Committee had asked the Court to extend the interim bail of 14,854 UTPs for another eight weeks on 27 May 2020. On June 9, 2020, the High Court of Madras revoked the parole orders of 11 convicts who were released from jails following an order by a coordination bench dated March 26, 2020, to decongest prisons in the wake of the COVID-19 outbreak.
The Bombay High Court quashed and set aside the orders of the Superintendent of Kolhapur Central Prison denying three applicant convicts parole, stating that the amended parole rule, which states that convicts with a maximum sentence of more than 7 years may be considered for release on emergency parole if they have returned to prison on time on their previous two releases, is only applicable if the convict has returned to prison on time on the previous two releases. This order was later reiterated in Milind Patil vs the State of Maharashtra (2020) In another matter before this Court, it observed that unless the Court has clearly stated that the parole period will not be extended beyond that time, the authority must proceed on the assumption that the parole period would be automatically extended.
A full bench of the Bombay High Court in the case of Pintu vs the State of Maharashtra (2020) has ruled that a prisoner convicted under the Protection Of Children From Sexual Offences Act is not entitled to the benefit of emergency (COVID-19) parole as per a government notification dated May 8, citing the High Court’s decision in Sardar s/o. Shawali Khan vs. The State of Maharashtra & Anr (2020).
The Supreme Court had extended AG Perarivalan’s parole for a week and ordered the state of Tamil Nadu to provide an escort for his medical tests. Perarivalan was convicted in the 1991 assassination of former Prime Minister Rajiv Gandhi.
For the purposes of obtaining the benefits of the extension order issued by the Full Bench of the Delhi High Court, no distinction may be made between convicts who were released on parole by the jail authorities and those who were granted parole by the court as observed in Pradeep vs. the State of Delhi (2020). Further, the High Powered Committee of the Delhi High Court met on 6th May 2021 to discuss affirmative and effective steps to prevent the outbreak of COVID-19 inside jails and to ensure social distancing inside prisons by identifying and determining the class or categories of prisoners who can be released on interim bails or paroles once again, in light of the recent surge in COVID-19 cases.
On May 11, 2021, the High-Powered Committee (for the state of Uttarakhand & Haryana) gave 90 days of parole to offenders who had been granted parole before, in compliance with a Supreme Court of India order dated May 7, 2021(supra). It’s worth noting that the Supreme Court ordered the High Powered Committee of the States to release all of the detainees who had been released previously under the Supreme Court’s order dated March 23, 2020, as soon as possible, subject to certain circumstances (in addition to considering fresh release).
Instances of refusal by prisoners
Since the Supreme Court’s order of releasing the prisoners out on parole was passed, the States have started releasing them. However, there have been notable instances where the prisoners are refusing to be released citing various reasons such as lack of healthcare facilities outside the jail, lack of livelihood amid the pandemic, lack of basic necessities like food due to poor family background, wrap up the jail time as soon as possible, etc.
At least eight prisoners in Mysuru Central Jail had refused to return home on the 90-day release provided to eligible inmates in the wake of the second COVID-19 outbreak to help decongest prisons. They claim that the risk of catching the virus is higher outside and that they are concerned that they would be unable to earn a living due to the lockdown.
Most people would go to any length to avoid going to jail. However, 21 convicts in nine Uttar Pradesh jails have written to authorities stating that they do not desire parole since staying detained is safer and healthier for them during the COVID-19 pandemic.
Despite being qualified, at least 26 prisoners incarcerated in Maharashtra jails have refused to seek immediate release. According to the minutes of a conference held in May of a state group intended to discuss methods to decongest jails during Covid, they are “not interested in being temporarily released.”
Parole is unique among all the rehabilitative measures used in the criminal justice system since it is not a right like bail, but rather a suspension based on the promise of good behaviour. India’s penal laws were enacted during a period when neoclassical criminology was popular, and forceful and punitive types of punishment were thought to be more effective in deterring and preventing crime. As a result, concepts like parole have been difficult to accept. Furthermore, because this idea was/is absent from the Code of Criminal Procedure, 1973, it was argued that when society began to modernize and recognize the necessity for liberal expression of the procedural law, separate states and Union Territories might come up with their own parole legislation. With heightened understanding, society is moving toward more liberal and rehabilitative types of punishment. As a result, codifying the parole law and ensuring its uniform application across India is critical.
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