(I am pleased to present a Guest Post by Mr. Vivek Krishnani, a student in the B.B.A. LL.B. (Hons.) Program at the National Law University, Jodhpur)
Prison management and administration, as a legislative subject, falls under Entry 4 of the State List i.e. List II of Schedule VII to the Indian Constitution. Accordingly, it is in the domain of the State Legislature and governed, mainly, by the Prisons Act, 1894 and Prison Rules, as adopted by the respective states. It is, therefore, for every state to make apt policies and procedures to govern their prisoners in a manner that complies with their human rights and at the same time, does not do away with the safety of the society.
As per the report of the All India Jail Manual Committee 1980-83, prisoners should be sent to prison “at punishment” and not “for punishment”. Unfortunately, the prison rules of some states seem to have been ignoring this subtle difference. These rules have been overlooking the ultimate aim of rehabilitation of the prisoner and his resettlement into the society. In this post, I argue that the policy in some states to completely deny parole / furlough to persons convicted of Rape is completely contrary to this idea, as well as contrary to the fundamental rights guaranteed by the Indian Constitution.
An Insight into Parole and Furlough
To begin with, parole is the release of a prisoner, before completion of the term of imprisonment, on certain conditions which are concerned with the behaviour of the prisoner during the interval of release. The prisoner is required to abide by these conditions and regularly report to the concerned prison authorities for a specified time period.
As regards furlough, it is simply a cancellation of a short period from the term of imprisonment given as a reward to the prisoner for his good conduct. This, generally, happens in case of long term imprisonment wherein a short leave, without having an impact on the completion date. Which amounts to saying, the leave interval gets cancelled from the punishment of the prisoner and he need not undergo the same.
Reformation and Recidivism
Now, the objectives of granting parole and furlough may be looked in to. Placing reliance on the Model Prison Manual which was prepared in 2003, the Gujarat High Court in Bhikhabhai Devshi [AIR 1987 Guj 136] has enumerated the following objectives:
(i) to enable the inmate to maintain continuity with his family life and deal with: family matters;
(ii) to save the inmate from the evil effects of continuous prison life;
(iii) to enable the inmate to maintain constructive hope and active interests in life.”
It can be understood that parole and furlough rules are aimed, mainly, at humanising the prison system. Such humanisation of the prison system is in line with the idea of reformation which is as much a cardinal principle underlying punishment of offenders as retribution or deterrence. Accordingly, this idea should not be disregarded by going overboard for punishing the offender or deterring potential offenders.
Having said this, countervailing interests of public order cannot be undermined for upholding the objectives aforementioned. In fact, the most common ground to decline parole or furlough is that there is apprehension of breach of peace, in case the prisoner is so released. This brings us to the concept of “recidivism” which means, simply, the habit of relapsing into crime in spite of having administered correctional treatment. Some prisoners, despite undergoing the reformatory measures employed in present-day prisons, show strong recidivistic tendencies. Accordingly, to strike a balance between reformation of prisoners and public order, every state has a detailed set of rules in this regard.
Rules 4(13) and 19(2)(B)(i) of the Maharashtra Prisons (Bombay Furlough and Parole) Rules, 1959 and the constitutional challenge
Now, time to address the primary issue. Rules 4(13) and 19(2)(B)(i) of the Maharashtra Prisons (Bombay Furlough and Parole) Rules, 1959 create an absolute bar to claim release on furlough and parole leaves on the convicts for, inter alia, the offence of rape. Resultantly, while prisoners convicted for murder are entitled to seek parole/furlough, prison rules of Maharashtra have barred rape convicts from requesting the same.
Noteworthy is the fact that the question concerning the constitutionality of such provisions which classify prisoners on the basis of the nature of offences has been discussed time and again by the Indian judiciary. Interestingly, the Supreme Court has, in the cases of State of Haryana v. Jai Singh [AIR 2003 SC 1696] and Asfaq v. State of Rajasthan [(2017) 15 SCC 55], provided completely contrasting opinions and thereby made the issue at hand all the more important for a detailed discussion. While the former upheld such a classification, the latter rejected the same.
Quite recently, the question as regards the constitutionality of the Rules 4(13) and 19(2)(B)(i) itself was raised in Vijay Prahlad Varankar v. Divisional Commissioner [Criminal Writ Petition No. 234 of 2018, Bombay High Court, on October 11, 2018] before the Bombay High Court. However, the Court did not provide any answer for the same. Accordingly, reference could be made to that court’s judgment in Sharad Devram Shelake [2016 SCC OnLine Bom 2448] wherein the provision was tested on the parameter of Article 14. In that case, Tahilramani J. expounded the difference between offences like murder and the offence of rape and upheld the validity of the provision. The explanation, which I find quite objectionable, given by the judge was: “In case of murder only that person against whom the perpetrator has a motive or animus alone is exposed to danger from him and not others. So far as (other offences) are concerned, any victim is a good victim and the entire society is exposed to the risk. It is, therefore, clear that these offences fall in a different category.”
Even if it is assumed that murder and rape are so different, a classification of prisoners on the basis of gravity of the offences committed by them is, in my opinion, should not be decisive for rendering prisoners ineligible for parole/furlough. A person who is convicted of a serious offence cannot, ipso facto, be considered to be unfit for a temporary contact with the society. Hence, in case a prisoner has responded positively to corrective measures undertaken during the course of his imprisonment, he should not be considered as ineligible for seeking parole/furlough from the court notwithstanding the nature of the offence committed by him. Admittedly, the nature of crime cannot be completely ignored and perhaps stricter standards could be set for grant of such leave to such convicts. However, an absolute bar, ignoring the good behaviour and reformative tendencies of a prisoner, simply because he has been convicted for a heinous crime, is not only unrelated to the objective sought but also unjust and inhumane.
Inspiration from Other State Regimes
My concerns with respect to the absolute bar can be better understood when it is seen in light of the prison rules of other states. In particular, the Rajasthan Prisoners Release on Parole Rules, 1958 and the Haryana Good Conduct Prisoners (Temporary Release) Act, 1988 must be looked into.
The Rajasthan rules do specify certain kinds of prisoners, much like the Maharashtra rules. However, as per Rule 14 of the Rajasthan rules the prisoners so specified are “ordinarily” ineligible for parole. The use of the word “ordinarily”, herein, shows that merely because a prisoner was convicted for an offence he doesn’t altogether become ineligible for parole.
Similarly, the Haryana law, which classifies prisoners convicted for certain offences as “hardcore prisoners”, makes a special provision for them regarding their eligibility. Under Section 5A (2) of the Act, the hardcore prisoners who have not been awarded death penalty are eligible for parole in case they have not been awarded any penalty by the Superintendent of Jail and have completed 5 years of their term.
From the foregoing discussion, it can be understood that a prisoner cannot be presumed to relapse into crime simply because the offence he has been convicted for is of a grave nature. Generalising prisoners on the basis of the offence they have committed is undesirable in that different prisoners respond differently to the reformative processes they undergo in prisons. Accordingly, absolute bars, resulting from such a generalisation, have not been found in the rules applicable to the states of Haryana and Rajasthan.
Concluding remark
My views are in complete conformity with the observation of the Supreme Court in Charles Sobraj [AIR 1978 SC 1514]: “Imprisonment does not spell farewell to fundamental rights ... Whenever fundamental rights are flouted or legislative protection ignored, to any prisoner's prejudice, the Court's writ will run, breaking through stone walls and iron bars, to right the wrong and restore the rule of law.”
To make rape convicts ineligible for parole/furlough amounts to disrespecting the human in them and the very objective of their rehabilitation into the society. While it is admitted that even a short release of some prisoners is a threat to the society, gravity of the offence committed by a prisoner should certainly not be the criterion for deciding who those prisoners are. Which amounts to saying, recidivistic tendencies should be adjudged from a case-to-case basis as every prisoner is different and correctional measures employed in the prison system have different impacts on each one of them.
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