Guest Post: Parole and Furlough — A Primer

(I am happy to present this guest post by Mr. Pradyuman Kaistha, an advocate practising in Delhi)

If academic or jurisprudential attention was a metric of importance, surely Parole and Furlough have received the unfair end of the bargain. As the only means for convicts to seek temporary release from incarceration, their indispensability towards achieving social reintegration and rehabilitation of prisoners cannot be over-emphasised. In this post, I deal with the basics of Parole and Furlough, flag important differences between these concepts and engage with related practical issues.

Since “[p]risons … and persons detained therein” falls under the State List [Entry 4], each state has its own laws to deal with different aspects of prisons, including Parole and Furlough. Therefore, any discussion of these concepts, must necessarily take place in the context of a particular state, even though the legal regime is broadly consistent. I have focused on the prison rules of Delhi in this post because I practice in Delhi and am familiar with its law on Parole and Furlough. Also, because the law in Delhi is based upon the Model Prison Manual, 2016 prescribed by the Ministry of Home Affairs, and provides a good basis for a more general discussion on issues of Parole and Furlough.

The Delhi Prisons Act, 2000 lays down the broad law pertaining to prisons and confers powers on the State Government to make rules to enforce the provisions of the Act [Section 71]. In pursuance of such powers, Delhi Prison Rules, 2018 have been promulgated by the State Government, and the same expansively and exhaustively lay down the framework for administration of prisons, including the grant of Parole and Furlough. In most other states, there are similar specific Acts and/ or rules to regulate Parole and Furlough.

Parole & Furlough: Meaning and Difference

The Delhi Prison Rules, 2018 define Parole as the temporary release of prisoners for a short period of time so that they may maintain social relations with their family and community in order to fulfil familial and social responsibilities [Rule 1198]. In order to be eligible for release on Parole, prisoners must show the existence of certain grounds which necessitate their release such as marriage in the family, illness/ death of a family member, damage to property or maintaining family and social ties (the most important and commonly utilised ground). These grounds are merely illustrative and not exhaustive [Rule 1208]. Several states such as Punjab, Haryana and Himachal Pradesh do not recognise the term Parole and merely refer to it as “temporary release of prisoner on certain grounds.”

The Delhi Prison Rules classified Parole into two categories: Custody Parole and Regular Parole [Rule 1202]. Custody Parole is distinguished from Regular Parole since Custody Parole can only be granted in emergent circumstances for a maximum period of six hours [Rule 1203]. In the wake of the Covid-19 outbreak, the Delhi Government has introduced a new category of Parole — Emergency Parole — which is intended to decongest jails in emergent situations such as an epidemic or a natural disaster.

The grant of Furlough, in contrast to Parole, is not contingent upon the existence of any specific ground for release. Furlough is granted for a stipulated time as a reward for good conduct in prison and serves as a periodic break for prisoners from prolonged and continuous incarceration. In order to be eligible for the grant of Furlough, the prisoner must have been sentenced to at least five years of Rigorous Imprisonment and undergone three years of imprisonment after conviction [Rule 1220]. In one year, a prisoner can be released on Furlough for a total period of seven weeks; these seven weeks are ordinarily broken down into one spell of three weeks and two spells of two weeks each. [Rule 1221].

The prime distinction between Parole and Furlough, being that Parole is a release of the prisoner for a specific purpose while Furlough is a release to break the continuity of prolonged incarceration as reward for good conduct, translates into the following:

1. The period of release on Parole is not counted as a part of the sentence and a person has to spend extra time in prison to compensate for the period spent out on Parole [Rules 1198]. On the other hand, the period spent on Furlough constitutes a part of the period undergone as imprisonment [Rule 1199].
2. Unlike Furlough (refer to Rule 1220 explained above), prisoners undergoing short term imprisonment are also eligible for release on Parole, since events necessitating release on Parole may arise for any prisoner.
3. As administrative aids towards the rehabilitative goals of prison, Parole and Furlough seek to incentivise good conduct. Thus, good conduct in prison is indispensable for the grant of the Furlough and is a pre-requisite in certain circumstances for the grant of Parole. A prisoner must have earned rewards in the last thee Annual good conduct reports for the grant of Furlough [Rule 1223]. In a similar vein, the Rules mandate that the conduct of a prisoner who was awarded a major punishment or minor punishment for a prison offence must be uniformly good for the last two years or one year respectively, in order to be eligible for Parole [Rule 1210]. However, the Delhi High Court has watered down this rule and held that the said condition is only applicable when Parole is sought to “maintain social ties or for general circumstances and not special circumstances”. Therefore, where Parole is sought for a special circumstance like a death/ marriage in the family, the said pre-condition of good conduct is inapplicable.

Differences between Parole / Furlough and Interim Bail

Interim Bail (temporary bail granted for a particular purpose such as medical emergency / death in the family or granted during the pendency of the Bail Application) may seem akin to Parole. However, Parole and Furlough fundamentally differ from Interim Bail for the following reasons:

1. Bail / Interim Bail, in non-bailable cases, is granted by courts while Parole and Furlough applications are processed by Jail Authorities and granted by the Government. Therefore, grant of bail is a judicial function while the grant of Parole and Furlough is an executive function (which is, of course, amenable to judicial review).
2. Only convicted prisoners (and not under-trials) can avail Parole and Furlough, and only under-trials (and not convicts) can seek grant of Bail / Interim Bail. Thus, both categories of prisoners (viz. undertrials and convicts) have distinct and independent remedies for seeking their release. However, there are two exceptions to this Rule. First, Custody Parole may be granted to an under-trial by the concerned court in emergent circumstances. Second, convicts whose appeals are pending before a High Court can seek Suspension of Sentence under the Cr.P.C. and may seek release from custody during the pendency of their application. Note, that this category of convicts is consequently barred from seeking release on Parole and Furlough. [Rule 1209]

Important Practical Issues

The following important practical issues emerge when prisoners exercise their right to seek Parole and Furlough:

Eligibility for Furlough

Prisoners such as those convicted for sedition, terrorism or offences under the NDPS Act are per se ineligible for release on Furlough [Rule 1224]. Such ineligibility is routinely enforced and has recently been upheld by a Single Judge of the Delhi High Court in Deepender Kumar @ Chotu v. State, without properly considering a previous decision of a Division Bench of the Delhi High Court in Dinesh Kumar v. Govt. of NCT of Delhi.

In Dinesh Kumar, the constitutionality of Clause 26.4 of the Parole / Furlough Guidelines, 2010 (the erstwhile law in Delhi on Parole and Furlough), which rendered prisoners convicted of robbery, dacoity, arson, kidnapping, abduction, rape and extortion ineligible for Furlough was challenged before the Delhi High Court. The Court held that the said clause failed to stand judicial scrutiny as “exclusion per se making them ineligible at the outset even from consideration to obtain furlough becomes discriminatory and arbitrary and it cannot have any rational nexus.” Although ineligibility under Rule 1224 of the Delhi Prison Rules, 2018 is attached to prisoners convicted of a different set of crimes (viz. sedition, terrorism and offences under NDPS), the ratio in Dinesh Kumar must extend to Rule 1224 as well. Therefore, prisoners convicted of sedition, terrorism or offences under the NDPS Act cannot be per se ineligible for release on Furlough.

Eligibility for Parole

As per Rule 1211 of the Delhi Prison Rules, prisoners who are per se ineligible for release on Furlough fall within a broader category of prisoners, who “shall not be granted” Parole, unless “special circumstances” exist for grant of Parole. As per the rule, prisoners convicted under POCSO, Prevention of Corruption Act, multiple murders, murder after rape, and other enumerated heinous crimes also fall within this broader category. Although, such prisoners are not per se ineligible from applying for Parole, their applications seldom succeed in practice due to the high legal threshold in place.

In this regard, it is important to take note of the judgment of the Supreme Court in Asfaq v. State of Rajasthan. Here, the Supreme Court expressly overruled a finding of the Rajasthan High Court that in cases of heinous crimes “parole cannot be claimed as a matter of right” and held that “the conviction in a serious and heinous crime cannot be the reason for denying the parole per se.”

Rule 1211 must be interpreted in light of the judgment of the Supreme Court in Asfaq. A conjoint reading would show that although “special circumstances” must exist for grant of Parole as per the Rule, this does not lead to the conclusion that an application seeking Parole can be dismissed merely because the prisoner has been convicted of heinous offences. Therefore, some additional grounds must exist to deny Parole to such prisoners. This would fall in line with the need to adopt an individualistic approach to Parole, so as to afford to every convict an opportunity of reformation and rehabilitation.

Relevant Factors for release

It is impossible to exhaustively enlist all factors taken into account in adjudication of Parole and Furlough applications. However, there are certain factors that are granted more weightage than others. First is the nature of the offence and criminal antecedents of the prisoner. Persons convicted for heinous offences or involved in multiple offences are unlikely to be released on Parole or Furlough. Second is the period of sentence undergone. Prisoners who have undergone a significant portion of their sentence generally find it easier to secure release on Parole/ Furlough. Third is the prior conduct of the prisoner, which includes conduct in prison and conduct during previous instances of release on Parole / Furlough. Applications of prisoners who have jumped parole, misused the grant of Parole/ Furlough or have committed offences in prison are unlikely to succeed. On the other hand, persons who have a uniformly good prison conduct and have surrendered on time are more likely to be released on Parole / Furlough. Fourth is whether the person has roots in the society.

In case of Parole, the ground for release is a pertinent factor, and events such as death in the immediate family / medical emergencies are likely to be viewed sympathetically.

Time period for processing applications

Rule 1217 mandates that an application for Parole shall be decided within four weeks. In case of Furlough, Rule 1229 states that the Superintendent of Police shall ensure that the application for Furlough is cleared from all channels within four weeks.

Applications for Parole and Furlough are rarely disposed of in time. There is further delay, often extending to months, in disposal of Petitions filed before the High Court challenging orders refusing Parole / Furlough or seeking a modification of such orders. One reason for this is the standard practice of the Delhi High Court to call for a Status Report from the State to verify the address of the prisoner. This exercise can be avoided as the procedure for deciding a Parole / Furlough application itself requires the Superintendent of Police to seek a report from the police station of the last known address of the prisoner or of the police station where the prisoner wishes to stay. These reports are to be furnished in two weeks and in a specified format (Rules 1213 and 1226). Therefore, the address of the prisoner already stands verified before their Parole/ Furlough application is decided.

Release on Personal Bond

A very critical set of rules that is often overlooked in practice is Rules 1219 and 1231. In case the release of a prisoner on Parole / Furlough has been ordered subject to the condition of furnishing a surety and the prisoner is unable to comply with this condition, it is mandatory under Rules 1219 and 1231 for such prisoners to be released on a personal bond (provided this is not the first time they are being released on Parole / Furlough). These rules are rarely implemented in practice and the implications of such non-compliance are grave. Despite being eligible for and obtaining Parole / Furlough, indigent prisoners or prisoners that are unable to procure a local surety are not released on personal bond. The injustice of the same is underlined by the fact that the inability to furnish a surety is very often a product of prolonged incarceration itself.

Conclusion

Conviction for a crime and subsequent imprisonment do not swallow up human dignity and fundamental rights of persons. Parole and Furlough are the most immediate and basic rights available to prisoners, and must not be viewed as benefits doled out by the State but as rehabilitative processes that are essential to any prison system. It is essential to remember that an individualistic and humane approach lies at the heart of rehabilitation. These foundational principles cannot be lost sight of and must constitute our understanding and enforcement of provisions on eligibility, application process and conditions for release on Parole and Furlough.