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.

Guest Post: An Argument against the Absolute Bar on Grant of Parole / Furlough to Rape Convicts

(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.