A Decision-Making Process or Institutionalized Discrimination? – The Criminal Law Blog
-Mudrika Agarwal
In this article, I examine offence-based restrictions on parole and furlough, arguing that it currently institutionalises discrimination. To address this, I put forward a case for an individualised, rehabilitation-focused decision-making process to decide parole and furlough applications.
The grant of parole and furlough is largely based on the interplay of two significant considerations – rehabilitation & reformation of the convict (forward-looking principles); and public interest & safety. Parole is a temporary release of a prisoner for a short period in exigencies to fulfil familial obligations. On the other hand, furlough is a temporary release from incarceration granted based on good conduct and serves as an incentive for maintaining discipline in jails.
Parole and furlough are only selectively granted to prisoners based on pre-defined eligibility norms under various state jail manuals. Predominantly, prisoners who are considered ‘dangerous’ or who engage in activities ‘prejudicial to public peace and order’, including those involved in grievous crimes such as assault, rioting, or public disorder, or those convicted of heinous offences such as dacoity, terrorist activities, smuggling, murder, and rape, are barred from applying for parole or furlough, as the case may be (a few examples of state prison manuals laying down offense-based restrictions can be found here – Andhra Pradesh, Maharashtra, Punjab, Rajasthan, Tripura, Goa, and Delhi). In this piece, I put forth the argument that the applications of parole and furlough of certain prisoners being barred under state prison manuals based on the crime the convict is sentenced for is institutionalised discrimination. This is extremely counterproductive to the reformation as it disincentivises inmates from completing rehabilitative programmes and tasks that form the metric for the grant of parole and furlough.
Additionally, the blanket restrictions of eligibility based on the nature and gravity of the offence fail to meet the objective of the framework of parole and furlough, leading to an untenable classification among convicts violating Article 14 of the Constitution. The classification is untenable because (1) there is no uniform criterion followed by states to determine the offences for which convicts would be barred from the parole and furlough framework; and (2) such classification is counterproductive to the objectives of reformation and rehabilitation that themselves form one set of ideals on the framework of parole and furlough. The grant of parole and furlough should be a ‘decision-making process’ rather than being justified by inflexible prison rules that not only lead to the stigmatisation of convicts but also close the doors of one of the channels to direct rehabilitation. Construing the grant of parole and furlough as a ‘decision-making process’ signifies an individualistic inquiry in every case which takes into account several factors that primarily include conduct during imprisonment, the family circumstances of the inmate and the tendency to reform.
Judicial Jugglery on Offence-based Restrictions on Parole and Furlough
Indian courts have had an inconsistent approach to the denial of parole and furlough based on the gravity of the offence. Earlier, Courts placed exclusive importance on only one of the balancing factors of the framework of parole and furlough, i.e., protecting the public from criminal tendencies. There seemed to be an understanding that the more grievous the offence, the greater the need to deny parole and furlough to protect public safety. The view was dismantled by Justice A.K. Sikri first in Dinesh Kumar (2012) and then in Asfaq (2017) by highlighting the significance of the rehabilitative aspect of such temporary releases. However, the legal position remains unchanged due to the bar explicitly provided in Jail Manuals.
Non-uniformity in offences
In Juvan Singh (1972), the categorization of prisoners barred for parole and furlough if convicted for offences under Sections 392 to 402 of the Indian Penal Code (now Sections 309 to 314 of the Bharatiya Nyaya Sanhita) was challenged before the Gujarat High Court. The Court rejected the challenge and upheld the rules by opining that the “state cannot be unmindful of the legitimate interests of safeguarding the community.” The classification of such prisoners was taken to have a reasonable nexus to its objective because “such crimes by their very nature are habit-forming and repetitive”. The Court held that habitual offenders are less likely to respond to corrective measures. On the issue of the non-inclusion of murder in the list of offences, the Court drew a distinction between crimes committed against an individual and crimes committed against the society at large. The ground taken to justify the offence-based restrictions is the ‘publicity of crime ’, and since the restriction was placed only on crimes that have the potential to affect society writ large, the vires of eligibility rules was satisfied.
Haryana (Section 6(2) r/w Section 2(1)(g)(i), Rajasthan (Rule 16) and Pondicherry (Section 831) similarly bar convicts sentenced under Section 392 to 402 of the Indian Penal Code, among other grounds, from being considered for parole and furlough; while on the other hand Himachal Pradesh, Karnataka, Mizoram, Tripura and Delhi do not have such a restriction. Tripura (Section 503(f)), Goa (Section 1216) and Himachal Pradesh (19.07.vi) also bar the grant of parole and furlough to inmates suffering from mental illness. Goa (Section 1216) and Rajasthan (Rule 16(2) also restrict it for inmates convicted under offences committed against children. Haryana (Section 6(2) r/w Section 2(1)(g)(viii), Jammu & Kashmir and Tripura (Section 503(h)), Delhi (Rule 12) extend the bar to prisoners sentenced for offences endangering national security. Vague terms without corresponding definitions such as “habitual offenders” and “prisoners considered prejudicial to public peace” have been used in the Prison Manuals of Pondicherry (Section 831), Jammu & Kashmir, West Bengal (Section 62(4)(a) r/w Section 2(f)) and Mizoram (Section 19.07(i)) to restrict the grant of parole and furlough. Such diverse classifications without a clear framework cannot be justified on the grounds of intensity and publicity of crime, since it directly strikes at the reasonable classification doctrine under Article 14 of the Constitution.
The Supreme Court in Vijay Narain Singh (1984) and Pappu Khan Nawab (1990) have defined habitual to connote some degree of frequency and continuity. An offender is deemed habitual when the person, by inward disposition, is accustomed to lead a life of crime, which makes the inmate dangerous to society in general. The terms ‘habitual offenders’ and ‘prisoners considered prejudicial to public peace’ have the potential of being interpreted inconsistently by different courts. It can lead to discriminatory application based on factors like caste, socioeconomic background, personal biases and preoccupations held by law enforcement agencies. The Delhi High Court in Sudhir Sharma (2018), held that the broad and blanket categorization of a convict as a habitual offender leaves scope for the authorities to decide what type of offender the convict is, which amounts to granting whimsical and arbitrary power to the concerned officials, without any guidelines regarding its exercise.
The Policy Shift: Challenge to Institutionalized Discrimination
The division bench of the Delhi High Court in Dinesh Kumar (2012) entertained a petition that challenged the Delhi Parole/Furlough: Guidelines, 2010 on the ground that barring prisoners convicted for robbery, dacoity, arson, rape, extortion was illogical and arbitrary when in more serious offences like murder or even multiple murder cases; furlough or parole could be granted. It was submitted that conduct in prison is a criterion that is solely sufficient to review a plea for parole and furlough when these measures are placed to provide a more humanistic approach towards prisoners.
The Court differed from the reasoning adopted by the Gujarat High Court in Juvan Singh and stressed the importance of human dignity. The Court held that generalising the tendency to commit crime or recidivism and barring prisoners from claiming furlough and parole at the outset on this presumption was invalid. Individual applications should be considered on a case-to-case basis as part of a decision-making process on the criterion of good conduct in prisons assessed through reports from various jail authorities like counsellors, psychiatrists and other Jail officials in close proximity. Additionally, stricter standards to discern parameters of good conduct for inmates charged with grievous offences can always be adopted. The Court also recommended adopting the clinical or statistical method to predict the propensity of recidivism. The provision was struck down as violative of Articles 14 and 21 of the Constitution because it took away the prisoners’ right to be considered for the grant of furlough.
However, other High Courts, without any regard to the above-mentioned principled framework, continued to adopt a restrictive approach in granting parole and furlough. In Subhash (2013), the main contention before the Bombay High Court was whether furlough leave is to be refused to prisoners convicted for offences such as dacoity, terrorism, kidnapping, and smuggling, including those convicted under the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS’) because it has a definite nexus with the objective of public interest. The Court considered the nature of the offence as a germane and relevant factor while considering an application for parole and furlough.
The Dinesh Kumar judgment by the Delhi High Court rightly laid down a progressive and principled framework for granting parole and furlough to prisoners which aligns with the rehabilitative goals behind granting these measures. It fosters a subjective assessment to consider the individual circumstances and conduct of each prisoner and dismantles the flawed presumption that the gravity of the offence or threat to public safety alone is an accurate predictor of recidivism. In Asfaq (2017), the Supreme Court, on similar grounds to those of Dinesh Kumar (2012) held that the mere nature of the offence should not be a factor in denying parole/furlough outrightly.
In Sudhir Sharma (2018), the Court proactively did not take into account the criminal propensity the petitioner was likely to have two decades ago when he was named as a ‘habitual offender’. Following the reasoning adopted in Dinesh Kumar, the Court held that when there is evidence of good conduct, participation in prison activities and no abuse of liberty, it would render him an eligible candidate for consideration.
In contrast, in KK Ali (2018), the petitioner was denied parole because he was charged for an act relating to national security. While accepting that parole cannot be denied merely on the ground that the crime committed by the convict is heinous, the Kerala High Court ironically chose to differentiate Asfaq, emphasising that when a statute explicitly prohibits parole, such prohibition may take precedence. This has the potential of leaving Asfaq and Dinesh Kumar redundant if such rules continue to exist.
Realignment of the Framework with its Objectives
The role of the State while classifying prisoners based on the nature of the offence for the provision of parole and furlough leads to typecasting convicts “through guidelines which are inflexible, based on their crime committed in the distant past”. The offence the prisoner is charged with cannot be the sole eligibility metric since the same undermines the forward-looking systematic principles of such correctional measures. It is imperative that state prison manuals undergo a comprehensive revision to align with the principles established in the Dinesh Kumar judgment. The Courts must take decisive action to halt the continued application of these untenable provisions to create a more equitable and rehabilitative-focused system.
The author is a fifth-year B.A. LL.B (Hons.) student at National Law University, Delhi.
