Parole In India – A Privilege, Not A Right - A Critical Analysis
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Category: General Law
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PAROLE IN INDIA – A PRIVILEGE, NOT A RIGHT: A
CRITICAL ANALYSIS
Mansi Govindswamy, LL.M. (Specialization in Corporate Law), D.E.S’s Shri. Navalmal Firodia Law College, Pune
ABSTRACT
A convict's entitlement to parole is not guaranteed, as it is not acknowledged
as a legal right in India, despite the circumstance when the prisoner attempts to approach the relevant government or Jail officials, the executive may arbitrarily deny the release on parole for weak reasons. As an outcome of worst conditions of treatment faced by the prisoners during their imprisonment in India concurrently with the reformative trends setting up momentum in the field of Penology around the world, it resulted in reform in prison administration in the latter half of the twentieth century. Presently, prisoners are released on parole on the grounds viz. , Death, marriage, sickness, property dispute or for any other sufficient reason. Parole is one of the methods that assists in the rehabilitation of the inmate by reinstating him in the community to help him transition at ease on final discharge.
Administration of parole in India lies with the Parole Board which is quasijudicial in nature and faces political pressure, suffering from executive’s arbitrariness while refusing the grant of parole on insufficient grounds. The lack of explicit policies in parole decision-making leads to inconsistency and subjectivity in granting parole. Thus, granting of the Parole based on clearly defined policies, rather than merely basing the decision on the term of the sentence served or the category of the prisoner can constitute towards building an optimal Parole System. The paper analysis the parole system in India, its administration, challenges, and attempts at ascertaining the inconsistencies in decision making in the prisoner’s rehabilitation process. Keywords: Administration, Executive, Parole, Parole Board, Penology, Prisoners, Quasi-judicial, Reformative
INTRODUCTION
The word Parole is derived from the French Phrase “je donne ma Parole” which means “I give my word”. Parole refers to conditional release of a prisoner, under supervision of a parole officer after having served a specified part of his sentence. On conviction, when the accused is condemned with imprisonment, the prisoner’s liberty is restricted. Now life behind the walls and bars is subjected to the surveillance by the prison institution. The feeling of separation from the family & society, hardships caused due to the overcrowding and treatment of the prisoner without adhering to the Standard Minimum Rules of treatment of the prisoners, it poses an imprint on the personality of the prisoner. There are chances of him turning inhumane. Exprisoners face conundrum when trying to rehabilitate in the society when released after completion of their full sentence for the reasons viz.
, social stigma, disqualification, lack of opportunities, and low self-confidence which compels ex-prisoners to do anti-social acts and give up on leading an upright life as a law-abiding citizen. In such a scenario parole comes to aid as the most popular method of rehabilitation for the inmates, wherein the inmates are released on parole after a part of the sentence has been served as a reformative process to enable the inmate to re-adjust and adapt with the world outside allowing him to prepare for the life after their final release. It helps the parolee to hold up ties with family and society by eliminating the adverse effects of having a continuous prison life. Release on parole is a device that protects the society as well as assists the prisoner by providing an opportunity to transform the prisoner into a law-abiding citizen.
CONCEPT OF PAROLE
Historically the concept of parole was affiliated to the military law wherein on a promise to return the prisoners of war were released subject to certain conditions. Today it has become an integral part of the Indian judicial system. Parole allows a prisoner to serve a part of his sentence while being in the community while maintaining ties with his family under the prescribed parole conditions and supervision of the Parole Board. Parole is a temporary release of a prisoner subject to the parole conditions based on the reformative theory i.e. rather than simply punishing for the convict’s actions, it aims at changing their character and prevent future crimes. Whereas, Parolee is a person who is released from the prison institution before the end of the sentence subject to the conditions and
supervisions of the parole officer. As defined by J. L. Gillin, “Parole is the release from a penal or reformative institution, of an offender who remains under the control of correctional authorities, in an attempt to find out whether he is fit to live in the free society without supervision. 1 Parole aims at bridges the gap between the present mental state and the overall impact on the psychology of the prisoner after the final discharge. Parole allows the prisoner to live a free social life while exercising control over the prisoner which protects the society against any evil acts by the prisoner. In this manner, Parole rehabilitates the prisoner, by assisting him in preparing for his final discharge so as to keep up with the society when set free.
The inmate is released after serving a part of the sentence, and is made sure that the prisoner adheres to the Parole conditions after he is reinstated in the society and is kept under the supervision of the prison authorities. While the inmate is on parole, he still continues to serve his sentence from outside the prison while being in the community. The parole can be revoked at anytime subject to the conditions of the parole or when the existence of the parolee outside the prison poses a threat to the safety of the society.
PAROLE LAWS IN INDIA
The grant of Parole in India is administered by the rules made under the Prison Act, 1894 and Prisoner Act, 1900. The rules of Parole differ across the different states in India. Objectives of Parole Laws: As per Rule 1(A) and 19 of Prisons Rule 1959 are § Rehabilitation § Maintaining ties: with his family and community § zest for life: Develop a sense of hope § Self – Confidence: There is a life beyond prison
1 GILLIN J. L., CRIMINOLOGY AND PENOLOGY, 339 (3rd ed. 1971).
§ Sabotage: Prevent from the ill-effects of continuous prison life
ELIGIBILITY AND CONDITIONS OF PAROLE
Who is eligible to claim Parole? Release on parole is not an automatic process. A Prisoner cannot claim release on Parole as a matter of right, but is a privilege by which one must apply to the Parole Board. A Prisoner can also waive off the clemency of being paroled. The eligibility to claim parole: According to the 2010 Parole Guidelines, i. The Prisoner must have served at least one year of his sentence excluding the time spent in remission. ii. The Prisoner must have shown consistently Good Behaviour throughout the part of sentence already served. iii. In case of subsequent parole, the gap between the two parole periods must be of at least
6 months, the parolee should not have violated any of the parole conditions, committed
any crime during the previous parole period. Persons not eligible to claim parole: i. Prisoners accused of heinous crime, multiple murders, murder and rape of a child. ii. Prisoners who are not Indian Nationals are not granted regular Parole. iii. Posing a threat to national security. iv. Prisoners against whom investigation in a serious crime is pending. v. Prisoner who violated parole conditions on previous parole release. Conditions of Parole The aim is not just to allow the parolee to rehabilitate but help him transform into a law- abiding citizen. Hence the conditions imposed by the parole board in the parole order helps the parolee
to get moulded, leaving behind his dehumanised behaviour. Apart from the discretionary conditions, following are basic conditions on every parole order. i. The Parolee to maintain good behaviour consistently and refrain from any illegal activity. ii. At regular intervals, the parolee is required to report to the police station at specified intervals. iii. The Parolee must refrain from interfering with investigations or trials if they are a party to any of the ongoing cases. iv. The parolee must notify the authorities of any changes and live at the residence listed in the parole order. v. The parolee is prohibited from committing any crimes while on parole vi. The parolee is not allowed to leave a designated jurisdiction without permission from the parole board. vii.
In accordance with the parole order, the parolee may be obliged to engage in lawful employment and refrain from certain activities. viii. The parolee is prohibited from getting in touch with witnesses, victims, or co-accused individuals in some cases. ix. The parolee must go back to the jail either before or on the day the parole period ends. The Regulations of Parole vary across the different states in India which is up to the Jail Authorities to decide.
TYPES OF PAROLE:
The rules of Parole differ from State to State and are governed by Prison Act, 1984 and Prisoner Act, 1900. The two types of parole can be distinguished as under:
Aspect Custody / Emergency Parole Regular Parole Grounds Emergency circumstances like serious illness, death in the family, marriage of a family member, etc Accident, Marriage, death or Serious illness of a family member, Natural Calamity causing serious damage to family member’s life or property, Delivery of Child by wife of the convict, & to Maintain family ties. Sentence served Emergency circumstance can arise anytime regardless of part of the sentence served. Served at least one year of his sentence. Period It is limited up to 6 hours Cannot be extended beyond 1 Month Exception Foreigners not eligible to be released under custody parole. Prisoners who have committed offences against the state, who are threat to the national security, foreigners. Whereas habitual offenders, convicts committed rape of children are granted parole at the discretion of the Parole Board.
In the US, psychologists and psychiatrists are handed with the task of granting of the Parole after subjecting the inmate to certain tests to determine whether it is a fit case for the grant of Parole.
PROCEDURE FOR OBTAINING PAROLE
1. Petition: Adhering to the eligibility requirements, a convict seeks parole and files a petition
with the Parole Board.
2. Case Report: Jail Superintendent collects the case report (case history, medical report,
behaviour in prison, etc)
3. Report sent to State Government: Decides on the approval or rejection of the application.
4. District Magistrate: In some states it is sent to the Inspector General of the Prison, which
is further forwarded to the magistrate.
5. In consultation with: The District Magistrate in consultation with the State Government
decides on the application.
FACTORS DETERMINING THE FAILURE OR SUCCESS OF THE PAROLE
1. Inclination for Good Behaviour:
As a prerequisite to the parole system being on good behaviour consistently is a must. Therefore, any deviation from the parole conditions on part of the parolee, on scrutiny by the parole staff, resultantly the parolee shall end up as a prisoner.
2. Crime against person/ related to property:
Offender committed for crime against person react more favourably than those committed for crime against property since the second fall back on recidivism.
3. First Time Offenders:
Recidivist sooner or later are brought back to the prison due to their tendency of deviating from the parole conditions as opposed to the first-time offenders who tend to grow attuned
with the parole conditions.
4. Family Circumstances:
A prisoner with a family would respond positively to the rehabilitation process because of
his responsibility towards his family and the drive to lead a healthy family life as opposed to the ones without a family.
5. Social Status:
Because of their educational background, inmates from higher income brackets react will to the system, considering that that they might have committed the crime in the heat of the moment.
PAROLE VIOLATION
The violation of Parole condition without sufficient cause constitutes for a prison offence u/s 48-A of the Prisons Act, 1894 and shall be proceeded against under the appropriate Parole law. Parole to be a success it is essential for the parolee to adhere to the conditions on which he was released, any divergence form it results into the return of the parolee to the prison. Firstly, arrest warrant is issued to the parole violator following arrest, without a further need of a fresh trial, he is reinstituted to the prison by the parole authorities. A “parole-violation hearing” is held wherein he is given an opportunity to defend himself. On failure of coming up with a reasonable justification for his behaviour he is placed back in prison to serve his unexpired term of sentence.
ELEMENTS THAT CONSTITUTE FOR AN OPTIMAL PAROLE SYSTEM
Parole as a reformative process employs supervision and assistance as a tool to help the prisoner re-adjust to the society before their final release. It would be misleading to consider that liberty alone would be enough for the survival of the parolee outside the prison. The Parole staff must ensure that the parolee makes best use of the opportunities present before him. To constitute an optimal Parole system, it is essential to balance the release of the prisoner with the safety and security of the society. Therefore, to achieve such a system it is essential to have robust supervision, assistance mechanism, proactively preparing the parolee for the parole administration. Additionally, providing respectable employment opportunities with conducive
environment that eliminates tendencies that holds the parolee from being a law-abiding citizen and most importantly co-operation from the society in such a process is a must. Besides the post parole treatment, the criterion for deciding the parole must be explicit and be based on the parolee’s favourable response to the reformative process. The tacit policies determining release on parole must not be based on the term of the sentence or the category to which the convict belongs. Ultimately, the Parole Board’s decisions must not be swayed by political pressures and the board must consist of personnels who are competent for perform their functions without any bias.
LEADING CASES OF PAROLE IN INDIA
In the year 2000, In the case Sunil Fulchand Shah v. Union of India, the Supreme Court ruled that parole is a temporary and conditional release rather than the suspension or termination of a convicted individual’s sentence. The court explained that the prisoner continues to be in legal custody while on parole, making a distinction for determining the legal standing of parole and how it affected a prisoner’s overall sentence. In the year 2016, in the case State of Gujarat & Anr v. Lal Singh @ Manjit Singh & Ors, the Supreme Court ruled that parole is a discretionary measure administered by the appropriate authority in each case, not a prisoner’s inalienable entitlement. The court stressed that parole is not a right for inmates convicted of major crimes, especially those whose release would jeopardise national security or public order under organized crime legislation like MCOCA.
Subsequently in the year 2017, In Asfaq v. State of Rajasthan, parole was denied based only on the seriousness of the offence. The court ruled that parole could not be asserted as a right. In this case because it included a serious and heinous offence, the Supreme Court decided that the nature of the offense solely should not be grounds for denying release. Rather, before deciding, the authorities should assess the offender’s behaviour, chances of rehabilitation, and possible threats to the society. The ruling reaffirmed the need to balance public safety and reformative justice while granting parole. The courts have often ruled that parole is a discretionary measure given in the light of the offender’s behaviour, the nature of the offence, and the potential impact on the society rather than an absolute right.
Parole is a rehabilitative measure; however, it cannot be a privilege, especially for people convicted of major crimes like organised crime and actions that threaten
public order, according to the rulings. The courts underlined the need for authorities to use their discretion with care, making sure that parole decisions find a balance between the rights of the person and larger security and societal issues.
CONCLUSION
In India, the parole system plays a crucial part in the rehabilitation of the prisoners by allowing them to reintegrate into the society before being released. However, the basic goals of parole are often hindered by arbitrary rejections caused by inconsistent decision making, influence from the politicians, and unclear policies. To maintain equity and reduce the possibility of abuse of the discretion by the authorities, a clear and well – structured parole framework is necessary. A more just and efficient system can be developed by strengthening the parole Board’s
independence and establishing clear parole policies. Reforms must focus on eliminating subjectivity from decision making procedures and making sure that parole is granted in accordance with well- defined principles in order to create an ideal parole system.