Parole Is The Rule, Denial An Exception—Justice Beyond Bars

Parole rules are generally incorporated into Jail Manuals or established through other state-specific laws. Each state has its own laws governing prisons and jails, which set out detailed regulations on parole, furlough, remission, and other aspects of prisoner management. These regulations are framed by the State Government under Section 59 of the Prisons Act, 1894, the Prisoners Act, 1900, and other relevant laws enforced by the respective State Governments.

The power to grant parole lies with the executive, which has often drawn criticism for alleged discrimination and arbitrariness in its exercise. Notably, Dera Sacha Sauda chief and rape convict Gurmeet Ram Rahim Singh was granted a 21-day parole despite serving a 20-year sentence for raping two female disciples. He has been repeatedly released on parole and furlough, frequently coinciding with key election periods.

Parole: A Path to Prisoner Reform

The rule of law and justice is not confined to free citizens; it extends to individuals whose rights and liberties are curtailed by imprisonment. Even when a prisoner's freedom is lawfully restricted through procedure established by law, they still retain certain rights, including the right to claim parole for legitimate reasons and access to courts in India for the enforcement of those rights, ensuring their legal protections. In this regard, a notable observation reflecting this principle was made by Justice V.R. Krishna Iyer in Sunil Batra v. Delhi Administration & Ors. (AIR 1978 SC 1675, para 3): “Freedom is what Freedom does-to the last and the least-Antyodaya.”

In Mohammed Giasuddin v. State of A.P. (1977 3 SCC 287), Justice V.R. Krishna Iyer emphasized that, in the modern context and in line with the views of Mahatma Gandhi—who shared the perspective of progressive criminologists worldwide—it is essential to regard offenders as patients and prisons as institutions for mental and moral rehabilitation. The community has a vital stake in the reformation of offenders. Rather than relying on intimidation or punitive measures, the focus should be on therapeutic interventions aimed at their reintegration into society.

Justice V.R. Krishna Iyer, in Maru Ram v. Union of India & Anr. (AIR 1980 SC 2147), wisely emphasized that parole should be granted liberally to aid in the reformation of prisoners and facilitate their reintegration into society.

The Standard Minimum Rules for the Treatment of Prisoners and Related Recommendations, published by the U.N. Department of Economic and Social Welfare, New York, 1958, emphasize that the primary objective of therapeutic or reformatory jurisprudence is not to exclude prisoners from the community, but to ensure their continued participation in it.

Parole: As the Rule

Parole is the conditional early release of a prisoner based on good behavior, requiring regular reporting to authorities while keeping the sentence intact. It is granted only after a portion of the sentence has been served. The Supreme Court, in Asfaq v. State of Rajasthan & Ors. (AIR 2017 SC 4986), aptly defined parole as stated above and the conditions for its grant.

The Supreme Court aptly highlighted a prisoner's right to claim parole for legitimate reasons in Asfaq. The Supreme Court emphasized that the criminological objective of parole is the reformation of prisoners and that due consideration must be given to that societal aim. It concluded that parole should be granted based on factors such as the likelihood of reformation and good conduct in prison.

Denial of Parole as the exception:

It is this author's view that parole is to be denied only if the applicant poses a menace to society; otherwise, parole stands as the rule, and its denial as the exception. In the similar strain, Supreme Court in Asfaq, conviction for a serious and heinous crime cannot be the sole reason for denying parole. At the same time, if it is the only crime committed by the individual, he cannot be categorized as a hardened criminal. Wherever a person convicted has suffered incarceration for a long time, he can be granted temporary parole, irrespective of the nature of offence for which he was sentenced. In this context, the Supreme Court in Rajendra Prasad v. State of U.P. [(1979) 3 SCC 646] emphasized that the nature of the crime is not the sole determinant while assessing a crime; rather, the reformation of the individual remains the focal point. The Court observed: "The retributive theory has had its day and is no longer valid. Deterrence and reformation are the primary social goals."

In cases involving conviction for a serious offence, the competent authority, while assessing such matters, would be well advised to apply more stringent standards in evaluating factors such as the individual's conduct, prior criminal history, likelihood of reformation, and the potential risk to public peace and tranquillity, as observed by the Supreme Court in Asfaq. Public interest demands that habitual offenders who may reoffend or pose a threat to law and order should not be released on parole.

It is now well established that the four primary objectives of punishment imposed by the State on an offender are deterrence, prevention, retribution, and reformation. However, the issue of penology is complex, and these objectives must be considered holistically, particularly when dealing with life convicts who, in a literal sense, are incarcerated for the rest of their lives. In this context, as the Supreme Court, as observed in Maru ram and Asfaq, the release of such convicts from jail, intermittently, for short periods, could be considered. This provides them with an opportunity not only to address personal and family matters but also to maintain connections with society.

Types of Parole:

When discussing parole, three related terms come to the mind of a legal practitioner: furlough, custody parole, and regular parole. Regular parole may be granted in cases such as serious illness or death in the family, marriage of a family member, wife's childbirth without support, serious damage to family life or property (including from natural calamities), maintaining family or social ties, or to file a special leave petition before the Supreme Court, as observed in Asfaq.

The same aforesaid judgment Asfaq also defines custody parole and furlough. Custody parole is generally granted in emergent circumstances, such as the death or marriage of a family member, serious illness of a family member, or any other urgent situation. Furlough, on the other hand, is a temporary release from prison, granted under specific conditions, particularly in cases of long-term imprisonment. The time spent on parole will not be considered part of the sentence. However, the period of furlough will be counted as time served. In essence, furlough is granted as a remission for good conduct.

Denial of parole leads to institutionalization:

The provisions of parole and furlough embody a humanistic approach toward individuals incarcerated in jails. The jurisprudential purpose of parole or furlough is to allow inmates to address personal and familial matters while maintaining their connection with society. Dr Craig Haney, in his seminal work, The Psychological Impact of Incarceration: Implications for Post-Prison Adjustment (U.S. Department of Health and Human Services), discussed how prolonged imprisonment without parole or contact with the outside world can lead to the institutionalization of prisoners, making their reintegration into society upon release significantly more challenging. Moreover, as observed by the Supreme Court in Mohammed Giasuddin, and in line with the Standard Minimum Rules for the Treatment of Prisoners and Related Recommendations published by the U.N. Department of Economic and Social Welfare, New York, 1958, the community has a vested interest in ensuring that offenders are adequately prepared for reintegration. Prisoners released without strong support networks, employment opportunities, familiarity with their communities, or essential resources face a significantly higher risk of recidivism. Many individuals revert to crime post-release due to a lack of hope in being accepted as productive members of society. Parole and furlough serve as crucial mechanisms in facilitating their successful reintegration as observed in Asfaq.

A society that upholds human dignity can be measured by the conditions of its prisons and the rights afforded to its prisoners. In a lawful and organized system, every individual deserves a dignified life. Committing a crime does not strip a person of their humanity or justify the denial of basic rights. While prisoners' rights may be subject to reasonable restrictions, though they remain fundamental and enforceable. A just prison system goes beyond punishment, prioritizing rehabilitation and offering hope through parole, fostering reintegration and healing. This correctional orientation is a constitutional mandate rooted in social justice, as reflected in Article 14 (anti-arbitrariness), Article 19 (anti-reasonableness) and Article 21 (sensitized processual humanism). (See - Sunil Batra (II) v. Delhi Administration, ((1980) 3 SCC 488), Maneka Gandhi v. Union of India & Anr., ((1978) 1 SCC 248), and Charles Sobraj v. Superintendent Central Jai, Tihar, New Delhi ((1978) 4 SCC 104), Asfaq).

In conclusion, as Justice Douglas warned about the arbitrary revocation of parole— which could obstruct the rehabilitation and reformation of prisoners— a concern reflected in Morrissey v. Brewer, 33 L. Ed. 2d 484, 505, as follows: “The rule of law is important in the stability of society. Arbitrary actions in the revocation of paroles can only impede and impair the rehabilitative aspects of modern penology. 'Notice and opportunity for hearing appropriate to the nature of the case', are the rudiments of due process which restore faith that our society is run for the many, not the few, and that fair dealing rather than caprice will govern the affairs of men.'”

Muhammed Farooque KT, a practising Advocate in Kerala, views are personal