Release on parole is a wing of the reformative process and is expected to provide opportunity to the prisoner to transform and change himself into a useful citizen. In India, there are no statutory provisions dealing with the question of grant of parole. The Code of Criminal Procedure does not contain any provision for grant of parole. By administrative instructions, however, rules have been framed in various States, regulating the grant of parole. In our country, the action for grant of parole is generally speaking, an administrative action. According to section 2(p) of the Delhi Prisons Act, 2000 ‘Parole system’ means the system of releasing prisoners from prison on parole by suspension of their sentences in accordance with the rules. Since the term ‘Parole’ has not been defined by the legislature anywhere, its meaning can be understood and extracted from the interpretation given in various dictionaries.
According to the LAW LEXICON A parole is a form of conditional pardon, by which the convict is released before the expiration of his term, to remain subject during the remainder thereof, to supervision by the public authority and to return to imprisonment on violation of the condition of the parole.
According to WORDS AND PHRASES, ‘Parole’ ameliorates punishment by permitting convict to serve sentence outside of prison walls, but parole does not interrupt sentence.
Parole has been defined in Black’s Law Dictionary, as ‘release from jail, prison or other confinement after actually serving part of the sentence’.
Further Sunil Fulchand Shah’s case (2000) 3 SCC 409 the Apex Court describes “parole” as a form of “temporary release” from custody, which does not suspend the sentence or the period of detention, but provides conditional release from custody and changes the mode of undergoing the sentence.
HISTORY OF PAROLE
The history of parole has been discussed at length by the Hon’ble Supreme Court in Poonam Lata’s case where it is mentioned that “Historically ‘parole’ is a concept known to military law and denotes release of a prisoner of war on promise to return. Parole has become an integral part of the English and American systems of criminal justice intertwined with the evolution of changing attitudes of the society towards crime and criminals. As a consequence of the introduction of parole into the penal system, all fixed-term sentences of imprisonment of above 18 months are subject to release on licence, that is, parole after a third of the period of sentence has been served. In those countries, parole is taken as an act of grace and not as a matter of right and the convict prisoner may be released on condition that he abides by the promise. It is a provisional release from confinement but is deemed to be a part of the imprisonment. Release on parole is a wing of the reformative process and is expected to provide opportunity to the prisoner to transform himself into a useful citizen. Parole is thus a grant of partial liberty or lessening of restrictions to a convict prisoner, but release on parole does not change the status of the prisoner. Rules are framed providing supervision by parole authorities of the convicts released on parole and in case of failure to perform the promise, the convict released on parole is directed to surrender to custody.”
OBJECTIVE OF PAROLE
In the absence of any specific provision in the Code of Criminal procedure regarding parole; judgments of the Hon’ble Supreme Court, various High Courts as well as the rules framed in various States, regulating the grant of parole has led to the development of parole system in India. Parole has now become an integral part of criminal justice system in India.
The Division Bench of the Hon’ble High Court of Delhi in Shakuntala Devi v. State (1996) 36 DRJ 545 has emphasized that under our Constitution, deprivation of personal liberty as penal policy is purposive because the imprisonment of the criminal is sanctioned as a measure of social defence and individual rehabilitation. The focus of interest in penology is the individual and the goal is salvaging him for society. Time and again the Apex Court has held that all aspects of criminal justice fall under the umbrella of Articles 14, 19 and 21 of the Constitution. Further the Apex Court has sought to humanize prison administration to some extent through its various pronouncements and it has also laid great emphasis on the right of a prisoner to the integrity of his physical person and mental personality. The Apex Court views sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a measure of social defence.
In Poonam Lata’s case (Supra) it has been held by the Apex Court that the release on parole is a wing of reformative process and is expected to provide opportunity to the prisoner to transform himself into a useful citizen.”
Further in Inder Singh v. State A.I.R. 1978 SC 1091 the Apex Court has held that if the behaviour of these two prisoners shows responsibility and trustworthiness, liberal though cautious, parole will be allowed to them so that their family ties may be maintained and inner tensions may not further build up. After every period of one year, they should be enlarged on parole for two months…….’
In view of the aforesaid, it is evident that the main objective and purpose of granting parole is to the rehabilitate the prisoners and to provide them an opportunity to reform themselves into a better human being, to allow them to develop a positive attitude and interest in life and also to provide them with an opportunity to maintain their social ties.
KINDS OF PAROLE
Custody Parole and Regular Parole are the two kinds of parole to which a convict is eligible. Custody Parole can be granted in emergent situations and circumstance only such as death of a family member, marriage of family member, serious illness of family member or in any other emergent circumstances. During the Custody Parole, the prisoner has to be escorted to the place of visit and return therefrom ensuring the safe custody of the prisoner. Such prisoner would be deemed to be in prison for the said period and the same would also be treated as period spent in prison.
In all other situations, it is open to the government to consider applications for Regular Parole. Some of the grounds on which the applications of the prisoner may be entertained are[1]:
- Serious illness of a family member
- Critical conditions in the family on account of accident or death of a family member
- Marriage of any member of the family of the convict
- Delivery of a child by the wife of the convict if there is no other family member to take care of the spouse at home
- Serious damage to life or property of the family of the convict including damage caused by natural calamities
- To maintain family and social ties
- To pursue the filing of Special Leave Petition before the Supreme Court of India again a judgment delivered by the High Court convicting or upholding the conviction, as the case may be
DIFFERENCE BETWEEN PAROLE AND BAIL
Parole and Bail are viewed by many people as the same, however there exists difference between Parole and Bail and both have different connotations in law. Bail is well understood in criminal jurisprudence and Chapter XXXIII of the Code of Criminal Procedure contains provisions relating to grant of bail. Sections 436, 437, 438 and 439 of the Code of Criminal Procedure respectively specify the power of the Courts to grant bail. Section 436 provides for bail in bailable offences, section 437 provides as to when bail may be taken in case of non-bailable offences, section 438 talks about direction to grant of bail to person apprehending arrest and 439 stipulates about special power of High Court and Court of Sessions to grant bail. The effect of granting bail is to release the accused from internment though the Court would still retain constructive control over him through the sureties. In case the accused is released on his own bond such constructive control could still be exercised through the conditions of the bond secured from him.
The Apex Court in Sunil Fulchand Shah’s case (Supra) while discussing about bail has held that the effect of granting bail is not to set the defendant (accused) at liberty but to release him from the custody of law and to entrust him to the custody of his sureties who are bound to produce him to appear at his trial at a specified time and place. The sureties may seize their principal at any time and may discharge themselves by handing him over to the custody of law and he will then be imprisoned.
On the contrary, in India, there are no statutory provisions dealing with the question of grant of parole. The Code of Criminal Procedure does not contain any provision for grant of parole. By administrative instructions, however, rules have been framed in various States, regulating the grant of parole. The Hon’ble Supeme Court in State of Haryana v. Mohinder Singh while distinguishing bail from parole has mentioned that Parole is a provisional release from confinement but is deemed to be a part of the imprisonment. Release on parole is a wing of the reformative process and is expected to provide opportunity to the prisoner to transform himself into a useful citizen. Parole is thus a grant of partial liberty or lessening of restrictions to a convict prisoner, but release on parole does not change the status of the prisoner. Rules are framed providing supervision by parole authorities of the convicts released on parole and in case of failure to perform the promise, the convict released on parole is directed to surrender to custody.
POWER TO GRANT PAROLE
The power to grant Parole is essentially the function of the executive and to consider the request made by the prisoner for his release on parole is the prerogative of the executive only. Rules have been framed in every state regulating the grant of parole. Every prisoner before his entitlement for his release on parole has to meet certain eligibility criteria.
As per the Parole/Furlough Guidelines 2010(Supra) in order to be eligible for release on parole (i) a convict must have served atleast one year in prison excluding any period covered by remission (ii) the conduct in prison must have been uniformly good (iii) during the period of parole, if granted earlier, the convict should not have committed any crime(iv) the convict should not have violated any terms and conditions of the parole granted previously (v) a minimum of six months ought to have elapsed from the date of termination of the earlier parole. However, under the belomentioned circumstances, the prisoners/convicts would not be eligible for being released on parole: Convicts whose release on parole is considered dangerous or a threat to national security or there exists any other reasonable ground such as a pending investigation in a case involving serious crime; (ii) Prisoners who have been involved in crimes and offences against the State, like sedition or who have been found to be instigating serious violation of prison discipline;(iii) Prisoners who have escaped from jail;(iv)The prisoner is not a citizen of India.
Further in the following cases, parole would ordinarily be not granted except, if in the discretion of the competent authority special circumstances exist for grant of parole;
(a) If the prisoner is convicted of murder after rape;
(b) If the prisoner is convicted for murder and rape of children;
(c) If prisoner is convicted for multiple murders.
The period of release on parole shall not, ordinarily, exceed one month at a time except in special circumstances to be mentioned in the order granting parole. The Government shall decide the period of release on the merits of each case, for reasons to be specified in the order granting parole.
WRIT JURISDICTION AND PAROLE
Time and again the Hon’ble Supreme Court has held that all the aspects of criminal justice fall under the umbrella of Articles 14, 19 and 21 of the Constitution. No doubt the grant of parole is essentially an executive function, however, if the Court finds that any Government action in rejecting the grant of parole to a prisoner has the effect of suffocating the Article 14 or 21 of the Constitution, then the Court has all the powers to restore the rule of law and respect the residuary fundamental rights of an aggrieved prisoner.
It has been held by the Hon’ble High Court of Delhi in Sharda Jain’s case (2010) 167 DLT 655 that the grant of parole being essentially an executive function, it is for the Government to consider the request made by the convict for the purpose and to pass an appropriate order on it. If however, the order passed by the Government declining parole is based upon irrelevant ground or extraneous considerations or is otherwise wholly unsustainable being an order which no reasonable person could, in the facts and circumstances of the case have passed or is totally perverse, it is open to the Court, in exercise of its powers under Article 226 of the Constitution to set aside an order and direct the release of a convict on parole.
The Apex Court in Poonam Lata’s case (supra) has also held that ‘On the principle that exercise of administrative jurisdiction is open to judicial review by the superior court, the High Court under Article 226 or this Court under Article 32 may be called upon in a suitable case to examine the legality and propriety of the governmental action. There is no scope for entertaining an application for parole by the court straightway’.
In Sunil Fulchand Shah’s case(Supra), the Constitutional bench of the Apex Court has held that, ‘the bar of judicial intervention to direct temporary release of a detenu would not, however, affect the jurisdiction of the High Courts under Article 226 of the Constitution or of this Court under Article 32, 136 or 142 of the Constitution to direct the temporary release of the detenu, where request of the detenu to be released on parole for a specified reason and/or for a specified period, has been, in the opinion of the Court, unjustifiably refused or where in the interest of justice such an order of temporary release is required to be made. That jurisdiction, however, has to be sparingly exercised by the Court and even when it is exercised, it is appropriate that the Court leave it to the administrative or jail authorities to prescribe the conditions and terms on which parole is to be availed of by the detenu’.
Parole was introduced as a way to encourage responsible behavior in rehabilitating the prisoners and at the same time to provide them an opportunity to reform themselves into a better human being and also to provide them with an opportunity to maintain their social ties. Some of the major concepts that underlie the parole system include the reduction of jail term after good and responsible behavior in prison and to allow the prisoners to develop a positive attitude, self confidence and interest in life.
Power to grant parole is purely an administrative decision, however, the executive must exercise the discretion vested in it judiciously and not arbitrarily and always keeping in mind the objectives of the parole and also taking into consideration that regardless of the crime a man may commit, he still is a human being and has human feelings also. Therefore the nature and length of sentence or the magnitude of the crime committed by the prisoner are not relevant for the purpose of grant of parole.