New Delhi: The Supreme Court last week expressed concern over convicts languishing in jail despite being entitled to remission of sentences. The observation came during the hearing of a case related to a murder convict facing a life sentence.
The convict, Mukesh Kumar, who faces a life sentence for killing his wife over dowry demand, was granted furlough for three weeks in July 2011. But last week, the Delhi Police and Tihar Jail authorities, in affidavits filed before the top court, revealed that Kumar had not surrendered before Tihar Jail, where he had been lodged, and was absconding for the past 10 years.
Kumar had moved the Supreme Court in 2007 against his conviction by a trial court in 2003, which was upheld by the Delhi High Court in 2007.
While furlough, parole and remission are all different, they all offer relief — temporary or permanent — from a prison term. ThePrint explains what the three mean and the difference between them.
Prisons, a state subject
‘Prisons’ is a State subject under the State List of the Seventh Schedule of the Constitution.
The management and administration of prisons fall exclusively in the domain of state governments and are governed by the Prisons Act, 1894, and the Prison Manuals of the respective state governments.
The Prisons Act further says that only states can make rules regarding the release of prisoners on furlough, parole and remission, as part of the correctional process in jail reforms.
However, the Centre too can put out non-binding guidelines.
The Ministry of Home Affairs released a comprehensive Model Prison Manual in 2016 on all aspects of prison administration and requested all states to review existing rules and procedures on parole, furlough, and remission. States can make their rules on furlough, parole and remission based on this manual.
The 2016 manual provides that the following people may not be granted parole or furlough — prisoners whose immediate presence in society may be considered dangerous; prisoners with a bad record of conduct inside the prison; prisoners convicted for heinous crimes such as terrorist activities and dacoity; and lastly, those prisoners who, in the opinion of the District Magistrate or District Superintendent of Police, may not report back to the Prison after the furlough.
It also suggests that “it may be useful to invariably include an expert psychologist/Criminologist/Correctional Administration Expert as a member of the Sentence Review Board and in the committee which decides grant of parole and furlough to inmates and obtain their opinion before such temporary release”.
The rules were reiterated in September 2020 when the MHA wrote to state chief secretaries, asking them to “ensure inmates released on parole or furlough or prematurely do not violate the law”. This was done in the wake of several states releasing prisoners to decongest prisons amid the Covid wave.
Furlough and parole
The objective of both furlough and parole is to create a balance between an inmate’s rights and those of the society to avoid further harm from the inmate.
Both are a form of conditional release, which means the inmate must follow the conditions set out in the order allowing furlough or parole; for instance, marking their presence at a nearby police station at regular intervals.
There is no uniform legislation to deal with furlough or parole. Different states have their own acts governing the two forms of release.
Furlough is granted as a matter of right to prisoners. Its main objective is to break the monotony of imprisonment and allow the inmate to maintain contact with the outside world.
Hence, it is not necessary for the granting authority — the Deputy Inspector General of Prisons — to study or note reasons for granting furlough. It is granted to convicts serving long imprisonment.
Parole, by contrast, is not seen as a matter of right. It is given to a prisoner for a specific reason like the death of a relative or to attend the marriage of a family member, and is subject to the prisoner’s behaviour.
Parole is usually, but not necessarily, granted when the conviction has been for minor offences and the term of imprisonment is short, as defined by the state’s prison manual.
The granting authority for parole is the deputy home secretary of the state government. In some states, the application for parole along with a police report on the applicant is forwarded to the district magistrate, who, in consultation with the state government, either rejects or accepts the request.
Both parole and furlough can be denied if the competent authority is of the opinion that releasing the inmate would not be in the interest of society.
Also, as laid down by the Supreme Court in the State of Haryana vs Mohinder Singh (2000), “when a prisoner is on parole his period of release does not count towards the total period of the sentence, while when he is on furlough, he is eligible to have the period of release counted towards the total period of his sentence undergone by him”.
How remission is different from furlough & parole
Remission is distinct from both furlough and parole in that it is a reduction in sentence as opposed to a break from prison life.
Section 432 of the Code Of Criminal Procedure allows state governments to grant remission to convicts. The provision states that “when any person has been sentenced to punishment for an offence, the appropriate government may, at any time, without conditions or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced”.
In essence, a prisoner can be released prematurely if the state government so desires. But the exercise of this power is in itself subject to judicial review.
One basic principle of Indian sentencing jurisprudence is that the executive cannot alter a sentence passed by the court. The reason why remission of sentence under this section does not affect this principle is that merely the execution of the sentence is being altered. Remission does not mean that the person’s conviction is set aside, just that the execution is treated differently.
The Supreme Court has in several judgments held remissions to be non-violative of this principle. Section 432, courts have said, has no effect on the conviction, and the convict has every right to go in appeal to clear himself of the stigma of conviction.
The President and governors of states have also been given the right to remit sentences of any person convicted of any offence under Articles 72 and 161 of the Constitution. In exercising this power, they must act in accordance with the aid and advice of their Council of Ministers.
(Tushar Kohli is a final year student at Army Institue of Law, Mohali and is interning at ThePrint.)
(Edited by Poulomi Banerjee)