Parole or payroll?

Sanjay Dutt's parole, ostensibly to look after his ailing wife, sparks row

Parole or payroll?

Almost one hundred years ago, United States President William Howard Taft sounded a word of caution regarding the use of parole.

He was quoted as saying to Collier’s Weekly, “paroles have been abused and should be used with greater care. It is discouraging to read of the arrest and prosecution of one, charged with a new felony, had secured parole after a short confinement and then used his release to begin again his criminal life.” While Bollywood actor Sanjay Dutt has not been accused of any such recidivism during the much publicised liberty granted to him recently by the Maharashtra government, grave questions of propriety arise when it is employed with such selective munificence.  

Ever since former Scottish navyman Alexander Maconochie pioneered the concept of conditional liberty for convicts in the middle of the 19th century, the idea of the possible reform and reintegration of criminals had taken root. The ideas behind parole, remission and commutation of sentences are born out of a rehabilitative approach to criminology – one that does not seek vengeance and retribution on the offender, nor attempts to deter the larger community from emulating his actions. Selective periods of liberty via parole are considered necessary towards achieving a humanised society. In Delhi’s Tihar jail for example, this allowed nearly 150 convicts to get married over the last two years. As opined by criminal psychologists, the probability of leading a family life and being employed post-incarceration, prompts prisoners to behave better and cooperate with the authorities.   

Overcrowded prisons

In modern times, with a growing criminal class and limited resources, prisons around the world are suffering from overcrowding, resulting in innovative solutions, including a relaxed attitude towards parole. A CBS News report last week revealed that over 1,400 life convicts with little or no hope of liberty were released on parole over the last 3 years in the State of California, largely due to restrained use of the gubernatorial veto, as against the stricter approach of the erstwhile Arnold Schwarzenegger-led administration.  

In India, the regulation of parole is governed by Section 31-B of the Prisoners Act, 1900 and Section 432 of the Code of Criminal Procedure, 1973. While one lays down the procedure and pre-requisites for being considered for such release, the other provides the conditions and parameters. Almost uniformly, the state governments have notified parole and furlough guidelines, dividing the former into two categories – custody parole (which is for a few hours at a time with police escort and for limited emergent circumstances like the death, marriage or illness of a family member) and regular parole (which is normally for a month at a time, for those who have uniformly good conduct, who have not committed crimes of murder, rape and sedition, and who have completed a minimum portion of their sentences).

Understandably, overwhelming public interest manifested through the sentiment of the society in which the convict would reside during the period of parole, and his propensity to be a repeat offender would be relevant considerations on whether he ought to be set at liberty.  Along with the jail superintendent, it is within the discretion of the local police to decide whether regular parole ought to be granted. Needless to say, any violation of the parole conditions would ensure a swift return to confinement, and would cast a grim shadow over future remissions.  
    
Nightclub visits

It is interesting to see how local governments over the years have been somewhat selective in the manner in which these provisions have been applied. Even before l’affaire Dutt, in November 2011 we saw Jessica Lall murder convict Manu Sharma utilising his parole at a popular Delhi nightclub. This was despite claims that he was to attend to his ageing mother and to the neglected family business. Like Dutt, Sharma’s father was also a senior Congress politician, although with a contrasting reputation. Shortly thereafter, disgraced Delhi ACP S.S.Rathi who had been convicted for the staged murder of two businessmen in Connaught Place was found on parole. This, a few weeks after the Supreme Court had rejected his prayer for bail on the very same grounds.

Admittedly, there is something to be said about the questionable use of parole for those who are arguably powerful and influential. But, a word of caution is necessary against any knee-jerk reactions. In response to the reportage of the Dutt parole and after being pulled up by the Bombay High Court, the Maharashtra government granted parole to another Mumbai blast accused Mohammad Yakub Abdul Majid Nagul, who had first sought liberty to make arrangements for the birth of his child, but no decision was taken on his application. The baby developed complications a month later and died, and Nagul’s renewed request for parole to attend her funeral also remained unaddressed. It was only when he invoked the sympathy of the high court that the state deemed it fit to let him meet his family.

The entire episode reflects the heartlessness that the Central government manifested in its secret execution of Afzal Guru without intimating his family.  In a somewhat similar vein, when faced with the parole violation of a single murder accused, the Karnataka High Court last week directed the State to secure all 47 convicts who had been released on parole by it and return them to jail, displaying an arbitrary and unsympathetic approach to a human issue. If this is how the authorities react to the media spotlight on arbitrary doling out of parole, it would be akin to throwing the baby out with the bathwater. The solution lies in providing transparent checklists for the grant of parole, and laying down very strict timelines for deciding the applications. The exercise of a power which displays the state’s mercy must be preserved, not abused.    

(The writer is Advocate, Supreme Court of India)

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