The power to grant furlough is usually with the government (executive), but in Delhi, the High Court is hearing a case about this rule. Furlough is a temporary leave from prison given as a right to well-behaved prisoners, while parole is granted in special cases based on need. The Delhi rule is different because the court, not just the government, plays a role in these decisions. This case is important as it may change how furlough is granted in Delhi.
New Delhi: Convicts involved in the Hashimpura massacre approached the Delhi High Court to challenge a specific Delhi prison rule regarding furloughs. This rule grants the court the authority to approve furloughs when an appeal against a conviction is pending, whereas typically, such decisions are made by the executive.
Furlough vs. Parole
Furlough and parole are both forms of conditional release from incarceration, rooted in jail manuals and prison regulations, and are typically managed by the executive. Both require good behavior from the inmate and prohibit certain offenses during the release period.
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- Furlough allows a convict to leave prison for a specified period while their sentence continues to run. For instance, if someone has a 10-year sentence and is granted a 30-day furlough, they would still be serving 9 years and 11 months of their sentence upon return.
- Parole, on the other hand, suspends the sentence temporarily and is usually granted for short-term imprisonment in specific situations, such as medical emergencies, agricultural needs, or to pursue an appeal in the Supreme Court. Furlough is generally reserved for long-term inmates who have served a certain amount of time and is intended to help them maintain family and social connections.
The Divisional Commissioner has the authority to grant parole, while the Deputy Inspector General of Prisons grants furlough. Parole requires a specific justification, whereas furlough is designed to break the monotony of imprisonment. Parole can be granted multiple times, but furlough has limitations, as it can be denied for societal reasons.
Delhi Prison Rules 2018
The Delhi Prison Rules 2018, specifically Chapter XIX, address furlough and parole. Note 2 of Rule 1224 states that if a convict has an appeal pending before the High Court or hasn’t filed an appeal, “furlough will not be granted” by the executive, leaving the convict to seek directions from the court. This particular rule has been contested in the Delhi High Court since 2022.
The Delhi prison administration clarified in an affidavit that this note was purposefully included by the Government of NCT of Delhi, based on the Parole/Furlough Guidelines from 2010.
So far, a single-judge bench of the Delhi High Court interpreted the term “high court” in the rule to refer to any appellate court, including both the Delhi High Court and the Supreme Court. If a convict’s appeal is pending in the Supreme Court, only that court can authorize furlough.
A division bench is currently assessing whether an application for furlough can be maintained in the High Court during an appeal, or if the convict must approach the Supreme Court directly. This division bench is also evaluating the constitutional validity of the rule.
The court will examine whether the rule violates Article 14 (right to equality) and Article 21 (right to life and liberty) of the Constitution. Additionally, it will consider if denying furlough due to a pending Supreme Court appeal despite the convict’s good conduct contradicts the reformative approach of the justice system. The court will also explore whether the principles governing parole can apply to furlough, given that furlough does not involve a suspension of the sentence.
The issue of who can decide on the suspension of a sentence was notably addressed in the case of KM Nanavati, an Indian Navy commander accused of murder in 1959. Although he was convicted by the Bombay High Court, the then Governor suspended his sentence before an appeal could be filed. The Supreme Court later ruled that the Governor cannot suspend a sentence when the matter is under judicial consideration, as it would undermine the court’s appellate authority.
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It is not unusual for furlough to be denied while an appeal is pending. For instance, during a Supreme Court application regarding a convict in a dowry death case, senior advocate Gaurav Agarwal highlighted that,
“Some states do not provide parole/furlough to a convict during the pendency of his appeal.”
He pointed out that the authority to grant parole or furlough lies with the state government, separate from the court’s power to grant bail or suspension of sentence.
The Supreme Court recognized the need for immediate attention to this issue, including several states as parties to ongoing litigation about the matter.
Legal Provisions Relating to Furlough
Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)
- Section 473: Power to Suspend or Remit Sentences
The appropriate government holds the authority to suspend or remit sentences at any time after a person has been convicted, with or without conditions. When considering applications for suspension or remission, the government may consult the presiding judge who handled the conviction, along with relevant trial records. The government can revoke the suspension or remission if conditions are not met, potentially leading to the rearrest of the individual. - Petitions for Suspension or Remission
Petitions must be filed while the person is in jail and can be submitted either through the officer in charge or with a declaration of imprisonment if made by another individual. These provisions apply to all orders restricting liberty, with the “appropriate Government” being either the Central or State Government, depending on the case.
Prisons Act, 1894
- Furlough and Parole Rules
The rules governing furlough are primarily outlined in Sections 59 and 3 of the Prisons Act, 1894. These rules lay down the criteria for eligibility and grant of furlough, as well as certain limitations. - Rule 3: Eligibility for Furlough
Rule 3 specifies the conditions under which a prisoner is eligible for furlough, including the length of time they have been imprisoned. However, the language “may be released” in Rule 3 indicates that furlough is not an automatic right, but rather a discretionary decision by authorities. - Rule 4: Limitations on Furlough
Rule 4 imposes limitations on the grant of furlough, making it a discretionary measure rather than an entitlement. - Rule 17: No Legal Right to Furlough
The rules explicitly state that prisoners do not have a legal right to claim furlough, reinforcing that it is a discretionary remedy, subject to the conditions specified by the rules.