Author: Nikhil Chainani |
Introduction
On a broader understanding both parole and furlough give an impression of conveying the same law. However, they differ substantially and procedurally. Both the terms refer to a leave of absence given to a convict from the prison. Since these terms, Parole and Furlough, refer to the prison administration, and prisons come under state department, each and every state has its own rules relating to the grant of parole and furlough.
What is furlough?
In layman’s term furlough refers to granting leave of absence. However, in legal terms, it refers to granting leave of absence for a specified time period to a convict from the prison. The rules for granting of furlough and the procedure are laid out in the prison rules of each state. However, the broad concept of furlough remains the same across all the states and only the procedure to be carried out varies from state to state.
Confusion between furlough and parole
Both the laws look similar on the bare reading of the text.
For example- Section 66(1) of the Assam Prison Act, 2013 explains the term furlough.
“66. (1) Where a person is detained in prison under a sentence of imprisonment, and the state government, or any authority empowered by it in this behalf, is satisfied from his antecedents or his conduct in prison that he is not likely to commit any offence during a period of temporary release from prison, the state government or such authority may subject to rules made under this act, by order direct that such person be released on furlough……”[1]
And 67 (1) of the same Act explains the term parole.
“67 (1) Where a person is detained in prison under a sentence of imprisonment and the state government is satisfied from his antecedents or his conducts in prison that he is likely to lead a law-abiding and useful life, if he is released from prison, the state government may, subject to rules made under this act, by order direct that such person be released on parole, upon his giving an undertaking to observe the conditions specified in the order and upon his entering into a bond to surrender himself to the superintendent of the prison on revocation of such order,…..”[2]
Difference between Parole and Furlough
- The main difference between furlough and parole is that furlough is a leave granted for a specified time period from prison[3]. On the other hand, parole is a suspension of prison sentence on conditions.
- Furlough is the right of a prisoner and is granted to him/her periodically. Sometimes it is even granted without any reason on the sole ground of him/her maintaining contact with family. Parole is not a right of the prisoner and is given on specific grounds. Sometimes even if all the grounds are satisfied the competent authority cannot grant him parole as leaving him/her in the society would be against the interest of the society.[4]
- Parole is granted in cases relating to short term imprisonment. Furlough is granted in cases of long term imprisonment.
- Furlough is granted by Deputy Inspector General of Prisons. However, the Divisional Commissioner is the Parole Granting Authority[5].
- Granting parole is based on the reasons however furlough is granted without any reason, mainly with the idea of giving the convict a break from regular prison life.
- No limitation on the number of times a convict can get parole. However, a limitation exists in case of furlough and this is based on the procedure laid out in the rules of each state.
- The sentence of the convict goes along with the furlough period. However, in case of parole, the days of leave are not included in the sentence period.
Recent Judgments of Supreme Courts and High Courts relating to furlough
- Deepak Sharma vs. State of Haryana[6]– The petitioner requested a grant of furlough for a period of two weeks to meet his family. It was earlier rejected by the district magistrate as the petitioner had already availed parole earlier. However the high court judge was of the opinion that the petitioner was convicted for a long time and had already served 10 years of his sentence, also the petitioner had submitted himself to the jail authorities when he had applied for parole on notice of the prison department. As his conduct was good and he was not harmful to society. The High Court granted him furlough and held that parole and furlough cannot be intertwined and should be seen separately.
- Dinesh Kumar vs Govt NCT of Delhi[7]– This petition was brought up in order to challenge clause 26.4 of the Parole/Furlough guidelines 2010, Delhi. Clause 26 mentions the conditions under which a prisoner is eligible for furlough.
26.4- The prisoner should not have been convicted of robbery, dacoity, arson, kidnapping, abduction, rape and extortion.
The court, in this case, held that the authorities granting furlough should do so with extra caution in cases wherein the convict has been convicted for a serious crime. If the granting authority grants him furlough even after considering such facts, they need to write a statement of reasons for doing so. However, the seriousness of the offence cannot be criteria to reject furlough without considering the convicts’ situation and reasons. This case held that 26.4 of the parole/furlough guidelines do not clear judicial scrutiny. The clause is unconstitutional and goes against Article 14 and Article 21 of the Indian Constitution. However, the court also mentioned that this judgement goes against the judgment of Gujarat High court in the case of Juvan Singh Lakhubhai Jadeja vs State of Gujarat[8], wherein the Gujarat High court held that furlough can be granted and rejected on the sole basis of the seriousness of crime committed by the convict.
- Bharat Singh vs. State[9]– This case deals with three major issues of the furlough issue. These three issues are as follows:-
- Whether the grant of parole is considered while the grant of furlough of a convict is being examined?
- The number of paroles and furlough that can be granted to a convict?
- Whether suo motto action can be taken by the jail authorities to grant furlough to convicts who haven’t applied but are eligible?
The replies to the questions were as follows:-
-
- The grant of parole and furlough are not intertwined and the same is mentioned in the 2010 guidelines.
- Parole should not exceed four weeks in a year. However, it can exceed cases of exceptional circumstances which are to be decided by the granting authority. Furlough is granted in three spells. The first one being three weeks long and the other two being two weeks long.
- Citing examples, the granting authority clarified that suo motto action can be taking by the jail authorities.
- Asfaq vs State of Rajasthan[10]– In this case, the supreme court used various previously decided cases and came up with differences between parole and furlough:-
- Both of these are conditional release.
- Parole is granted in short term imprisonment whereas furlough is granted in long term imprisonment
- Duration of parole extends to a maximum of one month whereas furlough extends to 14 days.
- Granting authority for parole is Divisional commissioner and for furlough, it is deputy inspector general of prisons.
- Reason for granting parole is necessary. However, in the case of furlough, it is not necessary as its main objective is to break the monotony of imprisonment and maintaining contact with the outside world.
- Parole can be granted many times however furlough has a limitation.
- Furlough can be denied in the interest of society
Conclusion
Therefore, the author is of the view that through this write up the appropriate distinction is made between parole and furlough, affirming that they are fundamentally different concepts. Both lead to the convict being released out of the prison for a certain period. However, the aims, objectives and the procedure followed for both are different. As this is managed by the prisons department which comes under Entry 4, of the State List under Schedule 7 of the Constitution, every state has its own rules for the grant of furlough in that state. However, the aims and objectives of granting parole remain the same across the country. The only difference that can be seen is that relating to the timeline and the conditions to be met to gain the advantage of furlough; this is evident from the differing opinion of two high courts relating to the same issue (Dinesh Kumar vs State and Juvan Singh Lakhubhai Jadeja vs State of Gujarat).
[1] Section 66(1) of the Assam Prison Act, 2013
[2] Section 67(1) of the Assam Prison Act, 2013
[3] Deepak sharma v. State of Haryana.
[4] State of Mahrashtra v. Suresh Pandurang Darvakar, (2006) 4 SCC 776.
[5] Bharat Singh vs State, 2017(1)JCC172.
[6] Deepak Sharma v. State of Haryana.
[7] Dinesh Kumar vs Govt NCT of Delhi, 2012CriLJ2959
[8] Juvan Singh Lakhubhai Jadeja vs State of Gujarat, ( 1973 ) 14 GLR 104
[9] Bharat Singh vs State, 2017(1)JCC172.
[10] Asfaq vs state of Rajasthan, (2017) 15 SCC 55
About the Author: Nikhil is a third year B.A.LL.B student at NALSAR University of Law, Hyderabad.
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