Convicts Too Must Breathe Fresh Air For At Least Some Time Provided They Maintain Good Conduct: HP HC

It is a matter of great solace to note that while batting most strongly and pitching vocally for giving the convicts also their human rights just like any other human being, the Himachal Pradesh High Court in a most learned, laudable, landmark and latest oral judgment titled Sewak Ram @ Sanjeev vs State of HP & Ors in CWP No. 9339 of 2023 that was pronounced as recently as on December 18, 2023 while underscoring the paramount importance of rehabilitation and societal reintegration for convicts has been gracious enough to grant parole to a prisoner underscoring that even those convicted of serious crimes deserve a chance to breathe fresh air and demonstrate their commitment to reform. We must note here that in allowing a plea of a convict who was seeking parole, the Division Bench comprising of Hon’ble Mr Justice Tarlok Singh Chauhan and Hon’ble Mr Justice Bipin Chander Negi minced just no words to hold that, “Convicts too must breathe fresh air for at least some time provided they maintain good conduct consistently during incarceration and show a tendency to reform themselves and become good citizens. Thus, redemption and rehabilitation of such prisoners for the good of societies must receive due weightage while they are undergoing a sentence of imprisonment.” It must be mentioned here that this leading case was brought before the High Court by Sewak Ram who sought a writ of mandamus directing the concerned authorities to release him on parole for 28 days. We see that the petitioner had invoked the Himachal Pradesh Good Conduct Prisoners (Temporary Release) Act, 1968, and its rules to support his plea. No doubt, the High Court thus very rightly granted parole.

At the very outset, this brief, brilliant, bold and balanced oral judgment authored by Hon’ble Mr Justice Tarlok Singh Chauhan for a Division Bench of the Himachal Pradesh High Court comprising of himself and Hon’ble Mr Justice Bipin Chander Negi sets the ball in motion by first and foremost putting forth in para 1 that, “ The instant petition has been filed for grant of the following substantive relief:-

(i) That the honourable court may kindly be pleased to issue writ in the nature of mandamus, whereby the respondents more particularly respondent No. 2 may kindly be directed to release the petitioner on Parole for a period of 28 days strictly in terms of the prescribed (Rules 1969) as framed under the Himachal Pradesh Good Conduct Prisoners (Temporary Release) Act, 1968 (Rule 1969) so that the petitioner may be in a position to solve his personal as well as his family problems.”

As we see, the Division Bench discloses in para 2 that, “The sole ground on which the respondents have opposed the claim of the petitioner is that the District Magistrate on the basis of the report submitted by the concerned district authorities found discrepancies in the petitioner’s mentioning date of ‘shradh ceremony’ and the absence of recommendation from the Pradhan, Gram Panchayat, Dadwa, District Solan and that the petitioner has been convicted for heinous crime.”

Quite strikingly, the Division Bench notes in para 3 that, “As regards the discrepancies, it appears that the petitioner had given date of the ‘shradh ceremony’ as 14.03.2023, whereas the same was 14.02.2023. However, it would be noticed that there was no adverse report whatsoever from the Panchayat or even from the side of the complainant.”

Simply put, the Division Bench states in para 4 that, “We have gone through the material placed on record and find that there is nothing on record to suggest that, in case, the petitioner is released on bail, he will not report back to the jail authorities on completion of the parole. This can always be ensured by imposing stringent conditions.”

Broadly speaking, the Division Bench reiterates in para 5 that, “As regards the petitioner being convicted of a heinous crime, it only needs to be reiterated that there is no presumption that a person who is convicted of a serious or heinous crime is to be ipso facto treated as hardened criminal. Hardened criminal would be a person for whom it has become habit or way of life and such a person would necessarily tend to commit crime again and again. Obviously, if a person has committed a serious offence, for which he is convicted, but at the same time, it is also found that it is the only crime he has committed, he cannot be categorized as hardened criminal.”

Most significantly, what constitutes the cornerstone of this noteworthy judgment is then summarized in para 6 wherein it is postulated that, “It appears that the respondents have been completely oblivious that grant of parole whereby convict can be released from jail for short period has to be considered as an opportunity afforded to him not only to solve his personal and family problems but also to maintain his links with society. Convicts too must breathe fresh air for at least some time provided they maintain good conduct consistently during incarceration and show a tendency to reform themselves and become good citizens. Thus, redemption and rehabilitation of such prisoners for good of societies must receive due weightage while they are undergoing sentence of imprisonment.”

Equally significant is what is then envisaged in para 7 that, “The theory of criminology, which is largely accepted, underlines that the main objectives which a State intends to achieve by punishing the culprit are: deterrence, prevention, retribution and reformation. When we recognise reformation as one of the objectives, it provides justification for letting of even the life convicts for short periods, on parole, in order to afford opportunities to such convicts not only to solve their personal and family problems but also to maintain their links with the society. Another objective which this theory underlines is that even such convicts have right to breathe fresh air, albeit for (sic short) periods. These gestures on the part of the State, along with other measures, go a long way for redemption and rehabilitation of such prisoners. They are ultimately aimed for the good of the society and, therefore, are in public interest.”

While citing the relevant case law, the Division Bench then states in para 8 that, “All these aspects as well as objectives of parole have been elaborately set out by the Hon’ble Supreme Court in Asfaq vs. State of Rajasthan (2017) 15 SCC 55, the relevant observations whereof read as under:-

“11. There is a subtle distinction between parole and furlough. A parole can be defined as conditional release of prisoners i.e. an early release of a prisoner, conditional on good behaviour and regular reporting to the authorities for a set period of time. It can also be defined as a form of conditional pardon by which the convict is released before the expiration of his term. Thus, the parole is granted for good behaviour on the condition that parolee regularly reports to a supervising officer for a specified period. Such a release of the prisoner on parole can also be temporarily on some basic grounds. In that eventuality, it is to be treated as mere suspension of the sentence for time being, keeping the quantum of sentence intact. Release on parole is designed to afford some relief to the prisoners in certain specified exigencies. Such paroles are normally granted in certain situations some of which may be as follows:-

(i) member of the prisoner’s family has died or is seriously ill or the prisoner himself is seriously ill; or

(ii) the marriage of the prisoner himself, his son, daughter, grandson, granddaughter, brother, sister, sister’s son or daughter is to be celebrated; or

(iii) the temporary release of the prisoner is necessary for ploughing, sowing or harvesting or carrying on any other agricultural operation of his land or his father’s undivided land actually in possession of the prisoner; or

(iv) it is desirable to do so for any other sufficient cause;

(v) parole can be granted only after a portion of sentence is already served;

(vi) if conditions of parole are not abided by the parolee he may be returned to serve his sentence in prison, such conditions may be such as those of committing a new offence; and

(vii) parole may also be granted on the basis of aspects related to health of convict himself.

15. A convict, literally speaking, must remain in jail for the period of sentence or for rest of his life in case he is a life convict. It is in this context that his release from jail for a short period has to be considered as an opportunity afforded to him not only to solve his personal and family problems but also to maintain his links with society. Convicts too must breathe fresh air for at least some time provided they maintain good conduct consistently during incarceration and show a tendency to reform themselves and become good citizens. Thus, redemption and rehabilitation of such prisoners for good of societies must receive due weightage while they are undergoing sentence of imprisonment.

17. From the aforesaid discussion, it follows that amongst the various grounds on which parole can be granted, the most important ground, which stands out, is that a prisoner should be allowed to maintain family and social ties. For this purpose, he has to come out for some time so that he is able to maintain his family and social contact. This reason finds justification in one of the objectives behind sentence and punishment, namely, reformation of the convict. The theory of criminology, which is largely accepted, underlines that the main objectives which a State intends to achieve by punishing the culprit are: deterrence, prevention, retribution and reformation. When we recognise reformation as one of the objectives, it provides justification for letting of even the life convicts for short periods, on parole, in order to afford opportunities to such convicts not only to solve their personal and family problems but also to maintain their links with the society. Another objective which this theory underlines is that even such convicts have right to breathe fresh air, albeit for periods. These gestures on the part of the State, along with other measures, go a long way for redemption and rehabilitation of such prisoners. They are ultimately aimed for the good of the society and, therefore, are in public interest.

18. The provisions of parole and furlough thus, provide for a humanistic approach towards those lodged in jails. Main purpose of such provisions is to afford to them an opportunity to solve their personal and family problems and to enable them to maintain their links with society. Even citizens of this country have a vested interest in preparing offenders for successful re-entry into society. Those who leave prison without strong networks of support, without employment prospects, without a fundamental knowledge of the communities to which they will return, and without resources, stand a significantly higher chance of failure. When offenders revert to criminal activity upon release, they frequently do so because they lack hope of merging into society as accepted citizens. Furloughs or parole can help prepare offenders for success.

19. Having noted the aforesaid public purpose in granting parole or furlough, ingrained in the reformation theory of sentencing, other competing public interest has also to be kept in mind while deciding as to whether in a particular case parole or furlough is to be granted or not. This public interest also demands that those who are habitual offenders and may have the tendency to commit the crime again after their release on parole or have the tendency to become threat to the law and order of the society, should not be released on parole. This aspect takes care of other objectives of sentencing, namely, deterrence and prevention. This side of the coin is the experience that great number of crimes are committed by the offenders who have been put back in the street after conviction. Therefore, while deciding as to whether a particular prisoner deserves to be released on parole or not, the aforesaid aspects have also to be kept in mind. To put it tersely, the authorities are supposed to address the question as to whether the convict is such a person who has the tendency to commit such a crime or he is showing tendency to reform himself to become a good citizen.

20. Thus, not all people in prison are appropriate for grant of furlough or parole. Obviously, society must isolate those who show patterns of preying upon victims. Yet administrators ought to encourage those offenders who demonstrate a commitment to reconcile with society and whose behaviour shows that aspire to live as law-abiding citizens. Thus, parole program should be used as a tool to shape such adjustments.

21. To sum up, in introducing penal reforms, the State that runs the administration on behalf of the society and for the benefit of the society at large cannot be unmindful of safeguarding the legitimate rights of the citizens in regard to their security in the matters of life and liberty. It is for this reason that in introducing such reforms, the authorities cannot be oblivious of the obligation to the society to render it immune from those who are prone to criminal tendencies and have proved their susceptibility to indulge in criminal activities by being found guilty (by a Court) of having perpetrated a criminal act. One of the discernible purposes of imposing the penalty of imprisonment is to render the society immune from the criminal for a specified period. It is, therefore, understandable that while meting out humane treatment to the convicts, care has to be taken to ensure that kindness to the convicts does not result in cruelty to the society. Naturally enough, the authorities would be anxious to ensure that the convict who is released on furlough does not seize the opportunity to commit another crime when he is at large for the time-being under the furlough leave granted to him by way of a measure of penal reform.

22. Another vital aspect that needs to be discussed is as to whether there can be any presumption that a person who is convicted of serious or heinous crime is to be, ipso facto, treated as a hardened criminal. Hardened criminal would be a person for whom it has become a habit or way of life and such a person would necessarily tend to commit crimes again and again. Obviously, if a person has committed a serious offence for which he is convicted, but at the same time it is also found that it is the only crime he has committed, he cannot be categorised as a hardened criminal. In his case consideration should be as to whether he is showing the signs to reform himself and become a good citizen or there are circumstances which would indicate that he has a tendency to commit the crime again or that he would be a threat to the society. Mere nature of the offence committed by him should not be a factor to deny the parole outrightly. Wherever a person convicted has suffered incarceration for a long time, he can be granted temporary parole, irrespective of the nature of offence for which he was sentenced. We may hasten to put a rider here, viz. in those cases where a person has been convicted for committing a serious office, the competent authority, while examining such cases, can be well advised to have stricter standards in mind while judging their cases on the parameters of good conduct, habitual offender or while judging whether he could be considered highly dangerous or prejudicial to the public peace and tranquillity etc.

23. There can be no cavil in saying that a society that believes in the worth of the individuals can have the quality of its belief judged, at least in part, by the quality of its prisons and services and recourse made available to the prisoners. Being in a civilized society organized with law and a system as such, it is essential to ensure for every citizen a reasonably dignified life. If a person commits any crime, it does not mean that by committing a crime, he ceases to be a human being and that he can be deprived of those aspects of life which constitute human dignity. For a prisoner all fundamental rights are an enforceable reality, though restricted by the fact of imprisonment. {See-Sunil Batra (II) v. Delhi Administration (1980) 3 SCC 488, Maneka Gandhi v. Union of India and Another (1978) 1 SCC 248, and Charles Sobraj v. Superintendent Central Jail, Tihar, New Delhi (1978) 4 SCC 104.}

24. It is also to be kept in mind that by the time an application for parole is moved by a prisoner, he would have spent some time in the jail. During this period, various reformatory methods must have been applied. We can take judicial note of this fact, having regard to such reformation facilities available in modern jails. One would know by this time as to whether there is a habit of relapsing into crime in spite of having administered correctional treatment. This habit known as “recidivism” reflects the fact that the correctional therapy has not brought in the mind of the criminal. It also shows that criminal is hardcore who is beyond correctional therapy. If the correctional therapy has not made in itself, in a particular case, such a case can be rejected on the aforesaid ground i.e. on its merits.” (Underlining ours).

The view taken by the Hon’ble Supreme Court has thereafter been followed by this Court in hundreds of decisions.”

It is worth noting that the Division Bench notes in para 9 that, “In the given facts and circumstances, we deem it appropriate to allow the petition. Consequently, the respondents are directed to release the petitioner on parole for a period of 28 days, subject to his furnishing personal bond of Rs. 2,00,000/- with two local sureties of the like amount, to the satisfaction of the Superintendent, Model Central Jail, Kanda, District Shimla, H.P.”

Finally, the Division Bench concludes by holding in para 10 that, “The petition stands disposed of in the aforesaid terms, so also pending applications, if any.”

In sum, we thus see that the Himachal Pradesh High Court has very commendably, courageously and convincingly taken the correct stand that even those convicts who are convicted for serious crimes too must breathe fresh air at least for some time provided they maintain good conduct and demonstrate their serious commitment to reform. The prisoners in different jails all across the nation must be similarly certainly given parole in similar such cases depending on the conduct of the prisoners as they too definitely deserve to be given a chance to breathe fresh air as pointed out so very rightly. No denying it!

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