advised the states and union territories on September 3, 2020 that in order to ensure that prison inmates released on parole, furlough and premature release do not violate law, systems must be put in place for monitoring and follow-up of each such case. On October 4 this year, the MHA updated this advisory as follows:HE Union Ministry of Home Affairs (MHA)
“Considering the importance of taking timely action in the event of any inmate absconding/escaping from custody/prison, it is considered necessary to have recent photographs of prisoners updated in the system and also generate immediate alerts which would enable tracking of such inmates by the law enforcement agencies.”
The MHA also wanted appropriate systems to be put in place for monitoring and follow up of each case of an inmate released on bail, parole, furlough and premature release so that they do not violate law and indulge in criminal activities.
The Leaflet’s Editor, V.VENKATESAN asked Smita Chakraburtty about the implications of the latest advisory from the MHA. Chakraburtty is the founder of PAAR – Prison Aid + Action Research, which advocates making open prison systems a norm. She is a Ford Foundation Global Fellow and an Ashoka Fellow. Before PAAR, Chakraburtty was an independent prison researcher. The High Courts of Patna and Rajasthan commissioned her to inspect the prisons of Bihar and Rajasthan respectively and submit reports. The Supreme Court has also endorsed her expert recommendations on open prisons and made it mandatory for all states to expand open prisons.
Excerpts from the interview:
TL: The Union Home Ministry has advised the states to update recent photographs of prisoners released on parole/furlough/ premature release in the “Eprisons” and Interoperable Criminal Justice System database to generate immediate alerts and facilitate easy tracking in the event of their violating the law. Your comments.
Ans: It is problematic to upload pictures of prisoners released on parole/furlough and premature release. Though security is used as blanket reasoning when it comes to initiating such measures, the Union Home Ministry needs to clearly state some aspects before implementing such measures. It is not clear for what duration of time the data will be stored and then destroyed. Also, it is not clear who will have access to this data of the integrated Interoperable Criminal Justice System. These two aspects leave abundant scope for misuse.
Parole and furlough are two forms of temporary release for convicted prisoners. In both, the inmate goes out of prison for a few days or weeks and returns on his/her own to continue undergoing the sentence. The purpose of granting parole and furlough is to instil trust within the system, which the prisoner has to earn over a period of time. However, in practice, there is no transparency in the procedure followed for the grant of parole or furlough. Parole is hard-earned and often subject to the whims and fancies of the presiding prison official. For example, “good conduct” is considered as a ground for parole, but what defines good conduct, no one can tell!
TL: For initiating timely action in the event of any inmate absconding/escaping from custody/prison, the MHA has suggested updating recent photographs in the system and generating immediate alerts to enable tracking of such inmates. The Eprisons and Interoperable Criminal Justice System platforms could be deployed to address such issues, the MHA has said. Your comments.
Ans: Prison is a state subject, and every state has a different set of parole rules. Most state prison rules are largely back-dated and not at par with High Court and Supreme Court rulings. Adding a prisoner’s face (bio-metrics) to the database which will then be open for access by local police and prison officials, leaves scope for abuse. Especially, when there is an absence of well-defined data protection law in the country. This measure seems to be designed to make scapegoats out of convicted prisoners.
TL: In order to ensure that inmates released on parole, furlough and premature release do not violate law, systems must be put in place for monitoring and follow up of each such case, the MHA has said. Has there been any concern over absence of effective mechanism for monitoring and follow up of each case?
Ans: Presently there is no scope for such review. However, the percentage of prisoners released on parole or furlough or premature release is surprisingly low, therefore this should not be of much concern and it does not impact crime rates. In the first quarter of the pandemic when the apex court had ordered setting up of High Powered committees for release of prisoners to decongest jails, even then, only less than about two per cent of prisoners were released on parole or furlough by respective states.
It is not clear for what duration of time the data will be stored and then destroyed. Also, it is not clear who will have access to this data of the integrated Interoperable Criminal Justice System. These two aspects leave abundant scope for misuse.
Moreover, this statement defeats the purpose of parole and furlough. Parole is temporary release, and the period of release is counted as part of the sentence. Furlough is also a temporary release, but it is excluded while counting the sentence undergone by a prisoner, and it is shorter than parole. Then, there is Emergency Parole, when a Jail Superintendent grants release in case of an emergency – such as the death of parent/ward/sibling/wife/husband. Some states call this furlough. Special parole is granted by the state government or high court for special circumstances. During the pandemic, the Rajasthan government granted three months-long parole during the first lockdown.
For special parole, emergency parole, and furlough, sentence is suspended or not counted. This means that if a prisoner has a seven years sentence, and he is out on furlough for 10 days during this period, then he will have to spend 10 extra days after returning to prison to compensate for the period of furlough, to secure his release at the end of the sentence.
The problem is actually much deeper. Prison and the police administration are independent of each other, it was carefully designed to be so, so that there is no overlap between a correctional institution which is meant for reformation of an individual and an investigating or prosecuting agency. However, in most states the position of Director General of Prisons is occupied by senior IPS officers. Most states are now moving towards having state cadre police officers fill in the position of jail superintendent, which is adding to the problem. Police personnel acting as prison officers usually end up policing inside prisons, inducing retribution in the name of maintaining law and order, which is far removed from the principles of reformation.
Parole and furlough are incentives which are supposed to be earned over a period of time by convicted prisoners. These are supposed to be trust-based incentives. Yet, due to the underlying policing mindset which governs the Indian prisons, state governments have come up with random sureties and guarantor systems which the prisoner is required to meet with in order to receive a parole or a furlough.
Members of the prison administration such as the jail superintendent or deputy superintendent who deal with parole or furlough matters, do not have the authority to check state level police case records of convicted prisoners. Yet they enjoy discretionary power to grant or reject a parole or a furlough prayer. This leads to corruption and favouritism. As a result, mostly affluent or influential prisoners get parole or furlough. In such cases, surety and bond amounts are often astronomical. This itself is problematic.
To say that “any person who either attempts to escape from prison or absconds from custody should not be considered for grant of bail, parole and furlough”, is mindless and harsh. Mindless because this will prevent a willing individual from surrendering and proactively courting re-arrest whereas bail is a judicial prerogative; therefore, such a blanket ban cannot be imposed. It is harsh, because it is an absolute statement and defeats the purpose of incarceration which is for reformation, rehabilitation and social reintegration of the prisoners.
If an ordinary prisoner manages to get parole, the conditions of temporary release are so complex that they are often difficult to comprehend and to comply with. Absconding reports are filed without application of mind. It is observed most prisoners absconding from parole were arrested from their home itself. Lists of absconding prisoners, therefore, do not match up with re-offenders’ lists. Therefore, efforts should be put into expanding the scope of parole, furlough and premature release and not strain the processes.
TL: Prison departments have been told to update details of escape from prison/custody on ePrisons on a real time basis. Has there been any difficulty that such an update is unavailable?
Ans: This is an interesting fact, as most instances of escape of prisoners happen during court productions which are then immediately reported. These are often unplanned desperate attempts by undertrial prisoners who then end up being rearrested within the same court premises. As discussed earlier, convicted prisoners absconding from parole are rare. In either of the instances of escape there is no problem in recording data on a real time basis.
TL: The MHA’s advisory says appropriate systems are to be put in place for monitoring and follow up of each case of an inmate released on bail, parole, furlough and premature release, to ensure they don’t indulge in criminal activities. Any person who either attempts to escape from prison or absconds from custody should not be considered for grant of bail, parole and furlough, it says. Are these harsh measures likely to violate the legal safeguards meant for the prisoners?
Ans: A basic look at the data on prisoners absconding from custody and their re-arrest or surrender will show this fear is unfounded. To say that “any person who either attempts to escape from prison or absconds from custody should not be considered for grant of bail, parole and furlough”, is perhaps mindless and harsh. Mindless because this will prevent a willing individual from surrendering and proactively courting re-arrest whereas bail is a judicial prerogative; therefore, such a blanket ban cannot be imposed. It is harsh, because it is an absolute statement and defeats the purpose of incarceration which is for reformation, rehabilitation and social reintegration of the prisoners.
PAAR filed applications under the RTI Act to find about prisoner release on parole during the pandemic. The data relating to the first six months, which we obtained from various states and union territories, reveals that in spite of the Apex court’s order to decongest prisons, less than two per cent of prisoners were released. Because the release of prisoners, as a result of the Supreme Court’s intervention, is abysmal, the MHA’s advisory is apparently an overreaction.