The Bombay High Court[1] on 11^th March 2019 held that every prisoner shall be eligible for an emergency parole subject to valid reasons. However, the broader question which arises before us is why in certain crimes no parole is granted at all in India. Major Parole rules[2] prohibit granting of parole for crimes such as rape, robbery, crimes under NDPS[3] among others.

A Division bench[4] of the Supreme Court of India in 2017 had held that the heinousness or seriousness of the crime cannot become a reason for parole refusal. However, another Division bench decision of the court, State of Haryana v. Jai Singh[5] in 2003 held the contrary. Though, that case pertained to grant of remission, yet it created an ambiguity of sorts. The legal ambiguity and the pertinent human rights concerns call upon us discuss this issue.

The primary question is raised with respect to the objective of such punishments. It has been held in Asfaq case that the primary purpose of a reformative justice system is to eventually integrate the convict with the society and granting of occasional parole at regular intervals helps in attaining this. However, such rules which completely bar any relationship between the convict and society rather create a divide by breaking all such links between a criminal and society.

Secondly, prohibiting any opportunity of parole to a prisoner further violates his right to dignity. Right to live with human dignity is enshrined under Article 21 of the Constitution of India.[6] According to Whitman, dignity functions as a master concept in human rights law, is hard to define, but its core includes a notion of respect and solicitude toward subjects, owed simply to their status as human beings.[7] Thus, a prisoner should not be deprived of his dignity. As a human being, there are certain basic minimum commitments such as maintaining family and social ties and breathe fresh air albeit in periods rather than being bound by the four walls of prison forever. Therefore, even a prisoner has a right to live a dignified life with some prospects of parole subject to reasonable conditions such as of him being a habitual offender where his release is actually dangerous to the society. Thus, imposition of blanket ban on parole is unconscionable.

However, proponents of such laws argue that the underlying rationales for such are the distributive principles of punishment: the general deterrence, the deserved punishment, and the incapacitation of the dangerous. I would argue how none of the theories in reality allow for sentencing without parole.

The proponents of such punishment argue that oftentimes sentences such as life imprisonment without parole serve as a punishment worse than the death penalty and therefore, there is higher deterrence for these crimes. However, this idea does not seem to be backed up by any facts and census, further ‘there is little evidence that punishments imposed on convicted offenders have any impact on the behaviour of potential offenders’.[8] According to Robinson, for deterrence to be effective, the intended targets must be aware about the rules i.e. potential offenders must know that by committing rape they would not only invite a prison-time but would be given parole at all.[9] There is little evidence to suggest that potential offenders in India are aware about the specific rules that are made pursuant to Acts let alone the prison rules of various states where such specific provisions are provided for. Studies suggest that most people assume the criminal law tracks their intuitions of justice.[10] Thus, when deterrence deviates from the general intuition of people with respect to the degree of punishment that is to be accorded to criminal actions, the deterrence principle fails. Imprisonment without parole are not the punishments which the society is generally aware of and thus these deviations will not be anticipated by potential offenders unless they are specially advised to them.

Secondly, the proponents argue that such select criminals deserve to be sentenced without parole because of the nature of crime committed by them. However, usually such selection of crime is based on majoritarian judgement at the relevant point of time rather than understanding the immorality of crime itself (consider introduction of rape under this category only after the gruesome Nirbhaya rape case of 2013). Empirical justice does not serve real justice in transcendent sense. Therefore, many philosophers do not believe in the utility of resulting greater harm to the convict.[11] Whether a convict morally deserves to be punished to a certain extent subjective question which is dependent of various facts and circumstances. Therefore, one cannot state that imprisonment without parole is what a criminal deserves.

Lastly, it is argued that denial of parole checks the future possibility of crime by the convict. This means that the law functions on the notion that ‘once a criminal, always a criminal.’ However, reliable studies from both United Kingdom and United States point towards the difficulties in predicting future dangerousness of a criminal on the basis of a past crimes, unless the person is a proved habitual offender. Marquet and Sorosen state that offenders, generally, do not present a significant threat to the society in general.[12] Further, it is even more difficult to expect responsible behaviour from convicts within prison when there is no incentive such as parole to do so.

Currently, most Indian states in their parole rules have prohibited parole for certain crimes. The public pressure for protection from violent offenders is overriding the important human rights issues. However, it must be understood that, in a tolerant and mature democracy, human rights must extend to all humans, irrespective of their position in society. The principles of both justice and effective crime control are in favour of a sentencing policy that that would abhor from imposition of imprisonment without paroles, reserving them for only the most unimaginable cases possible. Such a system and policy ensures that the sentence imposed is such nature that do not fall at the extreme ends of the punishment continuum but on that point that puts each offender at his appropriate transcendent rank in relation to the blameworthiness of all other offenders.

[1] Dilip v. State of Maharashtra, Cr. Writ Petition No. 354 of 2019 (Bombay High Court).

[2] The rules made pursuant to various Parole legislations, the link to the Maharashtra govt. Parole rules have been provided, http://mahaprisons.gov.in/Uploads/pdf_GR/23a1fbf3-5af0-4f47-8b29-8f00ed590454parole.pdf

[3] The Narcotic Drugs and Psychotropic Substances Act, 1985.

[4] Asfaq v. State of Rajasthan, 2017 (7) SCC 53.

[5] State of Haryana v. Jai Singh, Cr. Appeal No. 661 of 2002 (Supreme Court of India).

[6] Francis Coralie Mulin v. The Administrator, Union Territory of Delhi, AIR 1981 SC 746,

[7] James Q. Whitman, Harsh Justice: Criminal Punishment and the Widening Divide between America and Europe (2005).

[8] Danya W. Blair, A Matter of Life and Death: Why Life without Parole Should Be a Sentencing Option in Texas, 22 Am. J. Crim. L. 191 (1994-1995).

[9] Paul H. Robinson, Distributive Principles of Criminal Law: Who Should be Punished How Much (2008).

[10] Id.

[11] Morse, Stephen J., “The Moral Metaphysics of Causation and Results”, Faculty Scholarship at Penn Law. 523 (2005).

[12] James W. Marquart & Jonathan R. Sorensen, A National Study of the Furman-Commuted Inmates: Assessing the Threat to Society from Capital Offenders, 23 Loy. L.A. L. Rev. 5 (1989).

ABOUT THE AUTHOR

Rajat Sinha

Rajat Sinha is a 5th Semester student of National Law University, Jodhpur. He takes an avid interest in Constitutional Law. He is also an Advisor of the Constitutional Law Society in his college.