Even prisoners have rights

EVEN PRISONERS HAVE RIGHTS
- RAJEEV DHAVAN

India’s prison law and policy needs total revaluation. For example, India’s Prison’s Act 1894 permits “whipping” for prison indiscipline. This remains on India’s statute book though abolished in Andhra, Assam, Bihar, Gujarat, Madhya Pradesh, Maharashtra and West Bengal. Such laws and policies represent a prevailing attitude towards prisoners. The irredoubtable Justice Krishna Iyer carried forward the case for humanity, respecting the life and liberty during confinement. In the Sunil Batra cases, Krishna Iyer J deemed solitary confinements, bar fetters and whipping “barbaric”. In 1966 the Supreme court granted convict Prabhakar to publish a book on the atom. A prison is not a dungeon in the Bastille. Kiran Bedi has shown that prisoners have talents, need opportunities and need creative and humane treatment. Constitutionally the message is: “Even prisoners have rights”

The Manu Sharma parole has excited all kinds of passions. The reactions are quite typical of our reactions to cricket. If our team or some player wins, we accord glory to them. If not, we are inconsolably depressed. While evaluating Manu Sharma’s parole, we should not put the entire system of parole into jeopardy.

Parole is a right (perhaps, in strict legal parlance, a privilege) that inheres in every prisioner. There are two broad views on parole. Justice Krishna Iyer’s expansive view in Dharambir (1979) was that parole is a humanizing necessity, which should be allowed for two weeks to every prisoner every year to prevent prisoners from becoming hardened criminals. The second ‘strict necessity’ view is that parole should be granted for personal necessity. In both views, good behaviour is a pre-condition. In the expansive view every peccadillo by a person is not bad behaviour heralding a disentitling fall from grace.

Even Manu Sharma who is in jail for the killing of the beautiful and innocent, Jessica Lall, is entitled to be considered for remission and parole with strict conditionalities. Our Prisoners Act 1900 is woefully deficient on the subject of parole. Under the Constitution “prisons” are a state subject (List II, Entry 4). So, it is left to the states to devise rules. Rules of varying dimensions have been devised by law in Bihar, Madhya Pradesh, Tripura and West Bengal. Parole terms usually require serving one year of a larger term, considering the nature of the offence and good behaviour in prison. Tripura even allows release of upto 2 years, whilst others usually permit parole for 15 to 30 days. But apart from statutory provisions, there is also the general power of pardon in the President (article 72) and the Governor (article 161) which extends to granting parole. In addition there is also State Government’s power under the Criminal Procedure Code 1973 (section 432) to suspend or remit sentences. This latter judicialised procedure is somewhat different from the pure bureaucratic procedure requiring the state to seek the opinion of presiding judge of the convicting court. This diversity of legal and constitutional options is as haphazard as the results they produce.

The Delhi system seems to encounter many difficulties. The relevant circular is that of 7 March 1958. No changes have been made. If we look at the last four years, newspaper estimates suggest about 4 out of 5 parole applications fail. Reportedly in 2009, out of 132 applications, 11 were granted, 33 rejected and 88 are pending. This system of denial is being examined by the Delhi High Court. In Sumedh Singh’s case (of Connaught Place shooting fame) Justice Kailash Gambhir strongly disapproved delay in processing parole applications. The High Court has itself issued a suo motu petition (WP 1121/2009) to resolve this. It will be heard on 25 November 2009. whether a final court verdict with guidelines will emerge on that day is doubtful.

In Manu Sharma’s case, Chief Minister Dikshit reports that the decision was taken after processual consideration by the Prison Department, Police, Home Department, Chief Minister. The Delhi Legal Services Authority criticised this approach whereby applications are often considered after the necessity (e.g. attending a marriage, sickness within family etc) is over! The High Court in October 2009 was absolutely right in demanding a review of the procedures. What we need is a single committee working full time to examine applications. Granting parole is not a part time job for a busy Chief Minister following hastily put together reports of uneven depth and significance. The Lieutenant Governor affirmation becomes a mere signature behind which he can hide his non-application of mind.

The Manu Sharma affair should not take the public gaze away from the need of a fair, just, quick and efficient parole system for deserving prisoners. In fact, Justice Krishna Iyer’s view that parole should not just be grounded on necessity but as a matter of practice for at least two weeks every year for long-serving prisoners deserves high consideration.

Manu Sharma’s personal case was clearly botched up. Consistent with what I have argued earlier, prima facie Manu Sharma deserved bail subject to conditionalities (including, perhaps against armed visiting of pubs). He had been a model prisoner and had been in jail for a considerable period. There was a difference of opinion between the Delhi Police (which said “no”) and the Chandigarh Police (which said “yes”). It was to Chandigarh that Manu was heading. There was no serious flaw in granting him bail. But there is a serious doubt about how his application was prioritised. Was it that his mother was ‘seriously ill’? This could be a reason for accelerated consideration. Was it that he had to attend business? That, by itself, is not a reason for prioritised consideration? But the grant of parole to Manu Sharma created suspicion on at least two counts. First, there appears to have been political influence in prioritizing his case. His father is an influential businessman and politician. Second, his parole was extended by a month till 22 November 2009 - with a three day in between the two months of parole without permission. An oversight, perhaps, but deliberately so.

There is a distinction between the granting of parole and its abuse. Did Manu abuse his parole? There seems little doubt that the very granting of parole was tainted. His mother, Shakti Rani, was far from ill and she was organising press conferences for under-19 women’s cricket competition. But Manu’s case has acquired public notoriety because he went to a pub in Delhi’s Samrat Hotel. This was certainly news, but was it a breach of parole? By itself, I do not think so. Not visiting a bar should have been a express condition of his parole. Suppose a spy found that Manu was drinking whisky and champagne everyday at home, while playing rummy with his mother. Would this be a breach of his parole? Manu’s singular trip to a club is not by itself a breach of parole (even if the media thinks otherwise) because of the absence of a strict condition of parole to this effect which should have been put in his case. Equally Manu should have had better sense than flaunt his parole in a bar.

The parole system is a salutary system. Prisoners have rights and duties. A proper full time system of parole must replace the present ad hoc system. Our reactions to prisoners and their parole are as medieval as our minds on the subject.