Short Releases, Long Sentences | Sahana Manjesh

Raju, a daily wage labourer was incarcerated at the age of 20 in the year 2000. He left behind two sisters and middle-aged parents. If Raju was to step out of prison for the first time now in 2020, the pandemic might be the last thing to bewilder him. In the time that he has been behind bars, his parents have passed away and he was not even able to attend their funerals. The house that belonged to his parents has since then been captured and sold off by encroachers. He was not around to contest the sale. His sisters have married in the meanwhile. His sisters’ husbands were not informed about his existence. In any case he no longer knows where they live. Raju worked on a handloom machine while in prison to earn some money, but those skills are not of much use in the real world. All his friends have grown up and moved to cities for work. 

How can he re-start his life outside prison? What real chance does he have at making a meaningful life?

Maintaining social ties after incarceration is a function of one’s social and economic privilege. Central prisons, where convicts are lodged, are often far away from one’s home and the inevitably long time it takes to make the journey to the prison comes at the cost of at least a day’s wage. After a while, life takes over, if not the time and expense involved, and prison visits by friends and family become a rare event in the life of convicts.

Parole and furlough

One way for a prisoner to maintain family ties is to be allowed to visit his or her home for a few days, either through parole or furlough. Essentially they entail a period of time when a prisoner’s sentence is suspended such that they can go home to attend to important moments such as funerals and marriages of loved ones, or to take care of farmlands and home repairs, meet lawyers to discuss their appeal in court, or to simply retain social and family ties. It is an act of grace allowed by the state executive. In India, parole and furlough are related concepts with a few distinctions. Parole (sometimes further classified as ‘ordinary’, ‘regular’, ‘custody’, ‘emergency’, or called temporary release) must be applied for under specific grounds, and the period so spent is not calculated towards the sentence. Furlough, where recognised, is granted to long term inmates without a specific reason and with the intent of enabling the inmate to maintain social ties, and the period so spent is considered as part of the sentence served. Each state and union territory has its own set of rules for applying for parole or furlough, the duration, and criteria for eligibility. Such release is a concession, and is not a matter of right.  

The concept of giving inmates a break from prison evolved as a means of enabling their involvement in life defining moments, to secure work, to tend to their land and homes, to incentivise good conduct in prison and to break the monotony of prison life. It is also known to enhance reintegration into society upon release and ensures that the space within and outside the prison are not strictly demarcated, creating a degree of fluidity (see here, here and here).

Against instinctive belief, a prisoner who earns the right to go home and retain some vestiges of normal human life, does not take it for granted or use it as a means of never returning to prison. Around the world, the rate of return of inmates released on furlough or home leave, as it is sometimes called, is very high. As per data released by the National Crime Record Bureau (NCRB) in the Prison Statistics of India (PSI) reports, the number of cases of parole absconders from among those released in the years 2018, 2017 and 2016 were  343 out of 31,297 (of whom 150 were re-arrested), 384 out of 34,501 (of whom 226 were re-arrested) and 471 out of 39,496 (of whom 282 were re-arrested), respectively. Therefore, “parole jumpers” account for less than 1% of those who are released. This high level of compliance only shows that in practice, parole comes at little to no cost to society, and in fact has a cascading beneficial effect since inmates are allowed to maintain social ties, which enable their reintegration upon release.

Who can access parole?

While the criteria for parole are spelt out by state prison manuals, securing the necessary permissions from the concerned police stations or district magistrates or higher prison authorities, as the case maybe, often involves ‘expenses’ and the social capital to have someone outside the prison who can make arrangements. For prisoners who come from backgrounds in which they are abandoned upon incarceration – as is the case with many female inmates, or those whose family cannot afford to run from pillar to post to secure the necessary permissions – are not able to exercise their right to apply for parole. Even if the application for parole is successful, the expense involved in travelling home, or the amount required to be paid as surety, or even the fact that many inmates don’t know where their migrant family members might be living at the time make the prospect of going home daunting, if not impossible. What is more, even when the option to maintain social and family ties may exist, the taboo associated with being incarcerated often makes it difficult to retain such ties. 

Many convicts then prefer to never avail prison break. Instead, they wait for final release to re-establish connections with family and friends for the first time in years and enter a world that’s vastly different from the one they left behind. 

And then there are those who fall under the exceptions. Certain categories of prisoners such as terror accused, sex offenders, those charged for drug related offences, those on death row, those with a court determined fixed term sentence, among others – are ineligible for temporary release in many states. Such generalised exceptions militate against punishment being an individualised process, where privileges must be based on one’s behaviour and not be assumed on the basis of the offence for which they are charged. For such prisoners, incarceration is one long and inhuman process, with nothing to look forward to.

COVID and Parole

In the current Covid-19 pandemic, one of the measures adopted by state governments to decongest prisons is to release inmates on ‘emergency parole’. However, the criteria for eligibility have been designed to make it impossible to secure release for many. Instead of using the more realistic and useful yardsticks of comorbidities, age, and other vulnerabilities, the condition precedent in most state’s parole guidelines framed during this time requires is for a prisoner to have had two previous successful parole returns. This automatically excludes several inmates who have never had the means or opportunity to apply for parole earlier.

On 3 September 2020, the Ministry of Home Affairs shared the guidelines pertaining to parole and furlough in the Model Prison Manual of 2016 with states and union territories, along with an advisory that certain categories of offenders must not be released on parole or furlough. This was in response to the Covid-19 emergency parole releases and is telling of how this restrictive re-imagination of parole and furlough is anything but ‘model’. As a concept, the short release of inmates from time to time is a prison reform initiative which realises the limitations that prison life imposes on one’s ties with society. However, miring the process in layers of bureaucracy and exceptionalism, especially given that so many of India’s prisoners come from socio-economically vulnerable backgrounds, makes this concept unworkable both in design and reality. Liberalising parole and furlough rules is necessary to ensure that we do not condemn prisoners like Raju to a life outside prison, far worse than within.

Sahana Manjesh is an advocate and legal researcher based in Mumbai. She has spent 5 years practicing in Delhi, including representing people on death row as an associate at Project 39A. She graduated from NLSIU in 2013.

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