After much media “outrage” over his alleged ‘out of turn’ treatment by parole board and furlough authorities, Sanjay Dutt, a victim of his own fame, is back in jail having been refused an extension of his furlough.  Now that the qualm-filled souls in the media and public are at rest, it is time to ask a few tough questions.

Is this to be seen as a moral victory of the media? If so, then indeed it is a hollow and impoverished one.  A victory that leaves us with the pang that justice has fallen by the wayside.

Falling prey to the completely internalised public distrust that the system can ever work fairly, the media asked why “Sanju Baba” was getting so much time out from jail. A media less concerned with sensation and more with citizen’s rights would have explained the value of furlough for both the ordinary prisoner and the celebrity, and how these benefits help humanise our colonial prison system. Instead, the media, by and large, played into the prejudice in every lay mind that baulks at permitting a prisoner his chance to be treated as ‘a person’ even where the law does, that seeks to punish more than the law itself.

Parole and furlough are temporary release benefits for convict prisoners intended to reintegrate the ‘good’ prisoner with home and society. They are not necessarily to be used only to meet emergencies, but can be sought to meet family obligations or even for preparing an appeal. Importantly, they help reintegrate a convict back into society. It has been seen that long time convicts often have nowhere to go on their final release if they have not availed these benefits while in jail. The world over, sentencing without parole and furlough rights is being considered absolutely inhuman. In India, parole and furlough rules vary across most states, but, according to prison rules and recent Supreme Court judgments, both forms of temporary release are to be considered as remission of sentence rather than its suspension. While parole requires a board of members to grant release, furlough may be granted by the district administration or prison official so authorised and designated by the state government.

Notwithstanding the intent of these measure, governments, courts, parole boards, furlough granting authorities, police verification procedures, and now, media, have themselves become bottlenecks to a benefit earned out of good conduct in jail. More and more unreasonable ‘merit’ criteria are getting annexed to release eligibilities, undoing the very purpose of parole and furlough.

The eligibility for furlough, the period and number of times it can be availed in a year are largely determined by the period of imprisonment, nature of offence, subject to good conduct and ability to meet the terms of release such as of surety, securities and supervision. A prisoner who is sentenced to imprisonment in Maharashtra for a period exceeding one year but not more than five years, as in the case of Sanjay Dutt, may be normally released on furlough for a period of two weeks at a time for every year of actual imprisonment.

Was Sanjay Dutt within his rights to seek an extension of furlough? Yes he was. While we are being told that an ADG circular passed by the Prison Department in recent times permits furlough extension in Maharashtra, it is worth noting that it is permitted even under the amended Prisons (Bombay Furlough and Parole) Rules, 1959. It states:

 “…The sanctioning authority may, on the application of a prisoner or otherwise, by an order in writing extend the period of furlough for such further period as may be specified in such order on the same conditions on which the prisoner was originally granted furlough or on such other conditions as the sanctioning authority may determine”. This means that a furlough extension need not be an obstacle race in every case. Moreover, the Rules add, “Ordinarily (italics mine) furlough shall not be granted to a prisoner within a period of six months from the date of his return from parole”. This means that in certain exceptional cases, discretionary powers of Inspector General of Prisons or the Deputy Inspector General could apply favourably even here.

With regard to parole, the legality of seeking and availing an extension seems to have been clarified in the 2012 case of Rupinderjeet Kaur v. State Of Punjab and Others, where the High Court of Haryana-Punjab was categorical in upholding the Punjab Good Conduct Prisoners (Temporary Release) Act, 1962, which mentions no restrictions on the number of times a prisoner may avail emergency parole, nor any on the possibility of a parole after the expiry of a parole granted recently. Not surprisingly, Punjab had the highest number of parole releases at 8,848 out of a national total number 33,031 in 2013 (National Crime Research Bureau), with only 119 parolees absconding. The Punjab state government has further humanised the rules for temporary release, and as recently as November 2014, delegated the power to sanction furlough releases to Deputy Commissioners for speedier action at district levels.

Why is this model of ‘care in custody’ not a privileged one to emulate and standardise as a bar set high according to modern penal reform goals of release and reintegration? Unfortunately, prisons have not yet risen to the status of ‘correctional facilities’. It is ‘security’, with its restrictions on mulaqat and reading materials, increasingly high lock-up hours, that continues to be the dominant practice. While governments cast in the old mould will tend to seek more punitive and restrictive models of penal administration, why should media be party to pushing the bar down on prison reform?

The problem, additionally, is that prisons are a state subject, and though all states are governed under the antiquated Prisons Act, 1894, there is a parity problem in the Jail Manuals of the states which outline the rules for the terms of treatment of prisoners. So, while in some states parole boards ask for one surety, others have begun asking for two, of 50,000 rupees security each! Which class of Indian prisoners can produce such sureties? Convicts have to either queue up in court for long months to get their sureties and securities reduced or continue in jail! While some courts like the Punjab-Haryana and Maharashtra High Courts have been more inclusive in their approach, other states like Delhi and Rajasthan have been restrictive. Both Delhi and Rajasthan High Courts refuse to accept parole applications of convicts whose appeals are pending before the Court, though one of the two Division Benches in Rajasthan has recently altered its stand. The right to appeal one’s conviction is a principle of fair trial; our law permits it. Why should availing this right dispossess any prisoner of their right to parole?

With regards to Maharashtra, the Nagpur Bench of the High Court said it all. Taking note of procedures in Sanjay Dutt’s case in 2014, the court chided the state government even while granting the star his parole, saying, “Many prisoners suffer from several ailments but could not get a parole because the police did not submit their papers on time,” and urged the Maharashtra government to better utilise its discretionary powers and not discriminate in its police verification. If Nagpur Bench verdict is to be interpreted properly, it would be this – Why not make more people ‘truly’ eligible instead of a few who have the wherewithal to make themselves so?

As regards Sanjay Dutt having been in the way of other prisoners’ rights, that is media bluff that must be called.  Sanjay Dutt’s furlough case was not a prima facie case for rejection, in which case the Superintendent would not even have forwarded it to the District Magistrate through the DSP or Commissioner. Sanjay Dutt had met the terms of surety and security, given residential proof of where he would be during his furlough period. He even diligently arrived at the jail when his furlough period was over and a decision over his application was pending, thus allaying any suspicion or risk of ‘furlough-jump’. So if all these terms were met on their individual merit, what were the grounds of rejection? How could the grant of his furlough extension have come in the way of anyone else’s application? Is every case not decided on its individual merits and demerits, and if the demerits are borne of systemic bottlenecks marked by illiberal interpretation of reformative law or prejudice against the commoner’s rights, why should someone who has made his way through these defects be punished for it?  But he has. And media needs to see the damage it has done by falling prey to lowering the bar for prison reforms instead of raising it towards the best standards of both release and watch.

But why is it that it takes a Sanjay Dutt, Vishal Yadav or Anil Gandhi to push through the recalcitrant system to stake their claim to benefits intended for all eligible convicts? What hinders the common prisoner from benefiting from the system? For the typical convict is poor: poor in income, education, support, representation and legal knowledge.

The finger, therefore, needs to be more aptly pointed towards the legal community. The media repeatedly overlooks the important fact that if Sanjay Dutt got past the line (if at all he did) – that cramped, pathetically slow queue of people forced to limp through the system without the promised safeguards – it is because he has access to the best legal advice and legal representation where his lawyers will leave no stone unturned to identify beneficial provisions in the law that would prevent any unnecessary period of  stay inside jail, who would make it their business to whip up every possible provision in the jail manual, its new rules and circulars, every craft and strategy at hand for release, for that is indeed the story that has been masked in the demonisation of Sanjay Dutt. How many behind bars have the benefit of knowledge of the law for their own protection? And if they do not, let us not turn to hound Sanjay Dutt for it, let us not valorise that slow and ragged queue, let us not fetishize our inhumanity and inefficiency. Let us ask questions of our legal aid bodies for the quality of advice and representation they provide, our lawyers and legal officers who do not pull up their socks for indigent and underprivileged inmates in a manner where more informed and meritorious applications can get filed.

Let us ask our police why they swallow up the papers of the poor, why their ‘watch’ over those released is not rigorous enough.  Let us ask our release boards why they do not meet regularly, why their procedures are not transparent.  Let us ask the parole boards, furlough sanctioning authorities and courts why they add new merit criteria that can only disempower, why they think that convicts on appeal cannot apply for parole, why they insist on impossible security amounts for which no surety will come forward, why they have made little use of release on personal bond though law permits it. Finally, let us ask the state governments why they cannot have a better supervisory and offender-management system, better trained police and probation officers, and why these officers deliver with diligent delay, such mechanical, insincere and terse reports on ‘risk to law and order’?

The most expeditious point at which applications for temporary release may be moved is through the officer-in-charge of the jail who must first affirm the period of detention and the conduct of the inmate to ascertain eligibility. Yet this is the point where we discover sleight of hand, a ruse manufactured to keep people longer behind bars. Jail and prosecution officers have been known to add the days of parole unfairly back into the period to be spent in jail, interpreting it conveniently, as a suspension of sentence. It took a Constitution Bench of the Apex Court, in 2000, in the case of Sunil Fulchand Shah v. Union of India and Others, to straighten out this twisted logic. In Fulchand’s case, the prosecution was adding a merciless 222 extra days to the person’s period of imprisonment!

If the question of undue privilege worries us, so should the loss of privilege. If misuse of the system bothers us, so should its disuse. If a few ‘high-risk’ or ‘high class’ offenders are getting past the even higher gates of parole boards and furlough authorities, then, indeed, the system must be taken to task for this. Not by punishing them out of their chances, but by ensuring that the plea of numerous commoners and ‘no-risk’ prisoners wasting away in Indian jails today, in spite of their paroles and furloughs being granted, is heard on equal merit. For what can be more defeating than seeing freedom slip away between the fingers due to sheer twist of the law and its keepers?

It is sad and ironic that the State of Bombay, which, since the 1950s, has played a lead role in jail reforms, giving a road map to other states as well as to the Jail Reform Committee that initiated the work on the Model Prison Manual in order to make uniform the care, welfare, discipline, training and treatment of prisoners across the country, finds itself in a corner today. With an unreasonable media at their heels and state government buckling in, it seems the authorities could not justify how their discretionary powers could have favoured Dutt without being a direct discrimination against other applicants.

For the ‘humanization’ phase in correctional administration envisaged by the Model Prison Manual to really take off, Jail Manuals need to be amended towards uniform and high standards of care and supervision that emphasize release and yet keep the watch. The criminal justice system, state governments, the media and civil society must internalise that the curtailment of liberty is itself the punishment for one undergoing sentence. Their endeavour should be not to derogate and crush the meagre benefits to a prisoner, but to widen the window of contact between the one in jail and his family, to institutionalise across states “the primary objective of punishment as reclamation and rehabilitation of the offender”. If redeemers are not to be seen as the end of the road, then let us not make a case of ‘mistaken’ privileges the easy shield to hide the system’s defects of containment, ill-preparedness and systemic denial of prisoners’ rights, and let not the media be, either its eager, or unwitting, bed-fellow.

About the Author

Sana Das is an alumni of the Jawaharlal Nehru University and The Indian Institute of Technology, Delhi. She currently works as the Coordinator for the Prison Reforms Programme at The Commonwealth Human Rights Initiative (CHRI).