Poverty Can't Be Bar To Parole: Rajasthan High Court Waives Surety Condition For Indigent Life Convict, Frames Guidelines

The Rajasthan High Court has held that any insistence on sureties from an indigent prisoner as a precondition for being released on parole, who is unable to fulfil that condition, especially after repeated judicial interventions in the past that waived that requirement, is violative of Articles 14 and 21 of the Constitution and morally indefensible. The division bench of Justice Arun Monga and Justice Farjand Ali held that the condition of furnishing personal bond and/or surety as delineated under Rule 4 of the Rajasthan Prisoners Release on Parole Rules, 2021 (“the Rules”) was directory and not mandatory or punitive in nature. And such discretion had to be exercised by the authorities in a positive manner to actualize the prisoner's release. “...the law does not, and constitutionally cannot, countenance a situation where the means defeat the end. Furnishing of surety is only means to secure the prisoner's surrender after completion of parole and not an end in itself. Where a prisoner's indigence and inability to furnish sureties is established and undisputed, insistence on sureties becomes an instrument of oppression and exclusion. Parole, once granted by the competent committee, cannot be rendered meaningless or illusory by superimposing conditions which the authority itself knows the prisoner is unable to fulfill. Such an approach amounts to constructive denial of parole, notwithstanding its formal grant.”The Court had received a letter from the petitioner which was converted to the instant writ petition. The petitioner was a convict undergoing life imprisonment, seeking waiver of the onerous condition of furnishing sureties for actual release on the sanctioned parole. The petitioner had applied for parole fourth time, and on all earlier three occasions, similar request was made, and pursuant to judicial intervention, the requirement of surety was waived. In this light, the Court highlighted the “persistent and deeply troubling pattern” and the persistent mechanical approach of the authority of imposing such onerous condition irrespective of the petitioner's financial incapacity and repeated, unequivocal judicial indulgence. The Court observed that the legislative intent of releasing the prisoners on parole was to encourage good conduct and serve as a humanitarian and reformative measure, in which case, its conditions need to conform to constitutional mandates of fairness, reasonableness and non-arbitrariness under Articles 14 and 21. “Otherwise, instead of being a rehabilitative tool, it turns into a selective indulgence reserved for those with means or social capital. Parole is not and cannot be a privilege of the solvent. If it is to serve it's humanitarian purpose and legitimacy as an instrument of reform and reintegration, the prisoner's financial incapacity must never be allowed to operate as a disqualifier. Release on personal bond in such cases is not an act of charity but of constitutional compliance. The failure to recognize this amounts to arbitrary State action, liable to judicial intervention and correction.”While underscoring the unconstitutionality in the actions of the State, the Court held that a prisoner did not cease to be a rights-bearing individual merely because he was incarcerated. And further, economic incapacity could not be a constitutionally valid basis for hostile discrimination against the haves and have-nots. The Court further held that when the authorities were aware of a prisoner's indigence and inability to furnish the surety, it was highly unrealistic and unreasonable to impose such conditions. It also caused repeated humiliation to the prisoner and hurt his dignity because of poverty and inability to furnish surety bonds. In this background, the Court directed to waive off the condition of furnishing surety for the petitioner, and formulated the following guidelines for competent authorities for mitigating hardships to prisoner's release after being sanctioned parole:Amount of personal bond should be commensurate with the economic background and status of the prisoner, and not exorbitant, prohibitive or oppressive. While sanctioning first parole, appropriate surety should be imposed. But if before or at the time of such sanction, the Parole Committee was satisfied that the prisoner was indigent, it should not impose the conditions. If the condition of surety was imposed while sanctioning first parole and prisoner applied for waiver and the committee was satisfied of his poverty and inability to furnish, the condition should be waived off. If, earlier a prisoner was released on parole without furnishing surety bond, for his periodical parole, the Parole Committee should dispense with the requirement of surety bond unless it had reason (to be put on record) that during the interim, the prisoner became capable of furnishing surety. Once a convict was given the benefit of waiver of surety, immediate intimation to be made to Member Secretary, Rajasthan State Legal Services...

Poverty Can't Be Bar To Parole: Rajasthan High Court Waives Surety Condition For Indigent Life Convict, Frames Guidelines

Nupur Aggarwal

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