The Bombay High Court recently upheld a provision denying furlough to rape convicts, asserting that "kindness to the convicts does not result in cruelty to the society".
The Bench comprising Acting Chief Justice V.K. Tahilramani and Justice M.S. Sonak observed, "It would be dangerous to the society to release such a person on furlough merely out of consideration of penal reform and humane treatment. As observed earlier, consideration of sympathy for him cannot be permitted to overshadow the consideration regarding the security of the society."
The Court was hearing a petition filed by one Pundalik G. Gole, who had challenged denial of furlough to him. Gole had been convicted in December 2013, for offences of rape, unnatural sex, attempt to murder, among others, and sentenced to life imprisonment by a Sessions Court.
He had been denied furlough on the basis of a State notification adding rape convicts to Rule 4(2) of the Prisons (Bombay Furlough and Parole) Rules, 1959 which lists down the offences for which furlough can be refused. He had now contended that the provision is arbitrary and not based on any rational principle, thereby being violative of Article 14 of the Constitution of India.
The State, on the other hand, had asserted that furlough is not a right of the prisoner, and that the distinction made by the provision is consistent with the legislative scheme of not permitting such convicts and prisoners to mingle with the society.
Striking a balance
At the outset, the Court emphasized on the need to protect the society from criminals, observing, "In introducing penal reforms, the State that runs the administration on behalf of the society and for the benefit of the society at large cannot be unmindful of safeguarding the legitimate rights of the citizens in regard to their security in the matters of life and liberty.
It is for this reason that in introducing such reforms the authorities cannot be oblivious of the obligation to the society to render it immune from those who are prone to criminal tendencies and have proved their susceptibility to indulge in criminal activities by being found guilty (by a Court) of having perpetrated a criminal act."
Thereafter, it noted the legislative intent behind the provision was to balance the rights of convicts with the need to safeguard the citizens. It asserted, "It is, therefore, understandable that while meting out humane treatment to the convicts, care is taken to ensure that kindness to the convicts does not result in cruelty to the society. Naturally enough the authorities would be anxious to ensure that the convict who is released on furlough does not seize the opportunity to commit another crime when he is at large for the time-being under the furlough leave granted to him by way of a measure of penal reform. This appears to be the object underlying Rule 4 which enjoins that prisoners falling under specified categories shall not be enlarged on furlough."
Rape not the same as murder
Thereafter, the Court concluded that the gravity of offence can be a basis for valid classification, and rejected the contention that if murder convicts can be granted furlough, rape convicts can be as well. Primarily, the Court differentiated the motive behind the two crimes, opining that as far as murder is concerned, it is committed under "some real or imagined provocation or in a moment of passion and the perpetrator of the crime usually has a motive or animus against a particular individual or individuals and not against the society at large".
The Court then explained that on the other hand, in case of offences such as rape, dacoity, terrorism and kidnapping, "any victim is a good victim and the entire society is exposed to the risk". Besides, it opined that such a convict cannot claim it as a matter of right to mingle with the society, explaining,
"One cannot, therefore, ignore that if the conviction is for offences like terrorist act or rape or kidnapping, then, release of such prisoners on furlough would be considered to be dangerous or otherwise detrimental to public peace and order. They may harm the victim/complainant or the witnesses who have deposed against them. The tendency to take revenge cannot be ruled out. Moreover, they can make a victim of any person from the society. Any person is a good victim for them. Therefore, mingling of such persons with the society will not be in the interest of society and that is a valid reason for this categorization."
The Court, therefore, upheld the classification made by the provision, and ruled, "We are of the opinion that the classification has a rational basis and has a distinct nexus with the underlying object of the legislation and that it does not introduce any element of hostile discrimination. In the result, we come to the conclusion that sub-rules 2 of Rule 4 is valid and intra vires and not vulnerable to the charge of being violative of Article 14 of the Constitution of India."