Source: Indian Express 

Introduction  

The Delhi High Court is examining a significant legal question about prisoner furloughs that could impact convicts' rights across the capital. At issue is a unique Delhi Prison Rule that prevents the executive from granting furloughs to convicts whose appeals are pending before higher courts, instead requiring them to seek permission directly from those courts. This rule has been challenged before the Delhi High Court since 2022, with petitioners questioning its constitutional validity under Articles 14 and 21. The controversy has broader implications for prisoners' rights and rehabilitation, as furlough is traditionally seen as an important tool for helping long-term inmates maintain family ties and break the monotony of imprisonment. 

Does the Delhi Prison Rules' Restriction on Granting Furlough During Appeals Violate Constitutional Rights? 

Background  

• The controversy stems from Chapter XIX of the Delhi Prison Rules 2018, specifically Note 2 of Rule 1224, which removes the executive's power to grant furlough when a convict's appeal is pending before higher courts.  
• This rule can be traced back to the Parole/Furlough Guidelines of 2010, which were approved by Delhi's Lieutenant Governor.  
• The distinction between furlough and parole is significant here - while parole suspends a sentence temporarily, furlough allows the sentence to continue running despite the prisoner's temporary release.  
• The Delhi prison administration has defended the rule in an affidavit before the High Court, stating it was included "consciously by the Government of NCT of Delhi." 
• The rule's origins can be connected to the landmark case of KM Nanavati v. State Of Maharashtra,1961 where in 1960 the Supreme Court had ruled that governors cannot suspend sentences when matters are pending before the SC.  
• According to National Legal Services Authority (NALSA)'s submissions, several other states also follow similar practices of not providing parole or furlough during pending appeals.  
• This matter has gained additional significance as it affects not just Delhi but has prompted the Supreme Court to add eight more states as parties to related litigation. 

Court Observation  

• Justice Amit Mahajan's bench made several crucial observations about the interpretation and implications of the Delhi Prison Rules. 
• The court determined that the term 'high court' in Note 2 of Rule 1224 should be interpreted to include the Supreme Court when it serves as the appellate court. 
• The bench observed that once a superior court admits an appeal, all proceedings of lower courts merge with the appeal, transferring their powers to the appellate court.  
• The court distinguished this case from the principle established in the KM Nanavati case, noting that the derogation of power principle applies only when rules explicitly forbid executive consideration of furlough applications.  
• Justice Amit Mahajan observed that the Rules have deliberately transferred the jurisdiction from the executive to the judiciary in cases of pending appeals.  
• The court found that the farmers' intention was clear in not entertaining furlough applications during pending appeals.  
• Given the constitutional implications, the court referred four key questions to a division bench, including potential violations of Articles 14 and 21, and the impact on the reformative approach to imprisonment.  

Differences between parole and furlough ? 

• Nature of Release: 
  • Parole involves suspension of the sentence during the release period 
  • Furlough counts as part of the sentence served (continues to run during release) 
• Purpose: 
  • Parole is granted for specific urgent reasons or exigencies (like family emergencies) 
  • Furlough is granted to help prisoners maintain family/social ties and break prison monotony 
• Reason Requirement: 
  • Parole requires explicit reasons like death in family or wedding of blood relative 
  • Furlough doesn't require any specific reason and is granted periodically 
• Approval Authority: 
  • Parole is granted by the Divisional Commissioner 
  • Furlough is granted by the Deputy Inspector General of Prisons 
• Duration & Frequency: 
  • Parole can extend up to one month and can be granted multiple times 
  • Furlough is limited to fourteen days with restrictions on frequency 
• Sentence Length Application: 
  • Parole is considered for short-term imprisonment 
  • Furlough is typically granted for long-term imprisonment 
• Legal Status: 
  • Parole is purely discretionary and not a right 
  • Furlough is generally considered a matter of right for eligible prisoners, though subject to conditions 
• Period Counting: 
  • Parole period does not count towards sentence completion 
  • Furlough period counts as time served in prison 

What are the Legal Provisions for Furlough and Parole? 

• Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS): 
  • Section 473: Power to suspend or remit sentences. 
  • The appropriate Government has the power to suspend or remit sentences, with or without conditions, at any time after a person has been sentenced for an offence. 
  • When considering applications for suspension or remission, the Government may seek the opinion of the presiding Judge who convicted or confirmed the conviction, along with reasons and relevant trial records. 
  • The Government can cancel a suspension or remission if conditions are not met, leading to potential rearrest of the person to serve the unexpired portion of the sentence. 
  • Petitions for suspension or remission (except for fines) for persons over 18 must be made while the person is in jail, either through the officer in charge or with a declaration of imprisonment if made by another person. 
  • These provisions apply to all orders restricting liberty or imposing liability, with the "appropriate Government" being either the Central Government for Union matters or the State Government for other cases. 
• Prisons Act 1894: 
  • Furlough and Parole Rules, made pursuant to Section 59 of the Prisons Act 1894. 
  • The grant of furlough is regulated primarily by Rule 3 and Rule 4 of prison rules. 
  • Rule 3 provides the eligibility criteria for prisoners to be granted furlough, based on the length of their imprisonment. 
  • Rule 4 imposes limitations on the grant of furlough. 
  • The language "may be released" in Rule 3 indicates that furlough is not an absolute right of prisoners. 
  • Rule 17 explicitly states that these rules do not confer a legal right on prisoners to claim release on furlough. 
  • The furlough grant is a discretionary remedy, subject to the conditions under Rules 3 and 4. 
  • The Supreme Court has clarified that furlough is not a legal right of prisoners. 

Who Has the Authority to Suspend a Sentence or Grant Furlough During Appeals? 

Who Gets to Decide on Suspension of Sentence? 

• Historical case (KM Nanavati v. State of Maharashtra,1961 Case): 
  • The 1959 KM Nanavati case set a key precedent 
  • Governor Vijayalakshmi Pandit had suspended Nanavati's sentence before SC appeal 
  • Supreme Court's 1960 ruling established that governors cannot suspend sentences when matters are pending before SC 
  • This was seen as derogation of court's appellate powers 
• Current State Practices: 
  • Many states don't provide parole/furlough during pending High Court appeals 
  • NALSA provides this practice in Supreme Court 
  • States deny based on premise that convicts can seek orders from High Court 
  • Eight states (including UP, Bihar, Maharashtra) added as parties to related litigation 

Who has the Power to Grant Furloughs? 

• General Rule: 
  • Typically falls under executive domain 
  • Deputy Inspector General of Prisons usually grants furlough 
  • Divisional Commissioner handles parole 
• Delhi's Special Case: 
  • Delhi Prison Rules differ from general practice 
  • Rule vests power with courts where appeal against conviction is pending 
  • Executive can't grant furlough if appeal is pending before higher courts 
  • Convicts must seek directions from relevant court (HC or SC) 
• Parole vs Furlough Authority: 
  • Parole: Granted by Divisional Commissioner 
  • Furlough: Granted by Deputy Inspector General of Prisons (except in Delhi's case during pending appeals) 

Conclusion  

The Delhi High Court's upcoming decision on this matter could have far-reaching consequences for how prisoner furloughs are handled in the capital region. While Justice Amit Mahajan has already interpreted that the term 'high court' in the rule includes the Supreme Court, fundamental questions about prisoners' rights and rehabilitation remain to be addressed by a division bench. The case touches on the delicate balance between judicial oversight and executive authority in prison administration, particularly when cases are under appeal. As the matter moves to a division bench for examination of its constitutional validity, the outcome could influence how other states approach similar policies regarding furlough during pending appeals.