Not Adjusting Covid-19 Parole Period Towards Sentence May Risk Prisoners' Constitutional Rights: Punjab & Haryana HC Asks Govt To Frame Guidelines

Observing that "individual released on involuntary parole during the pandemic could face a risk of violation of constitutional rights if required to return to prison without adjusting their sentences," the Punjab & Haryana High Court has directed the Punjab government to take a "considered decision" on whether the parole granted to prisoners during COVID-19 would be counted towards the sentence served by them.

Justice Arun Monga said, "...it would be in the fitness of things to direct the respondents to take a considered decision and pass appropriate orders as to how the period of temporary release of the petitioner and other similarly placed large number of prisoners during and owing to the Covid-19 pandemic is to be treated specifying whether or not the same would count, and if yes, to what extent, towards the total period of their sentence."

The Court also cited imprisoned poet Oscar Wilde's poem "Ballad of Reading Goal" stating that the words resonate in the ears

"I know not whether Laws be right, Or whether Laws be wrong,

All that we know who lie in gaol (prison) Is that the wall is strong;

And each day is like a year,

A year whose days are long..."

Raising concern over threat to prisoner's right to personal liberty which includes "protection from unjust arrest", the Court elucidated, "to strike a balance between public health needs and constitutional protections, it is vital for concerned executive authorities and policymakers to establish clear guidelines regarding the treatment of parole periods during extraordinary situations such as a pandemic."

These guidelines should incorporate appropriate provisions for crediting the time spent on parole against an individual's original sentence, thus preventing any potential violation of their fundamental rights under Article 21, the bench added.

To explain further the Court gave an illustration, "imagine a person sentenced to two years of imprisonment in 2019. In the following year, 2020, due to the Covid-19 pandemic, this individual is granted involuntary parole for 11 months. After the involuntary parole period ends, he is to surrender back in jail. If the authorities start counting the imprisonment period from the date of surrender, it would result in the individual serving a sentence longer than the original two- year term. Such an outcome would violate Article 21 of the Indian Constitution, which safeguards an individual's choice and fundamental right to life and personal liberty."

The Court was hearing a batch of petitions on the question whether involuntary/forced parole is to be regarded as suspension or substitution of sentence?

Justice Monga opined that failing to credit the involuntary parole duration towards the sentence could potentially lead to an individual enduring incarceration beyond what was originally determined by the judiciary, thereby infringing on their constitutionally protected right.

The Court emphasised on the role of Parole and said, "...the main goal of parole is to help prisoners reintegrate into society, beyond just their immediate family. However, the State Government's parole policies during the Covid pandemic didn't succeed in achieving this aim. They led to unnecessary delays in determining eligibility for sentence remission. In situations where a prisoner doesn't request temporary parole with the goal of serving their entire sentence promptly, the exclusion of special involuntary parole in the actual sentence puts the petitioner at a disadvantage. This exclusion effectively prolongs the petitioner's sentence."

Moreover, even though the official count for the parole period may have paused, a person's biological clock keeps ticking throughout the period of such involuntary release, added  the bench.

Amicus Curiae Amarinder Singh informed the Court that Delhi government had decided that upto 8 weeks of the COVID-19 parole will be counted in actual sentence of the prisoners. Similarly, Madhya Pradesh government decided to count in upto 60 days.

"In the case of Punjab also, there is no bar that the COVID-19 Special Parole is not to be counted towards actual sentence of all prisoners. The decision qua the same has somehow yet to be taken by the State, while the prisoners languish with the flickering hope, that like their counterparts in other states, they too shall one day be accorded the similar benefit. Living each day in despair and hope, thinking that "In the stillness of lockdown, each moment on parole contributes to the ultimate goal of sentence completion," observed the Court.

Reliance was also placed on Mubin Khan v. State of Maharashtra, in which the Supreme Court  granted liberty to the Maharashtra government to take a policy decision as to whether the Covid Leave period of parole of a convict can be considered for calculating his period of actual sentence or not and whether such a decision is to be applied to all the prisoners or some exceptions are required to be made.

In the light of the above, the Court directed the State to take a considered decision keeping the observations and decision of the Court in mind.

Appearance: Advocate Amarinder Singh Amicus curiae in CRWP-3217-2022.

Dheeraj Jain, Advocate Amicus curiae CRWP-3226-2022.

Madhur Sharma, AAG Punjab.

Citation: 2023 LiveLaw (PH) 200