'Prisoner Can't Be Given Parole To Beget A Child' : Rajasthan Govt Approaches Supreme Court Against HC Order

On April 5, 2022, a division bench of Rajasthan High Court, Jodhpur observed that denial to the convict-prisoner to perform conjugal relationship with his wife more particularly for the purpose of progeny would adversely affect the rights of his wife. In this regard, the court granted 15 days parole to the life convict. 

According to the appellant state government, the order is in violation of the Rajasthan Prisoners Release on Parole Rules, 2021 (2021 rules).

As per the plea, the Respondent is currently lodged at the Central Jail, Ajmer and is serving sentence awarded to him for offences committed under various provisions of the Indian Penal Code including sections 302 [Punishment for murder] and 34 [Common Intention] and sections of the Arms Act, by the the Additional District and Sessions Judge in 2019.

Till date, he has undergone imprisonment of around six years out of the sentence of life imprisonment awarded to him including remission. His wife moved an application before the District Collector-cum-Chairman, District Parole Committee, Ajmer for 15 days parole for want of progeny. While the said application was pending, she preferred a writ petition before the Rajasthan High Court.

It is the appellant's case that the respondent has not even followed procedure while making the application for parole, which in the first instance has to go to the jail superintendent. However, she straightaway approached the District Collector.

Despite the procedural lapses, the High Court, in contravention of the Rajasthan Prisoners Release on Parole Rules, 2021, allowed the writ petition and ordered the respondent's release on parole for fifteen days.

The SLP refers to Section 16 (1) of the 2021 rules which specifically lists out the ineligibilities for release of prisoners on parole. It categorically lists out offenses for which if a prisoner is convicted, cannot be released on parole unless they have served half of the sentence including remission.

"Under the said section, a person convicted for an offence committed under section 302 of the IPC has been mandatorily considered ineligible for release on parole. As per Section 17(d) of the 2021 rules, life sentences shall, for the purposes of these rules, be reckoned as 20 years. Admittedly, the Respondent has served only 6 years and 6 months of his sentence, thereby making him ineligible", the appeal plea points out.

Also, grant of parole in emergent cases, is restricted to the grounds mentioned in Section 11. When the law has been clearly laid down, the High Court could not have arbitrarily added a ground based on extraneous considerations, the appeal argues.

Moreover, the Parole Rules u/s 6 also provides for exceptions in certain cases on humanitarian grounds, wherein the District Committee may recommend the case to the Government for relaxation of rules. In the instant case, the Respondent, admittedly ineligible for parole, has been granted emergent parole on the ground for which there is no provision under Section 11. This not only is entirely in contravention of substantive law, but would also set a damaging precedent if not set aside, the appeal plea submits.

"It is pertinent to mention that keeping in mind certain humanitarian and familial considerations, Section 11 of the Parole Rules lay down specific grounds for parole; namely critical health condition of a family member, death of a relative, damage to life or property from a natural calamity, marriage of a prisoner or his family members and delivery of prisoner's wife. These grounds have been added by the legislature after much consideration of the "emergent" situations that a convict could encounter in life during the period of incarceration…… Pertinently, the Hon'ble High Court itself noted in the impugned judgment that there is no provision in the Rajasthan Prisoners Release on Parole Rules, 2021 for releasing the prisoner on parole on the ground of his wife to have a progeny and it certainly does not qualify as an "emergent" situation."

The appeal also states that the High Court had passed an arbitrary order releasing the convict on parole, based solely on the right of the convict's wife to a child and completely ignoring the rights of the victims of the convict's crime.

Further, the appeal submits,

"BECAUSE while the Hon'ble High Court has considered the religious, cultural, philosophical and humanitarian rights of the convict to procreation/preservation of lineage, failed to appreciate that this very philosophy used to benefit the convict, also urges the same person to walk on the moral path in his life to earn prosperity and attain moksha/self-actualization. The Respondent after having taken another person's life, should not be granted benefits of such philosophies without performing the obligations."

The Rajasthan High Court's order, while granting parole had referred to the various religious & sociological aspects of progeny. 

Based on these submissions, the appeal seeks to set aside the Rajasthan High Court order passed in April. By way of interim prayer, the appellant also seeks a stay on the High Court order.