Tag: Liberty

Scandal, Defamation and injury to Reputation

Right to Good reputation is part of 

Fundamental right of life and freedom of expression

A forged letter used to make defamatory complaint:

A letter dated 22.4.2011 purported to have been written by Shri M.A. Khan, M.P., suggests that various properties had been purchased by respondent no.2 as benami and the copies of the sale deeds etc. filed alongwith the said letter fortify the same. The Government of India wrote a letter to the Chief Secretary, Govt. of A.P. on 5.5.2011 to conduct an enquiry in respect of alleged disproportionate assets Continue reading “Scandal, Defamation and injury to Reputation” →

Conviction, Sentence and Parole

Balancing conviction, sentence and parole of the prisoners:

Object of parole is three fold:

  • Firstly, the use of parole as a motivational force for reforming the prisoners.
  • Secondly, to keep the family ties intact as the family ties are likely to be broken because of the long periods of incarcerations.
  • Thirdly, to slowly draw the misled soul back into the folds of the society. Since, punishment should be more reformative and less retributive, the role of parole as a reformative measure has to be acknowledged. By denying parole at the drop of a hat is to ignore the importance of parole in the jail administration.

[Source Buddhi v. State of Rajasthan, 2005 (10) RDD 4380. (Supreme Court of India)]

Importance of reform of Prisoner:

We feel that correctional strategy is integral to social defence which is the final justification for punishment of the criminal. And since personal injury can never psychically heal, it is obdurate obscurantism for any legislative criminologists to reject the potential for prisoner re-socialisation from the calculus of reformative remission and timely release. ……..We need not tarry long to tell the truth that every sinner has a future, given the social chance, and every prisoner a finer chapter as a free person, given the creative culturing of his psychic being.”

Objective of penology:

“A Judicial journey to the penological beginning reveals that social defence is the objective. The triple purposes of sentencing are retribution, draped sometimes as a public denunciation, deterrence, another scary variant, with a Pavlovian touch, and in our era of human rights, rehabilitation, founded on man’s essential divinity and ultimate retrievability by raising the level of consciousness of the criminal and society. We may avoid, for the nonce, theories like ‘society prepares the crime, the criminal commits it;’ or that crime is the product of social excess’ or that’poverty is the mother of crime’.”

Human dignity requires compassion for convicts:

“The mood and temper of our Constitution certify that arbitrary cruelty to the prisoner and negative attitude to reformation of the individual are obnoxious. Even the recent ruling in Bachan Single on the vires of death penalty upholds this high stance.”
“Human dignity, emphasised in the Preamble, compassion, implicit in the prescription of fair procedure in Art. 21, and the irrationality of arbitrary incarceratory brutality violative of Art. 14 invest the demand for a reformatory component in jail regimen with the status of a constitutional requirement. “

Conclusions on conviction, sentence and reforms:

(12) In our view, penal humanitarianism and rehabilitative desideratum warrant liberal paroles, subject to security safeguards, and other humanizing strategies for inmates so that the dignity and worth of the human person are not desecrated by making mass jails anthropoid zoos. Human rights awareness must infuse institutional reform and search for alternatives.
(13) We have declared the law all right, but law-in-action fulfils itself not by declaration alone and needs the wings of communication to the target community. So, the further direction goes from this court that the last decretal part is translated and kept prominently in each ward and the whole judgment, in the language of the State, made available to the inmates in the jail library.
(14) Section 433A does not forbid parole or other release within the 14-year span. So to interpret the Section as to intensify inner tension and intermissions of freedom is to do violence to language and liberty.

[Source: Maru Ram v. Union of India, 1981 (1) SCC 107. (Supreme Court of India)]

Denial of Parole:

In exercise of powers conferred by sub-section 6 (6) of Section 401 of the Code of Criminal Procedure, 1898 (Old Act), the Government of Rajasthan framed the Parole Rules known as Rajasthan Prisoners Release on Parole Rules, 1958. The Rule 9 thereof is as under:-

“9. Parole period.- A prisoner, who has completed with remission, if any (one-fourth) of his sentence and subject to good conduct in the Jail, may be released on 1st parole for 20 days including days of journey to home and back, and for 30 days on 2nd parole provided his behaviour has been good during the 1st parole and for 40 days on third parole provided his behaviour has been good during the second parole. If during the third parole also the prisoner has behaved well and his character has been exceedingly well and if the prisoner’s conduct has been such that he is not likely to relapse into crime, his case may be recommended to the Government through the State Committee for permanent release on parole on such conditions as deemed fit by the Superintendent Jail and the District Magistrate concerned; the chief condition among them being that if the prisoner while on parole commits any offence or abets, directly or indirectly, commission of any offence, he has to undergo the unexpired portion of the sentence in addition to any sentence imposed upon him by reason of such an offence. In case the permanent release on parole is rejected, the prisoner will be eligible for release on parole for 40 days every yearsubject to the same conditions for the remaining of his sentence;
Provided that cases of prisoners who have been sentenced to imprisonment for life, for an offence for which death penalty is one of the punishments provided by law or who have been sentenced to death but this sentence has been commuted under Section 433 of Code of Criminal Procedure into one of life imprisonment shall not be placed before the State Committee for permanent release on parole unless he has served 14 years of imprisonment excluding remission, but including the period of detention passed during enquiry, investigation or trial. Such prisoners may be released on parole for 40 days every year for the remaining period of their sentence subject to the conditions stated above.”

Permanent release of prisoner on Parole:

“So far as permanent release on parole is concerned, it cannot depend upon the prisoner’s availing or non- availing the benefit of first, second and third parole and the prisoner can show his behaviour while serving sentence in prison to be of standard on the basis of which, the prisoner can be released on permanent parole which may be of such standard as it would have been of the standards if prisoner would have been released on parole and lived outside the prison where he may have shown while on parole. In such cases the prisoner’s character and conduct within jail will be relevant. In case, he because of his ignorance or because of lapse on the part of jail authorities of not bringing in the knowledge of the prisoner about his right under rule 9, 17 missed the opportunity to avail the benefits of first, second and third or any of the above parole but not because of his fault then such person can not be denied the benefit under the Rules of 1958.
The aim and object behind framing the Rules of 1958 are very important because of simple reason that after the life, the liberty is most important right of a person and if one is entitled to or can be given liberty even for short period, then such liberty cannot depend upon procedural formalities of moving application and seeking liberty, particularly when liberty has been taken away of such person (though, in accordance with law) or is under control of some authority who has lawful right to restrict the liberty of a person as in the case, after conviction of a person. It is more important because of the reason that in spite of the fact that persons are lodged in prison because they committed crime and some of the crimes may be of very heinous nature and the law framers were conscious of the fact that some offenders may not be lightly released on parole, yet they made provision in the Rules of 1958 by enacting rule 14 by using liberal language for release of offenders who have committed heinous crimes and provided that the classes of prisoners mentioned in sub-clauses (a) to (d) ordinarily will not be eligible for release on parole. The law framers have not prescribed total ban on the release on parole of prisoners who have committed heinous offences referred under clauses (a) to (d) under rule 14. This also suggests towards the intention of the law framers that even the penal law should be reformative in nature so as to reform the person and to achieve the object of law to punish the offender with clear aim and object to reform the offender so that he can adjust and settle in the society again and may be given more opportunities to interact with his family members and society.”

[Source: Srawan Kumar v. State. (High Court of Rajasthan, India)

In reaching the above conclusion the Rajasthan High Court relied upon following definition of parole given in Wikipedia:

All of the meanings originated from the French parole (“voice”, “spoken word”). Following developed a plan to prepare them (prisoners) for eventual return to society that involved three grades. The first two consisted of promotions earned through good behavior,labor, and study. The third grade in the system involved conditional liberty outside of prison while obeying rules. A Violation would return them to prison and starting all over again through the ranks of the three grade process.