Denying Furlough To Prisoners Under MCOCA & POCSO Is A Constitutional Issue, Bombay HC Refers Matter To Larger Bench

Mumbai: The Bombay High Court has flagged a significant constitutional issue over the denial of furlough to prisoners convicted under special laws and referred to a larger bench the question of whether such blanket exclusions under statutes like MCOCA and the POCSO Act can withstand scrutiny under fundamental rights.

Nagpur Bench of Justices Anil Pansare and Nivedita Mehta

A bench of Justices Anil Pansare and Nivedita Mehta, of the Nagpur bench, on April 10, passed the order while hearing a plea filed by Rohit Tangappa Joseph, an aide of gangster Chhota Rajan and a convict in the murder of journalist J Dey.

Joseph approached the court after Amravati prison authorities rejected his furlough application based on a December 2024 amendment to the Maharashtra Prisons (Furlough and Parole) Rules. The amendment bars furlough for those convicted for serious offences under special statutes like the Maharashtra Control of Organised Crime Act (MCOCA), Protection of Children from Sexual Offences (POCSO) Act and others.

High Court Notes Conflicting Earlier Judgments

The HC noted conflicting earlier judgments on the issue and said a definitive ruling was needed. It directed that the matter be placed before the Chief Justice for the constitution of a larger bench.

Questioning the blanket ban, the court observed that such restrictions undermine the purpose of furlough. “The objective of furlough is to enable prisoners to remain in touch with their families… to provide relief from the detrimental impact of continuous captivity… and to enable prisoners to remain hopeful about their future,” it said.

Bench Finds No Rationale to Treat Prisoners Under Special Laws Differently

The bench found it difficult to justify why prisoners convicted under specific statutes should be treated differently. “We do not find any rationale as to why should prisoners… be not permitted to remain in touch with their families,” the court remarked, adding that denying furlough solely based on the nature of the offence would defeat its reformative purpose.

While acknowledging that furlough is a conditional privilege, the court stressed that restrictions should be based on factors like conduct and societal interest, not merely the category of offence. It held that a blanket prohibition “would undermine the very objectives for which furlough is granted.”

Bench Highlights Varying Roles in Organised Crime Cases

The bench also highlighted the complexity of organised crime cases, where individuals play varying roles. Treating all convicts alike for furlough eligibility, it said, “would amount to treating unequals as equals,” violating Article 14.

Referring to POCSO cases, the court noted that some involve consensual adolescent relationships, and a blanket denial of furlough in such cases could cause irreparable harm. It cautioned against presuming that all convicts under special laws are beyond reform, stating that such an approach “runs contrary to human psychology.”

Though it expressed the view that the rule may be ultra vires Articles 14 and 21, the bench refrained from striking it down due to earlier contrary rulings. It framed the legal question on the validity of the rule and left it for the larger bench to decide.

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