In this article, Bhumica Veera from Kirit P.Mehta School of law discusses Open Prisons in India.
“Society must strongly condemn crime through punishment, but brutal deterrence is a fiendish folly and is kind of a crime by punishment. It frightens never refines; it wounds never heals”
Justice Krishna Iyer
In December 2015, United Nations adopted the Standard Minimum Rules for treatment of Prisoners (Nelson Mandela Rules) which enlisted the rights of the prisoners such as Right to life including the right to contact the outside world, right to proper sleep and clothing, right to security, right to proper healthcare etc.
The concept of Open Prisons
The paradigm of Reformative Punishment does not support the traditional inhuman jails with bars but is more liberal and supports the concept of open prisons, which is a trust-based prison with minimum security.
The concept of Open prisons was first developed in U.K in the 1930s and was based on the idea of ‘carrots’ rather than ‘sticks’.
This open prison helps the prisoner to gradually connect with the world before the release.
In India currently, there are 69 Open Jails:
- Rajasthan (29), and
- Maharashtra (13) having the highest number.
As per the data of 2015:
- Open prisons have 3786 prisoners out of which 2227 prisoners are in the Maharashtra and Rajasthan prisons.
- Almost 60% of the total prisoners in the open prisons are concentrated in two states.
- Many states have an open prison but do not accommodate any prisoners.
- The reasons for this overcrowding and at the same time under-utilization could be because the Jails are a part of the state list and hence a collaborative approach cannot be adopted by the states.
- Open Jails are prisons without boundaries and cells
In open jails the prisoners are given the liberty:
- To live with their families
- Allowed to find employment
- Prisoners can move out of the prison for their work and are supposed to come back to the prison campus after their working hours.
The open jails in India involve the prisoners in activities like:
- Animal husbandry etc.
- Convicts can be sent to Open jails for two purposes
- For the purpose to slowly cut down his/her level of socialization, instead of directly confining the convict in a closed prison, as this can negatively affect the mental health of the prisoner.
Secondly, in order to help the prisoner to slowly re-socialize with the world. While serving in the closed prison, the prisoner is bound to lose touch with the outside world and hence wouldn’t be able to rehabilitate himself after the release.
However, in India, only the second scenario is accepted. Rajasthan, Maharashtra and Himachal Pradesh have the maximum number of active open prisons in India. Some of the most popular Open Prisons are located in:
- Bikaner etc
Prisoners are transferred from closed to traditional prison. Only selected prisoners are transferred from closed or traditional prison to an open prison. These prisoners in Maharashtra generally do agricultural work to earn their living and prisoners in Rajasthan also work at factories and industries.
The money earned by these prisoners is spent by them for their families and no amount except a small administration charge is to be paid to the Jail.
Every morning at 6 a.m. a roll call takes place after which the prisoners are allowed to move out and another roll call is scheduled at 7 p.m., till then the prisoners are expected to return to the prison.
These prisons exist for almost 8 decades now, however, no complaints of any prisoner escaping have come forward.
The condition open prisons in India
The conditions of prisons in India has been severely criticised. There have many cases of
- Custodial violence
- Custodial deaths
- Suicides, and
Overcrowding etc. in Indian jails.
As per the NCRB’s 2015 data:
- 77 deaths were caused due to custodial suicide, and
- 11 deaths due to custodial murders which shows the poor administration and structure of Indian Prison system.
- The Supreme Court has time and again given directions on Prison Reforms, In many cases, the Supreme Court has actively endorsed the Open Jail system.
- The basis on which the selection of these prisoners is done
Open Prison rules in Maharashtra
The selection is governed by Maharashtra Open Prison Rules, 1971. As per the act a Selection Committee consisting of:
- Inspector General
- Deputy Inspector general
- Superintendent of the Prison, and
- Superintendent of the Open Prison is formed
- Selection is done on the basis of:
- Good behavior
- Mental and physical fitness
- The period of imprisonment etc.
However, there is a long list of the ineligibility criteria, of which some are completely arbitrary for e.g.
- Women prisoners
- Convicts of narcotics
- Prisoners with any history of mental illness
- Professional murderers
- Convicts of crimes like:
- Collection of arms
- Crimes against the army etc.
This provision eliminates the possibility of rehabilitation of a large number of convicts, who are actually in need of it and offers rehabilitation to those are who are not in dire need of it.
However, the committee can consider certain special cases even if they’re ineligible.
Open Prison Rules in Rajasthan
As per the Rajasthan Prisoners open-air camp rules, 1972 the Open Jails aim at encouraging and rewarding good behavior and give prisoners an opportunity to social adjustment and economic independence.
In Rajasthan the Jail Superintendent sends the list of potential prisoners to the Open Air Camp Advisory Committee and the decision is taken by the committee.
The eligibility criteria are similar to that of Maharashtra however, the convict is expected to spend 1/3rd of the sentence in a closed prison.
Even in Rajasthan, arbitrary provisions for ineligibility exist such as:
- Convicts not having an abode in Rajasthan or
- Have a place of Residence outside Rajasthan
- Prisoners below the age of 25 or above the age of 60
- Civil prisoners
- Unmarried prisoners
- Prisoners with any history of mental illness
- Professional murderers
- Convicts of crimes like a collection of arms, sedition, crimes against the army etc.
Although women are given access to open jails the provisions of Rajasthan are stricter than those of Maharashtra. Such provisions don’t provide equality to the convicts and thus are violative of the rights of the prisoners.
The committee does not have the power to consider special cases, like Maharashtra.
Rajasthan also provides for a unique rehabilitation system, where every open prison has a panchayat consisting of 5 to 7 members, who are selected by the prisoners, amongst the prisoners.
This Panchayat looks after the daily management of the prison. This helps in improving communication and leadership in the prisoners.
Open Prison Rules in Himachal Pradesh
Himachal has 7 open prisons. The working is governed in a similar way as Rajasthan, however, the rape convicts, and convicts of other heinous crimes are also ineligible.
Criticisms of the Open Jails in India
Unnecessary and arbitrary provisions for ineligibility, which filter out many deserving convicts.
- Under-utilisation of the Open Prisons. These prisons have a capacity to accommodate 25776 prisoners however, only 3786 prisoners are currently in these prisons (as of 2015). This shows that despite the heavy overcrowding in the closed prisons, open prisons are vacant.
- The prisoners in most states are selected by a committee, who have no accountability over them, as they are not expected to provide reasons for their selections. This leads to partiality and corruption.
- No measures are taken for the convicts beginning their sentence. At least, semi-open prisons should be made open for the fresh convicts.
- No provision of Open Jails to under trial prisoners.
- Inadequate Open Prisons in every state. Some states are concentrated with Open Prisons while some have just one and no Union Territory in India has an Open Prison. Due to the state list subject, this inequality exists among different states.
- Open Prisons are the only rehabilitative prisons in India. Which also favor only a small number of convicts. There is a need for more rehabilitative provisions for other convicts, in order to reduce the amounts of custodial deaths.
- The rules and laws governing the selection and administration are extremely old and thus unfit for the present situations.
Reforms needed in the status quo
- The number of Open Prisons and better utilization of the currently existing ones through amendments to the rules and relaxation of the strict eligibility criteria.
- Efforts should be taken to move the subject of prisons to the union list. As this will bring in uniform reforms and every prisoner will get similar rights.
- In order to bring accountability in the selection procedure, the state committee should be compelled to provide reasons to the Chief Minister of the concerned state for the selection made. These documents should also be made available within the ambit of RTI so that common people can also get access to it.
- Semi-open Jail in order to provide rehabilitation to mentally disturbed prisoners, semi-open jails should be promoted. They do not provide complete liberty, but there are no prison cells and prisoners are provided with employment opportunities within the Jail campus. One of the finest semi-open jail in India is the Tihar Semi-Open Jail in Delhi.
- Supreme Court or the concerned High courts should also be given the jurisdiction to allow certain prisoners to directly go to the Open Prison.
- Every prisoner whether in open or closed prison should be made aware of his/her rights and should be informed about the process of selection to open prisons. This will not only give the required information to the prisoners but will also reinforce good behavior among these prisoners.
The concept of open prison has existed in India since almost 7/8 decades, however, many states still do not have enough open prisons. With the current scenario of overcrowding of Jails, it is extremely important to build and utilize the open prisons. Open prisons are excellent in providing rehabilitative justice, as it helps the convicts to re-socialize with the world before they’ve completed their sentence. Although the existing open prisons are well- managed and have a good record in the past there is still room for improvement in terms of laws and rules. Active measures should be taken to amend these rules, to provide access to justice to all the prisoners. This system if properly utilized will also help in reducing the custodial deaths.
References Re: Inhuman Conditions in 1382 Jails. Supreme court of India. 2017.
http://supremecourtofindia.nic.in/supremecourt/2013/18545/18545_2013_Judgement_15-Sep-2017.pdf Standard Minimum Rules for treatment of Prisoners. United Nations. 2015.
https://www.unodc.org/documents/justice-and-prison-reform/GA-RESOLUTION/E_ebook.pdf Maharashtra Open Prison Rules, 1971.
http://mahaprisons.gov.in/Uploads/pdf_GR/69170524-f83d-4be5-9092-13c3f70a177aChapter_2.pdf Rajasthan Prisoners open-air camp rules, 1972.
http://home.rajasthan.gov.in/content/dam/homeportal/homedepartment/pdf/RulesGroup12/OPEN%20AIR%20CAMP%20RULES%2C%201972.pdf Himachal Open-Air Prisons Notification, 1977.
http://admis.hp.nic.in/hpprisons/Downloads/open%20air%20notification.pdf Reformative Theory of Punishment. Raw octopus blog.
 Rajasthan State Legal Services Authority. Press note on Open Prison
http://rlsa.gov.in/pdf/pressnote_271117.PDF NCRB Data on Number of Jails in India.
https://data.gov.in/resources/stateut-wise-and-jail-type-wise-number-jails-their-location-and-video-conference NCRB data on Number of prisoners in Open Jails In India
Ebooks Ghosh. Open Prisons and Inmates- A socio-psychological study.
https://books.google.co.in/books?id=kG5J5XTcJlwC&printsec=frontcover&dq=open+prisons&hl=en&sa=X&ved=0ahUKEwjsmen6_9LZAhVGXLwKHThWAbsQ6AEILTAB#v=onepage&q=open%20prisons&f=false Nitai Chowdhury. Indian Prison laws and correction of prisoners. https://books.google.co.in/books?id=eEt7sYvMgSEC&pg=PR9&dq=open+prison+laws&hl=en&sa=X&ved=0ahUKEwjZ2_il6tTZAhXCrI8KHbwmCCkQ6AEIKDAA#v=onepage&q=open%20prison%20laws&f=false