21, Jan 2021 | Shirin Jaiswal
The concept of the open prison is based on the premise that freedom and socialisation are the best reformers. Out of a total of 63 such facilities across India, 29 are located in Rajasthan.
People do make mistakes and I think they should be punished. But they should be forgiven and given the opportunity for a second chance. We are human beings.”
___ David Millar
The Black’s law dictionary describes prison as “a public building or other place for the confinement or safe custody of persons, whether as a punishment imposed by the law or otherwise in the course of the administration of justice” hence reaffirming the concept of the traditional three walled prisons. Even when we think of prisons, an image of a cell which is three walled and front made up of bars immediately comes to mind. A bed made up of stone or of any hard material with a little raised portion on one side to give the effect of pillow along with a bed sheet. Prisons were built an idea to keep offenders away from society, secluded at some distance away from society. Another concept behind the constructions of prisons was to curtail or slash the social life of the convict, i.e. keep those convicted away from family, friends, and relatives. The basic idea or principle that a person will or must live separate from society as a deterrence to prevent him from committing crime. Hence, the traditional prison or controlled prison was supposedly an extension of this deterrent theory of punishment. However, with changing times, a more reformative theory, based on the premise that a more humane approach even against a wrongdoer has come to be adopted.
Open Prisons are those prisons where there are less strict rules as compared to controlled jails. The other names for open prison are minimum security prison, open-air camps or prison without bars. The objectives behind setting up these prisons were overcrowding of jails, increasing costs to maintain controlled jails, as a reward for good behaviour, to make them self-dependent etc.
In Switzerland, an open prison was first established in 1891, then in the USA in 1916. The Hague conference which was conducted in 1952 suggested the organisation of open-air camps. In post-revolutionary America the penal policy was evolved on the question “how prisons could be organised to reduce the chance that the offender would repeat their criminal activity. This approach expressed a definite attitude towards human beings that they capable of reformation if given the proper opportunity.” In 18th century there was a revulsion against the theory of deterrence by two prison reformers, namely, John Howard and Jeremy Bentham. They shared a thought that institutions built to rehabilitate criminals would help in prevention of crime. This thought of reformation was put to test in the late 18th century by many institutions. However, this attempt to bring of reformation failed during practice trials. However, with the sustained efforts to bring reforms within Prisons, a Witzwill establishment was setup in Switzerland in 1891. It was only with the opening of the Witzwill establishment that the slow acceptance of the idea of open prison began.
The International Covenant on Civil and Political Rights (ICPPR) is the core international treaty on the protection of the rights of prisoners. India ratified the Covenant in 1979 and is bound to incorporate its provision into domestic law and state practice.” It provides that, “all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of human person”. Apart from civil and political rights, economic and social human rights are set up in International Covenant on Economic, Social and Cultural Rights, which states that prisoners have a right to the highest attainable standard of physical and mental health. The United Nations Standard Minimum Rules for the Treatment of Prisoners, 1955, although not legally binding, provides guidelines of inter-national and domestic law for prisoners and other persons in custody which are as follows:
- There shall be no discrimination on grounds of religion, race, colour, sex, and language, political or other opinion.
- Men and women should be detained in separate institutions.
- Due consideration should be given to the separation of different categories of prisoners.
- Separate residence should be provided for the young and child prisoners from adult prisoners.
The Universal Declaration of Human Rights, 1948 also provides that, “no one shall be subjected to torture or to cruel, in-human or degrading treatment or punishment”.
Under the Section 24 of Implementation of the Recommendations of All-India Committee on Jail Reforms, it was agreed that those prisoners who had spent satisfactorily a certain portion of the term of their sentence, should be transferred to open-air camps and allowed to lead a near-community life. These work-based camps would have a small inmate population and have bare minimum-security arrangements. Further, the inmates would work and earn parity wages. The UN Standard Minimum Rules for the Treatment of Prisoners (SMRs) were initially adopted by the UN Congress on the Prevention of Crime and the Treatment of Offenders in 1955, and approved by the UN Economic and Social Council in 1957. On December 17, 2015 the Standard Minimum Rules were revised and adopted unanimously” by the UN General Assembly as “The Nelson Mandela Rules.” India being a signatory of such document, these Standard Minimum Rules is to play a significant role in prison system and reforms in India.
“In India, the concept of the Open prison system can be traced back in 1836 when first All India Jail Committee was set up. However, the results were not satisfactory and a number of committees were appointed since then, the important one being, All India Committee on Jail Reforms 1956. The most significant committee which played a major role in the development of open prison system in India was The Mulla Committee. The Committee states regarding open institutions under Chapter XIX of the committee report.”
The first open prison was started in 1905 in Bombay Presidency in India. The prisoners were selected from the special class prisoners of Thane Central Jail, Bombay. However, this open prison was closed in 1910. The state of Uttar Pradesh established the first open prison camp in 1953 for the construction of a dam over Chandraprabha River near Benaras. After completing this dam, the prisoners of the Pen camp were shifted to a nearby place of constructing the dam over Karamnasa River. Encouraged by the success of these temporary camps, a permanent camp was started on March 15, 1956 at Mirzapur with a view to employing prisoners on the work of quarrying stones for Uttar Pradesh government cement factory at Churk, Mirzapur. The initial strength of prisoners in this camp was 150 which went up to 1,700 but has now come down to 800. Another permanent camp called Sampurnanad Shivirwas established in 1960 at Sitarganj in Nainital district in Uttar Pradesh. At the time of its establishment, Sampurnanand camp had 5,965 acres of land but later on 2,000 acres of reclaimed land were handed over to the Uttar Pradesh government for the rehabilitation of displaced persons. At present, thus, the Sitarganj camp has 3,837 acres of land and is one of the largest open prisons in the world.
Concept of Open Prisons in India
In India, there are a total of 63 open prisons and Rajasthan has the maximum number of open prisons at 29. The prisons are regulated by the Prison Act 1900 and each state follows their manual and rules on prisons. Every state in India has its own prison law like Rajasthan Prisoners Rules, 1979. The concept of open prison was brought in so that the prisoners who have a good conduct and behaviour can assimilate into the society without a having fear that society would not accept them. Also, it gives prisoners the chance to meet with their family members and be within the process of socialisation. It also reduces the overcrowding in controlled jails. Generally, it has been observed that prisoners in controlled jails are not provided with the good living conditions and are treated badly. Open prisons give them chance to live in a better condition and there is no or minimum security which reduces the chances of bad treatment and helps them to live with dignity.
Open Prison as a part of reformative theory
This theory is based on the object that punishment should be the reform of the criminal, through the method of individualisation. The humanistic principle should be adopted that even if an offender commits a crime, he does not cease to be a human being. Hence, whenever a judge dictates punishment, it is important for a judge to study the character and age of the offender, his early breeding, his education and environment, the circumstances under which he committed the offence, the object with which he committed the offence and other factors. The object of doing so is to acquaint the judge with the exact nature of the circumstances so that he may give a punishment which suits the circumstances.
Nelson Mandela Rules
The United Nations General Assembly adopted United Nations Standard Minimum Rules for the Treatment of Prisoners (“the Mandela Rules”) on December 17, 2015 after a five-year revision process. They came to be known as the Mandela Rules in honour of the former South African President Nelson Mandela. The Mandela Rules contains the 122 rules along with the principles such as philosophy of confinement and institutional equality.
The Standard Minimum Rules for the Treatment of Prisoners (SMR) serves as the universally acknowledged minimum standards for the treatment of prisoners. Though these rules are non-binding in nature they have acted as a base for legislations. It also serves as the guide for prison manual. They also serves as a guidelines for international and domestic law for citizens held in prisons and other forms of custody. The SMR is based on the principle that “There shall be no discrimination on grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”. The Mandela Rules laid out the minimum standards which should be applicable in prisons to safeguard a prisoner’s dignity.
The other key features of the SMR include access to medical and health services for inmates, disciplinary measures against erring jail staffers, investigation into deaths and torture in custody and inmates’ access to legal representation and complaint mechanism.
How does open prison operate in India-
- The prisoners can go to work at any place on a day but have to be back by evening.
- There is an absence of bars, wall and a minimum security is present.
- Family members are free to meet prisoners.
Eligibility of open prison in India-
- The candidate should abide by the rules of open prison and should be mentally and physically fit.
- They should have served one-fourth of their sentence and have a good conduct and behaviour.
- They should be above 21 years and less than 50 years of age.
- They should not be convicted for heinous crimes like dacoity, murder, rape, forgery etc. and shouldn’t have the case pending in the courts.
(These are the main conditions which should be followed and other conditions can vary according to prisons rule.)
Also, prisoners can pursue various courses through open universities like IGNOU at the cost of government expenses. To support this noble cause, Bangalore University has started programme to impart a formal education to prisoners through distant mode. They can enrol for different graduation and post-graduation courses through this distant course.
The capacity of prison differs from place to place. It can vary from 100 – 1000 prisoners according to the prison and conduct of the prisoners. Different places have different structures for open prisons like Assam, Kerala, and Himachal Pradesh have permanent barracks; Mysore prisons have pre-fabricated structure, and Andhra Pradesh and Maharashtra prisons provide dormitories with asbestos roofs. Some prisons provide employment in agriculture, some provide in industries and some provide in both.
The selection process for prisoners to get into open prison is based on the decision made by the selection committee. The superintendents of prisoners first make the lists of the eligible prisoners (on the above-mentioned conditions), then they sent the lists to the selection committee who made the selections for open prison.
Feasibility of Open Prisons
· Fort like Structures
· 24 hours surveillance
· 3-4 times roll call
· Staff required to manage prison, store house and kitchen
· Inhuman and overcrowding of jails
Operational Cost p.a. (Jaipur Central Jail)
· Open structure
· No surveillance or minimum
· Morning and Evening roll call
· Minimum or no staff required
· Village like setup
Annual Expenses p.a. (Sanganer Open Prison )
(The above data is taken from Times of India report from Dec 20, 2017)
From the above table, we can conclude that a Government has to spend more on Controlled jails than it has to spend on Open Prison. Cost of operating controlled jails is around 18 crores p.a. whereas the government has to spend 24 lakhs on operating open prisons which is far less than operating controlled prisons. Also, open prisons give chance to prisoners to once again connect with the society. They can go for a work, can meet with their families and can be in a constant touch with society. Recently, a report was prepared by researcher Smita Chakraburtty on an open prison in which she quoted that if the atmosphere of the prison is of high tension, the propensity to commit crime increases. She had interviewed 428 prisoners of 15 open prisons from Rajasthan.
Overcrowding of Jails – From 2016 onwards, the number of prisons in India have increased their capacity however the capacity of prison is not in accordance with the growth of number of prisoners according to the data given in NCRB. The capacity of prisons has increased from 3,80,876 in 2016 to 3,96,223 in 2018 (as of December 31), or by 4.03% during 2016-2018, according to report released by NCRB Prison Statistics India in 2018. During the same period, the number of prisoners lodged in these jails has increased from 4,33,003 to 4,66,084, or by 7.64%. As a result, the occupancy rate in prisons has grown from 113.7% to 117.6%. Uttar Pradesh has reported the highest occupancy rate (176.5%) followed by Sikkim (157.3%) and Delhi (154.3%).
The data also shows that the though capacity of prisons has increased the number of prisons has decreased by 5%, from 1,412 in 2016 to 1,339 in 2018. The 2018 count of prisons shows that there are 628 sub-jails, 404 district jails, 144 central jails, 77 open jails, 41 special jails, 24 women jails, and 19 borstal schools. The remaining two jails are in the category “other than the above”.
Data on Women prisoners
According to the data released so far, nearly 2,000 children are living in jails in India along with their imprisoned mothers. Out of 1,999 children (1,732 women prisoners), Uttar Pradesh accounted for one-fourth (509 children) while four more states accounted for another one-third. Together, jails in these five states — UP, along with Bihar, West Bengal, Jharkhand and Madhya Pradesh — had 1,201 children, or 60% of the total 1,999. While 1,732 women prisoners had children with them, the total number of women prisoners in India was 19,242. Among them, 3,243 were in the 24 women jails and 15,999 were in other jails. In women jails, the number of prisoners was below capacity (58% of a capacity of 5,593). In other jails, which have a combined capacity of 21,668 women inmates, the 15,999 inmates represented an occupancy rate of 73.8%.
Data on overcrowding of prisons
(Source: Data from NCRB)
Under-utilisation of Open Prisons – According to the data provided by National Crime Records Bureau (NCRB), there are only 77 Open Jails across the country at the end of 2018, present only in 17 states. Even in these 17 states, the occupancy rate of open prisons is 66.6%. thus, leading to under-utilisations of these prisons.
Male Prisoners are selected for open prisons – NCRB data also shows that only male prisoners are selected for open prisons. Only four states [Jharkhand, Kerala, Maharashtra and Rajasthan] are having female prisoners in Open Jails. Hence, the remaining 13 states which have facilities of open prisons are being utilised by men only. This in turn also leads to the violation of Article 14 of the constitution which talks about equality. This is also inconsistent with the provisions for Open Jails in the Model Prison Rules, 2016.
Justice Krishna Iyer had always advocated for the prisons reforms which can be seen through his judgements also. According to him:
“Crime is a pathological aberration that the criminal can ordinarily be redeemed that the state has to rehabilitates rather than avenge. The sub-culture that leads to anti-social behaviour has to be countered not by undue cruelty but by re-culturisation. Therefore, the focus of interest in penology is the individual and the goal is salvaging him for society. The infliction of harsh and savage punishment is thus a relic of past and regressive times.
A bench of Justice Madan B Lokur was informed that controlled jails are overcrowded by 150% of its capacity. The data also reveals about some particular jails which are highly overcrowded are – 8 in Assam, 21 in Kerala, 5 in Madhya Pradesh, 47 in Uttar Pradesh etc. the data was present in oct 2014. The following problem can be solved by building more new jails but generally jails are built within the city so that the convicts can be taken to jails easily. But acquiring the new land within city costs too much, then the proper staff is needed to maintain the jails which add to government expenditure. Also, there are less chances of the reformation of prisoners as they are kept in inhumane conditions. On the other hand, generally, open prisons are generally built outside the city, require a minimum staff or no staff. Most importantly it works on mutual trust and plays an important role in the process of the reformation of prisoners.
In 1996 also, Hon’ble Supreme Court in the case Rama Murthy v. State of Karnataka, advocated for the need of open prions. The Apex court had directed to establish “more and more open prisons”, starting with the District Headquarters of the country. The Court also took note of the managerial problems that will come with Open Jails. are not insurmountable in light of the greater good which these Jails can provide.
The National Human Rights Commission (NHRC) in a couple of its annual reports of 1994-95 and 2000-01 advocated for the need of open prisons and how they can be solution the overcrowding of jails. All India Committee on Jail Reforms in 1980 had recommended to establish Open Jails in each state and union territory.
How Rajasthan’s model Open Prisons work
In Rajasthan, prisoners go for a work in the morning and return by evening. The camp allows them to house their families. The eligibility criterion for open prison is that convict has been sentenced to five years and completed the one-third of the sentence
How Open Prisons help in reformation of prisoners
Open Prison works on the mutual trust. It involves trust and an appeal to the human side of the offender and gives them chance to develop the sense of social responsibility. Open prison improves the mental health of prisoners as they are not bound by any fort like structures and helps them to remain mentally and physically fit. Prisoners are allowed to work which helps them to earn their living and helps them to support their families if they are sole breadwinners of their families. They are also allowed to keep their families which helps them reform in a better way as they knew that law and society has given them second chance to improve and they should evolve themselves into a better human being. We all know that socialisation is an important part of human life and with open prison they remain in constant touch with the society which ultimately help them to grow into better human beings.
Supreme Court is also in favour of an open prison. Recently an advocate Gaurav Agrawal (also amicus curiae for the particular) filed a PIL seeking protection for the rights of prisoners on which the court said that government must adopt humane approach towards the prisoners and criminal system also aims for reformation and rehabilitation of criminals. It also instructed that all states should study the Rajasthan model of an open prison. IndiaSpend had also interviewed the prisoners who are part of Open Prisons. The prisoners in the interview told how their lives had reformed by being part of open prison system.
Therefore, open prison works as reformation for prisoners and gives them chance to transform themselves into better human beings. The aim of law should not only focus on deterrent theory but also on reformation as a society cannot become good by only deterrence. The convict realises what wrong he has committed and should be given a chance to rectify himself. So that they can contribute to society in a better-reformed individual. Although, prisoners of the serious crime should not be sent to open prisons as it is important to give a message to society that grave crimes will not be tolerated and they have to face serious consequences.
(The writer is a BA-LLB student at the Kirit P. Mehta School of Law at the NMIMS University Mumbai and currently interning with Citizens for Justice & Peace, Mumbai)
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