The concept of Open Prison system in India

[Volume 2; Issue 11]

Author- Sharika Sristi, LL.B, Bharati Vidyapeeth University, Pune .

Abstract

Unlike Lord Macauley, Mahatma Gandhi believed in humane treatment to prisoners rather than a deterrent one. Right to life and personal liberty is guaranteed to every person under the constitution of India as a fundamental right. The international documents have also affirmed the principles of personal liberty of a person and it goes on to state that such liberty is provided not only to a common man but also to a prisoner[ref] The United Nations Standard Minimum Rules for Treatment of Prisoners (The Nelson Mandela Rules), adopted by the General Assembly in December 2015. [/ref]. The Nelson Mandela Rules envisages certain rights of the prisoners such as right of employment and right to contact with the outside world. The central theme of this Article is to discuss the concept of open prison system in India, its origin and relevance. There is a need to further reform the prison system in India, increase the number of open prisons and bring out a common and concrete set of rules through a central enactment in this respect.

The purpose of the criminal justice system is both to rehabilitate and to punish. If we can rehabilitate somebody, that’s a huge, huge win. -Blake Farenthold.

1. Introduction

“Prison” is defined under section 3 of the Prisons Act, 1894. Prison in its general sense, is a place where a person who is convicted of an offence and have been awarded punishment of imprisonment for a specific time period, is kept. Earlier, the concept of prison was confined to the enclosed walls wherein the convicted person was kept with an intention to keep him away from the social life and luxuries and repent for the wrong done by him. But later on, after quite a long time, the society and the authorities in power were able to understand that even the prisoners should enjoy the dignified life. Earlier, the society and government towards the prisoners were little insensitive towards the human rights of the prisoners. However, the fact was later on realised that a society is deemed to be a civilised one and a well organised one in accordance with the law only when the individuals are given due recognition to their fundamental rights, no matter if he is a normal citizen or a person convicted of an offence and confined behind the prison bars.

Open prison, or an open jail, in this regard, has been set up with minimum security measures against escape and with rehabilitative and reformative approach rather than a deterrent one. As compared to a controlled jail, the rules of an open prison are less stringent.

Before the completion of the sentence, it is desirable that the necessary steps be taken to ensure for the prisoner a gradual return to life in society. This aim may be achieved, depending on the case, by a pre-release regime organized in the same prison or in another appropriate institution, or by release on trial under some kind of supervision which must not be entrusted to the police but should be combined with effective social aid[ref] Rule 87, The United Nations Standard Minimum Rules for the Treatment of Prisoners, 2015 (The Nelson Mandela Rules). [/ref]. The establishment of open prisons was of great significance in this regard and in light of the fact that as a result of imprisonment, the family affairs of the convict/offender is largely affected. Imprisonment results in a major suffering not only to the convict/offender but also to the family members who is dependent on the income of the convict/offender.

In a writ petition filed in the Apex Court, the learned Amicus suggested the hon’ble Court that over-crowding in jail should be reduced and that might help in reducing the possibility of suicide by the prisoners. For the same purpose, the concept of open jails should be encouraged. The Supreme Court opined that the suggestion given by the learned Amicus of encouraging the establishment of ‘open jails’ or ‘open prisons’ is worth considering[ref] In Re: Inhuman Conditions in 1382 Prisons (15.09.2017- SC) : MANU/SC/2017. [/ref].

2. Backdrop

In 1952, the Hague conference recommended the organisation of open air camps. It stipulated that those prisoners, who have 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[ref] Section 24, Implementation of the Recommendations of All-India Committee on Jail Reforms (1980-83):Volume 1, Prepared by: Bureau of Police Research & Development, Ministry of Home Affairs, New Delhi, 2003. [/ref].

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 17 December 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 for 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[ref] All India Committee on Jail Reforms, 1983. [/ref]. The Committee states regarding open institutions under Chapter XIX of the committee report.

Coming to the role of judiciary, the landmark case of Sunil Batra v. Delhi Administration[ref] AIR 1978 SC 1548 [/ref] set the constitutional dimensions of a person behind the bars. The cases like “Charles Shobhraj” and “Sheela Barse[ref] Sheela Barse v. State of Maharashtra AIR 1983 SC 378 [/ref]” further sculpted the path to constitutional rights of a prisoner, more specifically, Article 21 of the Constitution. Going with Article 21 of the Constitution, the concept of open air prisons is worth a discussion. Ramamurthy v. State of Karnataka[ref] MANU/SC/04021997 [/ref] is one of the earliest cases that put forward the concern of open air prisons.

3. Relevance of Laws and Legal Principles

Article 21 of the constitution of India:

As such, there is no specific right guaranteed under any article of the Constitution of India for prisoners. But indeed, the essence of human rights of prisoners is present under article 21 of the Constitution of India. According to article 21, “no person shall be deprived of his life or personal liberty except according to the procedure established by law.” And, through various judgements it quite clear today that we cannot exclude prisoners under the meaning of the word ‘person’ under this article. So they cannot be deprived of their basic rights enshrined under the article. Hence, if a prisoner satisfies certain conditions as laid down under the relevant laws and rules, he rightfully be sent to open prisons. Therefore, the judiciary, with the passage of time and through various judgements have widened the scope of Article 21 which stretches its arms while reaching the rights of a prisoner and giving due recognition to the fact that they also have a right to live with dignity, right of livelihood, right of humane treatment and healthy environment and right to enjoy the personal liberty. Going with this broader meaning of Article 21 of the constitution of India, the establishment of open prisons could very well be justified.

The Human Rights perspective:

Conventionally, human rights have been divided into broad categories: civil and political or ‘first generation rights’ including the right to life, the right against arbitrary arrest and detention, and right to freedom, and, social, economic and cultural rights or ‘second generation rights’ such as the right to health and right to social security[ref] 10 Judgements that Changed India- by Zia Mody, Penguin Random House India Pvt. Ltd., page 77 para 1. [/ref]. The rights in the nature of first generation rights were considered in the earlier years after the formation of the constitution. But with the passage of time the second generation rights were being given due importance and started being considered as a part of fundamental rights rather than being taken in the nature of directive principle. India, being a signatory to International Covenant on Economic, Social and Cultural Rights[ref] Adapted by the General Assembly on 16^th December 1966 and entered into force on 3^rd January, 1976. [/ref] cannot deny the obligation to establish the open prisons within the country, knowing the fact that most of the other signatory countries have successfully done that. From the perspective of Human Rights jurisprudence, the observation of such a concept is significant.

All human beings, whatever their cultural or historical background, suffer when they are intimidated, imprisoned and tortured… We must, therefore, insist on a global consensus, not only on the need to respect human rights worldwide, but also on the definition of these rights… for it is the inherent nature of all human beings to yearn for freedom, equality and dignity, and they have an equal right to achieve that.- 14^th Dalai Lama.

The Principles of natural justice and jurisprudential aspects:

The rights in question are also rooted in ancient thought and in the philosophical concept of ‘natural law’ and ‘natural rights’. Plato (427-348 B.C.) was one of the earliest writers to advocate a universal standard of ethical conduct. The Roman jurist Ulpian stated that according to the law of nature, all men are equal, and by the same law all are born free[ref] International Law and Human Rights by Dr. H.O. Agarwal, Central Law Publications, Third edition- 2012, Page 373 para 1. [/ref]. The proximate object of jurisprudence is to secure liberty to the individual and its ultimate object is the same as that of ethics which is the attainment of human perfection. Liberty is an essential prerequisite to the perfection of human personality[ref] Jurisprudence and Legal Theory by V.D. Mahajan, Eastern Book Company, Fifth edition-2016, Page 510 para 3. [/ref]. Following the principles of natural justice and philosophical school of jurisprudence it can be construed that though a person convicted of an offence and imprisoned thereof deserved such imprisonment, however in light of natural justice such person must be given a chance to reform himself if there is a scope for the same.

4. The Concept and Working of Open Prison in India

Among other things, the open institution is based on the already recognised fact that not all offenders need to be sent to prisons[ref] Manual- Lopez Rey, The First UN Congress on Prevention of Crime and Treatment of Offenders, Volume 47, Criminal Law, Criminology & Police Sci. 526 (1956-57), Page-533. [/ref]. The UN Congress on the Prevention of Crime and the Treatment of Offenders at Geneva, in 1955, described open prison in the following words: “An open prison is characterised by the absence of material or physical precautions against escape (walls, locks, bars, armed or speared security guards) and by a system based on self-discipline and the inmates sense of responsibility towards the group in which he lives[ref] Quoted in: I.C. Vatsa “ Open Peno Correctional Services” P-42. [/ref].

The idea is to help a prisoner to re-socialize with the outside world and rehabilitate and reform himself so as to be ready to absorb the environment of outside world once his term of imprisonment is over. However, a prisoner who has been sentenced to life imprisonment could also be sent to open prison depending upon the fulfilment of certain conditions or rules. The open jails in India involve the activities such as farming and animal husbandry.

The prisoners who have completed a substantial amount of their punishment in closed prison and who have shown a good behaviour throughout that duration are eligible to be sent to open prisons. Prisoners with good behaviour satisfying certain norms prescribed in the prison rules are admitted in open prisons. Minimum security is kept in such prisons and prisoners are engaged in agricultural activities[ref] NCRB report 2015, under Chapter 1: Prison Institutions. [/ref].

Advantages:

Reduction of over-crowding in closed prisons.
Inmates are allowed to go out and meet their family members.
Better environment of work.

Limitations:

With better conditions of living and work environment, prisoners may find the jail more comfortable than the outside world and be reluctant to leave the jail even after the completion of tenure of punishment.
Although the concept of open prison is different from the closed prison in its structure and objective, there is no Central Statute enacted for the purpose of open prisons till date.

Statistics

Only 17 states have reported about the functioning of open jails in their jurisdiction. Amongst these states, Rajasthan has reported the highest number of 29 open jails followed by Maharashtra(13), Kerala & Tamil Nadu (3 each) and Gujarat & West Bengal(2 jails each). The remaining 11 states- Andhra Pradesh, Assam, Bihar, Himachal Pradesh, Jharkhand, Karnataka, Madhya Pradesh, Odisha, Punjab, Telangana and Uttarakhand Have one open jail each. The highest capacity of inmates in open jails was reported in Maharashtra (1,522) followed by Rajasthan (1,325)[ref] NCRB report on Prison statistics India- 2015, Table 2.7. [/ref] .

5. Critical Appreciation

The Prison rules are a subject of state. As such, the rules vary from state to state and there are no uniform rules for all the prisoners. As a consequence, there might be a possibility of arbitrary provisions laid down by different state legislatures. Selection of candidates to be sent to open prisons is done by different state committees set up under the relevant State Prison Rules. This could swipe away deserving convicts. Also, there is no good justification for why open prisons are not set up for women and under trials. Adding more, the capacity of open prisons regarding the maximum number of inmates remained underutilized[ref] As per the data on open jails in the NCRB report on Prison Statistics India- 2015, Table 2.7. [/ref].

The idea of taking correctional measures for reforming a prisoner is appreciated, however the basic facts remains that a prisoner is a criminal in his very nature and there is no assurance as to whether he could actually be reformed and brought back to a decent attitude from a notorious one after the correctional efforts made on him by the prison administration.

6. Conclusion

Despite the minimum security in open prison, it is an appreciable fact that not a single instance of prison escape has been recorded till date. Therefore, it can be said that the concept of open prison system is successful in attaining its basic objective. Despite few criticisms, the reformatory role of open prison cannot be overlooked. It has brought a positive change in the prison system. However, not all the States in India have open prisons till today. Also, the Central Government must ponder upon forming a Central Statute for better administration in the jail premises and precision and uniformity in rules relating to open prisons, as recommended by the Mulla Committee.