The criminal justice system in India works on the strength of four pillars namely Police, Courts, Prisons, and Legal aid. Also called as correctional centres, prisons are the institutions which mainly focus on the behavioural improvement and rehabilitation of the prisoners.
“Every prisoner is a person and personhood holds the human potential which, if unfolded, makes a robber a Valmiki and a sinner a saint.”[1]
~ V.R. Krishna Iyer J.
Sanganer Open prison in Rajasthan is lauded for being one of the best open-air jails in India. Recently, it was in the news again for going one step ahead in its initiatives to humanize the lives of its prisoners. The prison authorities of Sanganer Open prison in association with an NGO named PAAR (Prison Aid and Action Research) have created pages on social media in the name @openprisonvoices to bring out stories of such prisoners. They are trying hard to enhance their lives.[2] Positive likes and comments from the public make a lot of difference in their lives as it gives a chance for them to recount their small accomplishments. The founder of NGO, Smita Chakraburtti, believes that “you can cage a man and break him, but you cannot reform him.” She says there is a need to break the taboos around criminals and spread awareness about the open prison system.[3] There are many such stories where prisoners have reformed themselves and successfully reintegrated into society with the assistance provided by prison authorities.
The page has thus offered a reinforced methodology to examine the system of open prison systems and their efforts in shaping the life of prisoners after release.
The criminal justice system in India works on the strength of four pillars namely Police, Courts, Prisons, and Legal aid. Also called as correctional centres, prisons are the institutions which mainly focus on the behavioural improvement and rehabilitation of the prisoners. Though up till the 19th century, prisons in India adopted a retributive approach, they slowly shifted towards the reformative theory of punishment with substantive developments in the field of penology. The main purpose of imprisonment earlier was to extract the revenge of the society from the culprit and to deter others from the commission of the crime. Prisons offered the segregation of law-breakers for social protection and the reformation of the culprit.[4] However, the definition of reformation had a completely different connotation then. Confining prisoners in a dark space with harsh treatment was considered as the only way to reform them. Today, the method of treatment of a prisoner has remarkably changed and has been much humanized.
Modern idea of reformation
As a result of growth in the scientific study of individual, his social relationships and analysis of the criminal behaviour by the psychologists, the modern penologists consider reformative theory as the best way to handle crime.[5] The reformative theory of punishment insists on reformation of offenders through individualisation. The theory works on a strict notion that even if an offender commits a crime, he does not cease to be a human being. Therefore, an effort must be made to reform the person during the period of his/her incarceration.
According to Kenyon Scudder,
‘there can be no regeneration except in freedom. Rehabilitation must come from within the individual and not through coercion.‘[6]
Hans Gross and Hugo Munsterberg in their much-referred works on the psychology of a person in criminal jurisprudence say that any procedure of solitary confinement or vindictive discipline will invariably result not in reformation but in further deterioration of an already imperfectly developed personality.[7] We should be greatly concerned whether they come out soured and embittered against the society for having placed them there or full of hope and new courage for the future because we have afforded them ample opportunity to improve their condition during incarceration.[8]
It was realized that imprisonment may only be appropriate for a certain category of offenders, as imprisonment had a drastic effect on some offenders who instead of becoming useful citizens become tough and frustrated criminals with rather enhanced competence and will to commit crimes. Thus, open and semi-open prisons, parole, probation, etc., have proved far more useful for such offenders. [9] Justice V.R. Krishna Iyer, who has delivered incredible judgments in the human rights jurisprudence, once said:
“the cultural roots of India with ‘Valmiki’, the Greatest Poet with a history of robbery past and such instances of conversion from criminality to nobility fully corroborate with the correctional philosophy advocated by radical penologists. Every saint has a past and every sinner a future. The technology of rehabilitation is the divinity already in man.“
The main or dominant purpose of the punishment, if not the sole purpose is reforming the criminal and redirecting him into society as an honest citizen.[10] Therefore, modified prison conditions and practices are needed as preparation for release, during transitional periods of parole or initial reintegration to ensure continued successful adjustment.[11]
Open Prison System
An open prison system is an open-air institution where inmates are kept in a contrasting set-up having near-minimal restrictions compared to a closed prison. The prisoners do not have to stay behind the bars locked up in a gloomy room. They are allowed to move freely within certain limits of the city and get back to the prison before a definite time for their roll-call. It allows the prisoners to take up work in any field of their interest and earn wages during the process. In a few cases, prisoners are also allowed to live with their families in the open prison. These open-air jails provide vocational training and recreation facilities for its inmates. The system aims at providing prisoners with a suitable environment to reform themselves into better individuals. It makes reintegration of a prisoner into the society less onerous. The open prison system is considered more relevant in the context of the modern idea of reformation.
Inception of Open Prisons in India
Though the concept of open prisons was discussed in First All India Jail Committee in 1836 where it focussed on prison labour, substantial development took place post-independence when Sir Walter Reckless, the U.N. Technical Expert visited India in 1952. He worked towards modernizing the Indian prison system. An All India Jail Committee was set up in 1956-57 which made noteworthy recommendations for prison reforms. One of these recommendations was the establishment of open-air jails with emphasis on self-discipline and self-help.
India was also a participant in the First United Nations Congress on Prevention of Crime and Treatment of Offenders held in Geneva in 1955 where the concept of open prisons was discussed. The Recommendations of Congress defined open prisons as,
“An open institution is characterized by the absence of material and physical precautions against escape (walls, locks, bars and armed or other special security guards), and by a system based on self-discipline and inmate’s sense of responsibilities towards the group in which he lives.“[12]
Recommendation no. VI provided for the necessary conditions to be fulfilled in order to have a successful open prison. One of the major conditions which seem to be gaining more importance is the necessity to obtain the effective co-operation of the public in general and of the surrounding community in particular for the operation of such an institution. In this context, it recommended that local and national media of information would play a valuable part. The Sanganer Open prison by utilizing social media having a wider reach is trying to negate the stigma attached to the name prisoner. Apart from it, the prison authorities must also make sure the prisoners retain the job after release. In most cases, during the time in an open prison, prisoners work in the agricultural land of the State itself or in any construction sites of government projects leaving them nowhere when they are released into the society. In such cases, the prison officials should take steps to ensure they are rehabilitated in the society by furnishing such prisoners with certificates of experience and good-conduct so that the potential employer has sufficient proof of the individual’s skills and demeanour.
In the report of the Indian Jail Committee 1919-20, for the first time ‘reformation and rehabilitation’ of offenders were identified as the objectives of the prison administration.[13] The major objective of the system is the social rehabilitation of the inmates by employing them with work which will prepare them for future responsibilities and employment after their release.
India has 77 open prisons[14] with the majority of them concentrated in Rajasthan (29) and Maharashtra (13). The first among them was established in 1953 in Uttar Pradesh where prisoners were requisitioned to construct a dam over the river Chandraprabha, near Varanasi. Out of 28 States and 9 Union Territories in India, only 17 states have established open jails even after decades of experimenting with the system of open institutions. There is a need to replace traditional prisons with open prisons, with each State having at least one open-air prison, to begin with.
Basis of selection
As prison administration comes under the State list, each State has its own procedure and norms set for the selection of the inmates to be transferred to open prisons. The general idea derived from all of them is that prisoners who have served a substantial part of their sentence having observed for good conduct excluding certain offenders of crimes like dacoity, theft, rape, terrorism, etc., are eligible for admission into open prisons. The Inspector-General based on the recommendation of a selection committee approves the transfer of such prisoners to open prisons. However, surprisingly there are few categories of prisoners who are considered ineligible in many States such as women prisoners, unmarried prisoners, convicts who do not have any residence in that particular state, etc. There is no justifiable reason given by any State for such an exclusion.
The recommendations of the first UN Congress on Prevention of Crime and Treatment of Offenders highlighted the importance of selection based on medico-psychological examination & social investigation. One cannot always predict the ability of a convict to reform based on the type of offence he/she has committed. Basing the selection on medico-psychological examination would give an unbiased report which may result in large number of convicts who are presently restricted from being shifted to open prisons for reformation.
Even if certain individuals aren’t found ready for open prisons, they should be allowed to work in semi-open prisons and kept them under observation.[15] Semi-open prisons are prisons where the inmates are allowed to move and work without restrictions within the walls of the prison, unlike the open jail prisoners who are allowed to move within the city limits. It is high time the prison administration re-checks the eligibility criteria of the inmates to be admitted to open-air prisons.
Why aren’t female inmates given equal opportunity to be shifted to open prisons?
In India, women prisoners were allowed to be transferred to open prisons only as recently as 2010. Yerawada open prison in Pune is the first prison set up for women whereas such jails were already present for men since the 1950s. In many states, they are still considered ineligible for shifting to open-air prisons. According to the NCRB report, out of 63 open prisons that were present in 2015, only 4 were for women. The many States like Maharashtra, Tamil Nadu, etc., in their Prison Manuals or through separate legislation have expressly excluded women prisoners and term them ineligible to be transferred to open prisons. This prohibition shows the kind of discrimination shown towards women within the prison for availing the chance of rehabilitation. The basis of giving an opportunity to move to open prison is good to conduct. It is a motivation for prisoners to perform better in order to get rid of the conditions of closed prison. It is unthinkable why female inmates would be deprived of such an opportunity. Such arbitrary rules tend to simply harden the women inmates making them more rebellious towards the society for treating them unequally.
As per 2018 reports, females constitute only 4.1% of the prison population. Less attention to women prisoners is probably due to the comparatively lesser female population in the prisons. However, a small number, lack of proper administrative, etc., cannot be a valid defence for such discrimination. Such discrimination is not just faced in India but in many places around the world. It was recognized in a report to the Congress of the US by the Comptroller General way back in 1980 that women in correctional institutions are not provided comparable services, educational programs, or facilities as men prisoners. It was observed that a wider range of men’s prison facilities and their proximity to communities provided male prisoners greater opportunities to meet their needs for the classroom as well as on-the-job training.[16] The Report also highlighted a case where the court while rejecting the defendant’s argument that the administrative requirements of maintaining separate facilities and the cost of providing duplicate programs were too expensive, held that the county jail system could not provide special programs and facilities for men only.[17]
Supreme Court of India in Sunil Batra v Delhi Administration[18] stated,
“Are prisoners persons? Yes, of course. To answer in the negative is to convict the nation and the Constitution of dehumanisation and to repudiate the world legal order, which now recognises rights of prisoners in the International Covenant on Prisoners’ Rights to which our country has signed assent”.
Women prisoners also deserve an equal chance for rehabilitation like their male counterparts. Supreme Court has recognized the right of every prisoner to live a life with dignity. By not giving women inmates a chance to reformation and rehabilitation, the States are acting in violation of their right to equality, life, and liberty guaranteed under the Constitution.
Why should open prisons remain shut for under-trial prisoners?
Many suggest that a way to reduce overcrowding in jails is by allowing undertrial prisoners to be shifted to open-air prisons. At this juncture, it is noteworthy to recall the reason why an accused is remanded during the trial. An accused is kept in judicial custody if it is likely that he or she could commit a serious crime, interfere with the investigation, or fail to turn up in court. Letting them stay in open -prisons defeats the very purpose of judicial remand. Of course, there is overcrowding of prisons due to a large number of under-trial prisoners remaining in prisons for an indefinite amount of time, but that problem can only be addressed by having speedy disposal of cases and not shifting them to open-air prisons.
Smita Chakraburtty, an independent researcher who works on prison reforms argues that undertrials would not escape the open prisons in the same way as convicts are not escaping them. She also says that the undertrials must be sent to open-air prisons as there will be a sense of relief and justice among them that even if bail is not granted, at least liberty would not remain throttled. This argument ignores the basic difference in the purpose of why both the categories of prisoners are incarcerated. The purpose of putting an undertrial prisoner in jail is not for punishment but solely for the purpose of restricting them from destroying any material evidence against them. Whereas, the purpose of putting convicts in jails is as a means of punishment and reformation. They cannot be compared in that aspect. Open prisons will only be beneficial as a rehabilitative measure. Putting undertrials in open jails increases the risk of harming the case of the victim under trial. It would be equal to releasing them on bail. The only way to ensure the liberty of undertrial prisoners is not harmed is to work towards speedy disposal of cases. However, they should be allowed to stay in semi-open prisons where they will be subjected to lesser restrictions while remaining within the boundaries of prison.
A successful experiment and the need to scale up
In addition to advantages such as the requirement of lesser costs and manpower to run the open prisons, one of the reasons why open prison system is considered successful is its ability to bring a remarkable change in the attitude and lives of prisoners. The thought of freedom and independence while shifting to an open prison gives them a reason to change and transform themselves. It brings a sense of responsibility and independence within the prisoner. Giving them an opportunity to earn while undergoing their sentence provides them with a source to support their estranged families. It also relieves them with savings to fall back upon on release. Even after giving utmost freedom to the prisoners, the system is successful in maintaining the number of escapees to a bare minimum. While there are still a few escapes in a year, Ahmed, Inspector General of Hyderabad says the problem lay somewhere else. He says, earlier an advisory board used to recommend the release of prisoners every year if their behaviour was found to be good. Convicts could nurture the hope of an early release after completing some portion of their sentence. Currently, there is no system of review which used to exist in the 1980s. Even if there is a standing committee with senior officials of the prison and home department to approve releases, this practice exists merely on paper. With prisoners feeling literally condemned for life even in open jails, the thought of escape is crossing their minds.[19] Therefore, if the reasons for such escapes are traced, the few escapes that are happening could also be contained. All rules and practices which motivate a prisoner to reform should be implemented strictly.
Only 2,250 convicted inmates were rehabilitated during 2018 out of a total of 1,92,409 convicts released.[20] There is a need to scale up the number of open prisons in all the States proportionate to the prison population. Every action taken by the prisons must be in view of the reformation and rehabilitation of its inmates. It is the individual and not the offence that must be given priority. If a person shows signs of change and his attitude towards his life changes, then every such convict is suitable to be in an open prison. Unequal and arbitrary practices towards women in the prisons must be curbed. It is essential to set up sufficient open prisons for female inmates while providing them with adequate opportunities for growth and rehabilitation in society.
The success of open-air prisons in India so far should be an impetus driving the States to scale up the number of open prisons. Setting up such open institutions with prime focus on the reformation and rehabilitation of prisoners will go a long way in shaping up the jurisprudence of prison administration in India.
[1] Ramesh Kaushik vs B. L. Vig, Superintendent And Anr, 1981 AIR 1767
[2] Himanshi Dhawan, When Prisoners get Instagram likes, TOI, June 22, 2020, Source Link.
[3] Id.
[4] Harry Elmer Barnes, Some Leading Phases of the Evolution of Modern Penology, Political Science Quarterly, Vol. 37, No. 2 (Jun. 1922), pp. 251-280.
[5] Id.
[6] Kenyon J. Scudder, Prisoners are People, Garden City, N.Y. Doubleday and Company, 1952), p.28.
[7] Supra 4.
[8] Kenyon J. Scudder, The Annals of the American Academy of Political and Social Science, Vol. 293, Prisons in Transformation (May 1954), p. 79.
[9] Anupriya Agarwal, Open Prison System: Origin and Relevance, Source Link.
[10] In Re: Prison Reforms Enhancement vs Unknown, AIR 1983 Ker 261.
[11] Craig Haney, From Prison to Home: The Effect of Incarceration and Reentry on Children, Families, and Communities, The Psychological Impact of Incarceration: Implications for Post-Prison Adjustment, December 2001.
[12] Open Institutions, Recommendations adopted by Section II, First United Nations Congress on Prevention of Crime and Treatment of Offenders, Geneva.
[13] Zubair Ahmed, Jail reforms in India: A study of Indian jail reform committees, IJMER, Vol 1, Issue 3, May 2016.
[14] Prison Statistics India- 2018, NCRB Report.
[15] Mulla Committee Report, 1983.
[16] Comptroller General of US, Women In Prison: Inequitable Treatment Requires Action, Ch. II (1980).
[17] Molar vs. Gates (1979).
[18] 1980 AIR 1579.
[19]Sushil Rao, Air of suspicion at open-air prison, TOI, Nov. 23, 2008, Source Link.
[20] Prison Statistics India- 2018, NCRB Report.
