Aditya Saraswat

The Sanganer Open Prison at Jaipur.

The recent court directions with respect to decongesting prisons during the pandemic, necessitate revisiting Open Jails as a feasible alternative.

Introduction

In the last couple of months, various steps have been taken by the Central and State governments to decongest the overcrowded Central/District prisons in light of the ongoing COVID-19 pandemic. A number of prisoners, who were sentenced for seven years or less for non-heinous crimes were released on parole and interim bail after a suggestion of the Supreme Court in this regard. The COVID-19 pandemic has once again brought up the issue of highly over-crowded prisons in the country. It is high time now to discuss some meaningful reforms that can be implemented to deal with this problem. One such significant step can be to use the potential of Open Jails. These jails not only serve as a brilliant method to reform the selected prisoners but can also contribute towards unclogging the Central/District prisons in the country.

Open Jails: Concept and Advantages

In simple words, an Open Jail is like a campus for prisoners without bars and locks. The intention behind establishing these jails is to put into practice the modern ideology of reformation and rehabilitation of prisoners. Those prisoners, who have completed a major portion of their sentence with good conduct, are given an opportunity to spend the rest of their time in these Jails and live a near-normal life. An opportunity is also provided to the prisoners to undertake fruitful employment in day time. These prisoners, after spending a long time in closed prisons, are trusted to take their freedom very seriously and not indulge in any form of violence again. However, this shift to Open Jails is not irrevocable and prisoners can be sent back to closed prisons in case of any misconduct, though only a handful of such incidents have been reported.     

These Jails can be extremely helpful in reducing the burden on closed prisons. With Open Jails, the government can employ the jail population, which would have otherwise remained unproductive. The prisoners learn to shoulder responsibility and staying in that environment further helps them in regaining their dignity. Open Jails also reduce burden on the exchequer as they can be administered with very low cost as compared to closed prisons. The UN Standard Minimum Rules on the Treatment of Prisoners (Rule 89) also noted that Open Jails provide the perfect conditions for the rehabilitation of selected prisoners. 

Under-utilization of Open Jails

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 and these are present only in 17 states. Even in these 17 states, the occupancy rate is 66.6%. This situation persists even when the Central/District prisons in our country are highly overcrowded. As on 31st December 2018, the occupancy rate was 119% in Central Jails and 132.8% in District Jails. Thus, not only the Central/District Jails are heavily over-utilized but at the same time, Open Jails, which can serve as an effective alternative for housing harmless prisoners, are underutilized and highly inadequate in number.

No Uniform framework to govern Open Jails

A uniform framework to govern Open Jails is also lacking. The subject of “prisons….and other institutions of a like nature” in India forms part of the State List. Accordingly, the state governments are expected to come up with detailed rules and guidelines regarding the administration of Open Jails. However, in order to ensure some uniformity in these rules, the government came up with Model Prison Rules, 2016, in which an entire chapter has been devoted for Open Jails. However, these provisions are only illustrative in nature and therefore states continue to administer these jails in their own way. 

In absence of a uniform framework, the selection procedure of eligible inmates for Open Jails becomes quite ambiguous. Some strange provisions have been introduced by various states. In Rajasthan Prisoners Open Air Camp Rules, 1972, prisoners who are unmarried are not permitted to shift to these Jails. Introducing marriage as a pre-condition has no relation with the objective behind establishing these Jails. Under the Haryana Prisoners Open Air Camp Rules as well, a prisoner is not considered eligible to reside in Open Jails if he is not having any family. It is important to note that permitting prisoners to financially help their family is not the sole objective for these Jails. The crucial point to consider is the correctional potential of these institutions for the prisoners who have consistently shown discipline behind the closed prisons. Denying a prisoner this opportunity, just because he is not having any family, is in no way fulfilling this purpose. These provisions are good examples of how states are unable to understand the intention behind establishing these institutions. 

Another important issue is the biased attitudes of states in selecting only male prisoners for Open Jails. As of now, only four states [Jharkhand, Kerala, Maharashtra and Rajasthan] are having female prisoners in Open Jails. There are 13 states having the necessary facilities for these Jails but only male prisoners are residing in them. Even if safety of the female prisoners is the concern, then progressive steps can be taken to establish separate open prisons for women, like Women’s Open Prison in Kerala or Yerawada Open Jail for Women in Pune. But denying women the opportunity to shift to these jails is clearly against Article 14 of the Constitution as there is no reasonable justification which allows states to select only male prisoners. This whimsical arbitrariness on the part of various states is inconsistent with the provisions for Open Jails in the Model Prison Rules, 2016. This calls for bringing a uniform framework which is binding on all the states and union territories. The recommendation of the All India Committee on Jail Reforms, 1980-83 [Vol. I, Part III, Para 4.34.2] to bring the subject of prisons and allied institutions within the concurrent list, can be helpful for this purpose as that will allow Centre to legislate and come up with a uniform framework.

Unheard Voices

In the case of In re Inhuman Conditions in 1382 Prisons, Supreme Court directed in its order dated 12.12.2017 that Ministry of Home Affairs and the Director General of all states and Union territories must look at the feasibility of establishing open prisons. Another order was passed on 08.05.2018, where the Supreme Court discussed the issue of underutilization of Open Jails. All the State Governments & Union Territories were directed not just to utilize the existing capacity of these Jails but also to consider the feasibility of establishing Open Jails in as many locations as possible.

This was not the first time when Supreme Court promoted these institutions. In 1996 as well, in Rama Murthy v. State of Karnataka, Supreme Court directed to establish “more and more open prisons”, starting with the District Headquarters of the country. Court even noted that the managerial problems associated with the establishment of Open Jails are not insurmountable in light of the greater good which these Jails can provide. The importance of these jails to tackle overcrowding in closed prisons was also noted by National Human Rights Commission (NHRC) in a couple of its annual reports [1994-95 (Para 4.17), 2000-01 (Para 3.68)]. Back in 1980 as well, the All India Committee on Jail Reforms [Vol. I, Part VIII, Para 19.33.8] recommended to establish Open Jails in each state and union territory. 

Thus, significant recommendations/directions have been given by the NHRC, Jail Committees and Supreme Court from long time back. But still, the goal of having adequate number of open prisons in the country seems to be out of sight. Central and the State Governments need to actively work on the same in order to deal with the sorry state of Central/District prisons in the country.

Conclusion

The deplorable condition in closed prisons because of excessive over-crowding is not a new problem for our country. The gravity of the issue can be ascertained from the fact that Supreme Court has considered overcrowding in prisons as “violation of human rights”. The root of this problem lies in the uneven distribution of jail population. It is imperative to promote institutions like Open Jails which will not only assist in decongesting the Central and District prisons but will also give the harmless prisoners an amazing way to reform themselves. Perhaps a fair opportunity is required to be given to these Jails in order to bring some meaningful reforms to the prison system of our country. 

The author is a penultimate year law student at NLU Jodhpur.

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