The argument for expanding the open prison system in India - Hindustan Times
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The argument for expanding the open prison system in India

May 27, 2024 11:06 PM IST

What are open prisons, what is their role in the justice system and why is this institution important for furthering the goals of criminal justice in society?

Recently, the Supreme Court directed that no attempts shall be made to reduce the area of open prisons in the country. A bench of justice BR Gavai and justice Sandeep Mehta noted it has been informed that there is a proposal to reduce the area at Sanganer open-air camp in Jaipur. "We thus direct that there shall be no attempt of reduction in the area of open-air camps/institutions/prisons, wherever they are functioning," the bench reportedly said.

Prisoners at a jail in Jaipur in 2006. (HT File Photo) PREMIUM
Prisoners at a jail in Jaipur in 2006. (HT File Photo)

What are open prisons?

Open prisons are custodial institutions, where, unlike traditional prisons, there is lesser supervision and greater freedom of movement for the inmates. While the infrastructural and administrative definitions of open prisons may vary across Indian states, they are bound together by the principles of self-discipline for the inmates instead of control. Serving as a transitional phase between the closed environment of conventional prisons and the free world, open prisons are founded on the belief that a person cannot be prepared for freedom in conditions of captivity.

Over time, the objectives of the punishment of incarceration have expanded from primarily retribution to also looking at the reformation of the incarcerated person for broader social good. The journey of prison reforms has seen significant strides toward ensuring that punishment serves a broader societal purpose, rather than adhering to the individualistic concept of “an eye for an eye”.

“These open camps can be considered as useful 'missing links' of correctional process, and in fact, serve the purpose of 'halfway homes' or 'transit homes' between the closed institutionalized treatment and the free society," noted the Rajasthan Prison Department in a statement.

Inmates in open prisons can move out, earn a livelihood, meet family, learn skills, study, have community ties and then return to serving their sentence. It is not a regular institution for accommodating inmates; rather, it is an initiative to ensure prisoner’s reintegration into wider society after long years of incarceration.

Only select prisoners, primarily convicts, who have undergone a significant period in regular prisons and have shown potential for change and good behaviour, qualify for admission to an open prison. Utilising predetermined criteria, the objective is to evaluate which convicted individuals are appropriate for transition and then allocate them to a facility conducive to fostering their rehabilitation as they serve their sentence. The contours of the concept of open prisons are defined by meaningful reintegration, fostering responsibility and skill development. This approach enhances constructive inmate engagement and serves the ends of criminal justice effectively.

History of open prisons

The open prison in India was built in the Bombay Presidency in 1905 on the premise of using prisoners as cheap, or rather unpaid labour in public works such as repairing or building infrastructure. However, the idea of open prisons, over the years, has adapted and evolved in response to emerging contexts and shifting the focus of modern-day penology from deterrence to reformation.

The first open prison of Independent India was an annexe to the Model Prison in Lucknow, Uttar Pradesh, in 1949. This initiative led to the creation of a full-fledged open prison in Uttar Pradesh in 1953, where inmates were engaged in the construction of the Chandraprabha dam, which recently made headlines for receiving a sanction of Rs. 12.58 crore for repairs.

The shift in penology post-independence was significantly influenced by the Constitutional Courts, which, through their judgements in various cases, have repeatedly addressed inhumane prison conditions that have shaken the judicial conscience. In 1977, the Supreme Court directed that work assigned to prisoners must be congenial and that wages must be paid, restoring the human dignity that had been stripped away by unpaid labour. This was followed by the concerted efforts of several High Courts to declare unpaid work by prison inmates as unconstitutional.

Courts in fact urged states to have a reasonable minimum wage and meet the objective of reform and rehabilitation. With a rights-based emphasis from the judiciary and the efforts of prison reformists, open prisons have gained traction as a reformative approach to reintegrating hardened criminals into mainstream life.

Open prison in every district: Supreme Court in 2017

By 1982, 14 states had functioning open prisons. However, the progress since displays the lack of initiative by state authorities, with only 17 states having such prisons in 2022. The slow pace is despite a 2017 directive by the SC mandating the establishment of open prisons in each district across the country. Rajasthan leads the way with 41 open prisons, followed by Maharashtra with 19, Madhya Pradesh with 7, and Gujarat and West Bengal with 4 each. States like Kerala and Tamil Nadu have established three open jails each. Meanwhile, 11 states and not one Union Territory, do not have any open prisons, falling far from compliance.

The problem lies not only in the lack of open prisons but also in the underutilization of existing infrastructure. Prisons and prisoners are mentioned in Entry No. 4 of List II (State List) of the 7th Schedule of the Constitution of India, making them a State subject. This has led to both desired and undesired diversity in prison policies across the country. One consequence of prisons being a State subject is that several States and Union Territories have yet to establish objective rules or guidelines for the administration of open prisons, eligibility of prisoners, remission, and wages.

Despite having a total capacity of 6,000, open prisons housed only 2,178 prisoners in 2021, resulting in an occupancy rate of 36%. This rate commendably doubled to 74% in 2022. The sudden surge in the national occupancy rate of open prisons was primarily driven by two states: Maharashtra and West Bengal. Maharashtra increased its occupancy rate in open prisons from 9% in 2021 to 107% in 2022, while West Bengal increased from 10% in 2021 to 54% in 2022. However, this still contrasts sharply with the acute problem of overcrowding in regular prisons, where occupancy rates can reach as high as 300-400% While states have the opportunity to transition more inmates to open prison facilities, the lack of will and effort by state authorities, continues to subject them to overcrowded prisons.

Conclusion

India's penal system stands at a crossroads: The choice is between continuing with the dated, punitive and incapacitating approach or embracing a more humane, rehabilitative model. While more people are being incarcerated each year, current policies and lack of administrative will are failing to direct incarcerated persons towards rebuilding their lives. Instead, they continue to endure inhumane prison conditions, facing the irreversible consequences of incarceration, which keep them far from rehabilitation

In 1835, Macaulay, who drafted the now-repealed Indian Penal Code, condemned the prison conditions in India as “shocking to humanity.” Nearly two centuries later, the Supreme Court is still addressing the issue of inhuman conditions in 1382 prisons. It points towards the long-standing problem in India’s correctional system ensnared in a cycle of neglect towards prisoners. Despite a sustained series of judicial pronouncements, comprehensive expert reports, and legislative interventions, the promise of rehabilitation and humane treatment for prisoners remains largely unfulfilled.

As India endeavours to address these concerns, the SC’s directive to preserve open prison space has never been more urgent. The question of the establishment and functioning of open prisons is a small piece in the ongoing quest for prison reforms. The idea of punishment and whether rehabilitation is the goal is often confronted by practices that emphasize retribution and incapacitation. Years of state apathy towards individuals convicted of crimes or imprisoned solely based on judicial oversight cannot, by itself, lead to the ideal functioning of open prisons. To make second chances a reality in the criminal justice system, a synergy of policy reforms and proactive administrative measures must emanate from the commitments in our shared sense of humanity, before anything else.

Shrutika Pandey is a lawyer and researcher specialising in access to justice. She engages in developing strategies to advance the rights of undertrial prisoners through legal representation, research, and advocacy. The views expressed are personal

Siddharth Lamba is a lawyer and researcher specializing in policy advocacy on prison reforms, with a focus on legal aid, addressing unnecessary detention, and studying prison monitoring systems.

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