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Understanding Open in

PARIKSHIT GOYAL KAMESH VEDULA

Parikshit Goyal ([email protected]) and Kamesh Vedula ([email protected]) are practicing advocates at the High Court. Vol. 56, Issue No. 4, 23 Jan, 2021

The reformative theory of postulates removing the dangerous degeneracy in a criminal and afford them a chance to make a fresh start and lead an honest life. This ensures fundamental human dignity, a most essential constitutional and human right. The current penitentiary structure’s primary focus on punitive and retributive forms of is ill-suited in safeguarding human dignity. The present jail administration in archaic, opaque and rife with abuses at systemic level. There is an urgent imperative for various reforms. An understanding is sought to be developed of the open prisons as a peno-correctional institution and their superiority over the more conventional forms of incarceration in ensuring both, the societal objective of penal sentencing and the human rights objective of successful reintegration of the upon their release.

Prisons, as penal and correctional institutions, have existed in India and abroad since times immemorial. Prisons confine criminals, convicts and undertrials. The primary purpose of prisons is to isolate or alienate such people from the society. They are jailed for a certain period but the purpose of reformation and rehabilitation is sometimes defeated due to the prison environment and the treatment meted out to prisoners. Prisons like Tower of London, Alcatraz, and Bastille have been seen as symbols of never-ending confinement and misery. ISSN (Online) - 2349-8846

Dark and dingy cells, poor food, physical and mental torture, inhuman behaviour of jail staff, company of hardcore criminals, drugs, corruption, isolation and long periods of confinement hamper the adjustment of prisoners in civil society upon release.

In India also, the picture is no different. An inspection of ’s 58 prisons paints a miserable picture of living conditions in the prisons. Overcrowding, understaffing, prison violence, poor medical facilities and other amenities, incarceration of undertrials for long periods, forced hard labour on undertrials, abuse of discretionary powers by prison officials, poor access to legal aid and rampant sexual abuse of inmates are only some of the major issues highlighted in the Report (Chakraburtty 2015)1.

In this light, various sociologists, thinkers, jurists and lawmakers have been advocating various reforms in the prison system all across the world. It is now widely accepted that punishment alone fails to reform the wrong doer. It must be accompanied by some methods to motivate and mould the conduct from bad to good and from wrong to right. It must develop the humane faculties and sensitise them to live and let live. After-care services must become an integral part of the penal programme. The role of prisons has thus changed over the years and they are no longer regarded as mere custodial institutions. Now the emphasis has shifted from confinement to training; restriction to re-education and; punishment to reform and rehabilitation. Retributive theory of justice is slowly paving way for the reformative theory.

The administration and management of the modern prison system in India is governed by the Prisons Act of 1894, which has its origins in the recommendations of the “Prison Discipline Committee” appointed in 1836 by Lord Macaulay, followed by constitution of four jail commissions to review the system from time to time. The law smacks of colonial prejudices and focuses on rigorous custodial treatment of prisoners while ignoring reformatory measures such as education, skill development, etc.

After independence, there has always been the larger question of how far our current penitentiary structure is furthering the objectives of the prison administration of reformation and rehabilitation of the offenders into the society as responsible citizens. With the noble idea of ensuring human rights and dignity of prisoners and their reformation and rehabilitation, the All India Jail Manual Committee (1957–59) recommended, inter-alia, setting up of open prison institutions (1960: 96–99).

The need for having open penal and correctional institutions was recognised and extensively discussed in the first United Nation Congress on the Prevention of and the Treatment of Offenders held in Geneva in 1955 (UNODC 2010).

Through this paper, the authors attempt to understand the concept of such open prison institutions, the social benefits from having such institutions and the challenges that lie in the implementation of reforms in that direction. ISSN (Online) - 2349-8846

Open Prisons in India

An open prison can be understood to mean any penal establishment in which the prisoners serve their sentence with minimal supervision and perimeter security, and are not locked up in prison cells. The concept is based on principles of self-discipline and “trust begets trust” which, if managed properly, can reform the human resource. The philosophy on the basis of which the open prison exists is reflected in the two dictums of Sir Alexander Paterson. First, a man is sent to prison as punishment and not for punishment. Second, one cannot train a man for freedom unless conditions of his captivity and restraints are considerably relaxed. (Paranjpe 2001).

The concept partakes of the best features of the concepts of parole, probation and closed prisons. However, not all prisoners are to be transferred from closed institutions to open prisons. Neither a routine process of transfer is envisaged. Invariably, a screening committee is tasked with the job of ascertaining the mental and physical fitness, behavioural conduct, reformatory potential, etc, of inmates who complete a minimum mandatorily prescribed period of incarceration in closed prisons for eligibility for transfer to these semi- open/open institutions.

The Hindi feature film Do Aankhen Barah Haath2 (1957) exemplifies the concept of open prisons in India which is essentially based on humanistic psychology. The film portrays a young jail warden who takes six notorious murderers released on parole and turns them into persons of virtue. He makes them work hard with him on a dilapidated country farm, rehabilitating them through hard work and kind guidance. They eventually produce a great harvest.

The Model Prison Manual (BPR and D 2003) classifies open prison institutions in India into three types:

1. Semi-Open Training Institutions

2. Open Training Institutions/ Open Work Camps

3. Open Colonies

These institutions are graded in the increasing order of liberty granted to inmates and their potential for reformation and reintegration into the society. All these institutions have a properly demarcated area beyond which inmates are not allowed to go.

Semi-Open Training Institutions are generally attached to the closed prisons just beyond the enclosed perimeter and are relatively more under security surveillance. Those prisoners who show reformation potential are made eligible for further transfer to open prisons and colonies. ISSN (Online) - 2349-8846

Open Training Institutions/Work Camps are started in places where activities, like digging canals, water channels, construction of dams, roads, government buildings and prison buildings, projects of land reclamation, land development and bringing uncultivated land under cultivation, soil conservation and afforestation, can be organised.

In Open Colonies, inmates are allowed to bring their family members. Inmates and their family members are given opportunities to work in agriculture or allied fields or in such cottage industries or other allied suitable means of livelihood as can be conveniently organised. Wages paid to the inmates and family members are at par with outside wages. The inmates are to maintain themselves and their families with the wages earned by them in the colony.

Minimum standards, as prescribed for the closed institutions, regarding accommodation, equipment, sanitation, hygiene, medical services, diet and welfare services, are maintained. Wages at these places are higher than those at the closed prisons. Extra concessions like remission, leave and review are granted to the inmates of these open institutions. There are no restrictions on the prisoners in respect of reading materials and are allowed to pursue studies through open universities. A programme that is suitable for inmate’s training is organised and cultural and vocational facilities are also provided.

In independent India, the first ever open-air camp was set up and attached to the Model Prison at Lucknow in 1949. The state of further established an open prison camp in 1953 for the construction of a dam over Chandraprabha river near Varanasi. During the 1950s, open prison camps were set up at various places such as Chakiya, Naugarh, and Shahgarh. In , the first open prison camp was set up in Sanganer in 1963. These camps were popularly called Sampurnanand camps after the reformist politician Sampurnanand who in his capacity as chief minister of Uttar Pradesh in the 1950s and as of Rajasthan in the 1960s vigorously promoted the idea (Paranjpe 2001).

These were early examples of the open model where prisoners were allowed to engage in agriculture, forestry, cottage industry and public utilities related works. They were paid wages in lieu of their labour. The inmates were called “mazdoor” instead of convicts.

With a view to appreciate the usefulness of open prisons as a correctional measure of treatment of offenders, it shall be pertinent to look at the functioning of some of the successful open prisons of India.

Anantapur,

The open prison campus is spread over 1,427 acre located on the outskirts of Anantapur. Depending on their good conduct and completion of two-thirds of their sentence, closed prison inmates are moved to open prisons. It is based on the trust that they will not be chained and nor will they escape. The Himalaya Drug Company's corporate social responsibility initiative here is to grow a medicinal herb: Alpha Alpha. The prisoners grow ISSN (Online) - 2349-8846

the perennial crop and supply the dried herb to the company earning a suitable price for it. The pharmaceutical giant helps with the seeds, packaging and transportation of the dried herbs. The convicts also grow cucumber, brinjal, mangoes, amla, neem, jowar, etc. They get hands-on experience in agriculture and can use this skill to earn their livelihood once they are out of jail (Rao and Ray 2014).

Shri Sampurnanand Khula Bandi Shivir, Sanganer, Rajasthan

This open camp, located roughly 25 km from Jaipur and spread over four hectares, is unique in that it allows convicts to live with their families. The camp, with a low boundary wall, has about 150 prisoners including 10 women. It is manned by just two guards. The convicts build their own houses and pay for use of water and electricity. They are allowed to go out to work between 6 am and 7 pm, within a 10-km radius. Their children attend nearby schools. Prisoners engage in a wide variety of jobs; some teach in neighbouring schools, others are daily wage earners and labourers. It has a strict screening system. Those who have committed heinous offences, against the state, drug smugglers, and habitual offenders are not selected. All the inmates are required to have served at least a third of their sentences, including remission, in an ordinary jail before being eligible for transfer to this camp (Info Change News and Features 2004).

Nettvketheri,

Situated on nearly 300 acres in the foothills of the Western Ghats, this open prison houses murderers with no bars or fences. The guards carry no guns. One is as much pleased as is surprised to see that the atmosphere is peaceful and relaxed. Every convict begins his sentence in a closed prison, and those who exhibit good behaviour are transferred to the open prison. The inmates work on the prison’s 200-acre rubber plantation, tapping rubber, preparing rubber sheets, or cultivating rice paddies. Each inmate works four to six hours a day and gets wages. The sale of rubber brings in revenues that are more than enough to cover annual expenses for running the prison, and the excess goes back to the Kerala state government. Inmates get to spend one month out of six with their families. There is also a special five-day leave granted in the event of a family member’s death, wedding, or other important occasion. The continuing involvement with their home and community allows the family to share the burden of reform with the state. The open prisoner’s family involvement also allows the criminal to gradually heal the community’s wounds associated with their crime (Merkel 1994). Superiority of Open Prisons over the Conventional Form of Incarceration

In a plethora of judgments, the has laid down the contours of the rights and entitlements of the prisoners which must be taken into consideration when dealing with various aspects of prison administration. The same are succinctly summarised in the following three principles (BPR and D 2003): ISSN (Online) - 2349-8846

(i) A person in prison does not become a non-person.

(ii) A person in prison is entitled to all human rights within the limitations of .

(iii) There is no justification in aggravating the suffering already inherent in the process of incarceration.

In Ramamurthy vs State of (1997), the Supreme Court had explicitly observed that open prisons represent one of the most successful applications of the principle of individualisation of penalties with a view to social readjustment.

Vibhute (2015) is of the opinion that the vocational activities by the inmates of open prisons not only provide opportunities to engage in fruitful pursuits during the term of sentence but also make them learn skills that enable them to follow a vocation on release. Moreover, the gainful work at the open jails keeps their inmates mentally occupied and thereby desist them from turning out the devil’s workshop. It gives them self-confidence and self-esteem. It also goes a long way in developing a responsive and respectable attitude in the inmates towards society (Borah 2018: 66–74).

Open prisons are reminiscent of the Gandhian Ashrams where the emphasis was on shared communal living on cooperative basis along with efforts for development of moral character, which in turn has great reformatory and emancipatory potential.

Open prisons herald a paradigm shift in prison administration by addressing the issue of overcrowding in Indian jails. As on 31 December 2018, the prison population was 4,66,084 as against an official capacity of 3,96,223 (representing an occupancy rate of 117.6%) distributed throughout the country (NCRB 2018a: 20). The prison population has been steadily increasing during the last decade. This puts pressure on the budgetary resources of the government. Open prisons significantly reduce construction, operation and maintenance costs incurred on security and prison staff.

A study on open prisons (Bhatnagar 2017), initiated by the Rajasthan State Legal Services Authority (RSLSA), concludes that open prisons are “not resource intensive” but rather “cost effective,” which is where the need to create more open prisons across the state arises. Independent researcher Smita Chakraburtty was appointed the honorary prison commissioner by the authority to conduct interviews of 428 prisoners covering 15 open prisons spread across the state between April–November 2017. Her research noted that the open prison system had many social and economic advantages for both the state and the inmates. Using comparative data of Jaipur central prison and Sanganer open prison, the study points out that in an open prison, only one prison staff member was required per 80 prisoners. With all their benefits, open prisons proved 78 times cheaper than closed prisons. While the cost per prisoner in Jaipur central prison was Rs 7,094 per month, the cost at Sanganer open prison was just Rs 500 per month. The study has revealed that the open jail system can also reduce overcrowding in prisons. With most jails having 70% undertrial ISSN (Online) - 2349-8846

prisoners and 30% convicted prisoners on an average, the report noted that one of the major causes of overcrowding remained the large population of under-trial prisoners in prisons.

There is a common belief that if undertrials are sent to open prison, they will escape. But the study found that the prisoners did not escape even when they were kept in the open without a security barricade.

Open prisons also hold the possibility of diminishing the growing incidence of of prisoners. Growing incidence of recidivism is attributed to the post-release frustration of prisoners because of their inability to reintegrate in the society. This stems from social stigma attached to the convicts, lack of employment skills, mere completion of prison sentence without any moral reformation, etc. Open prisons can employ a larger share from the budgetary resources on better prison reformation programmes.

The prisoners can be further made to earn their livelihood by employing them in rural public works which will also indirectly help in the conservation of natural resources. It is a win-win for the prisoners and the community at large.

In Dharmbir vs State of Uttar Pradesh (1979), the apex court observed that open prisons have certain advantages in the context of young offenders who could be protected from some of the well-known vices to which young inmates are subjected to in conventional jails.

Having been neglected by their families, old age prisoners find it difficult to fend for themselves upon release as they get accustomed to a life in prison, dependent on care by fellow inmates. Open prisons can help these prisoners in transitioning to a normal life.

Many families are devastated when their sole breadwinners are sentenced to long periods of imprisonment. Open prisons actively encourage prison visits in initial stages and even allow families to stay with prisoners and together earn livelihood.

During public health emergencies like the outbreak of epidemic diseases (similar to the COVID-19 pandemic that we are currently experiencing), open prisons can be a gamechanger. As discussed, Indian prisons are woefully overcrowded and acutely understaffed. Tall prison walls cannot prevent a pandemic from entering jails. As per Chakraburtty, “The view that there is no scope of a virus outbreak inside a prison because they are segregated spaces is erroneous. On any given day, hundreds of prison staff and inmates move in and out of jails, aggravating the risk of affecting the general population” (Chakraburtty 2020).

In times like these, prisoners may be granted special emergency parole. Shifting of prisoners to an open prison is also appropriate. States need many more open prisons as there is evidence to suggest that these institutions are a cost-effective and humane alternative. The release of such prisoners may be considered and residents of open prisons ISSN (Online) - 2349-8846

may also be granted parole. Challenges in Implementation

The expectations, immediately post-independence, of successful implementation of the idea of open correctional institutions uniformly across the states, have been tempered if the latest Prison Statistics of India Report, 2018 (NCRB 2018b: 29) is anything to go by. As per the report, as of 31 December 2018, among all the states and union territories, only 17 have open jails. Rajasthan has 31 out of a total of 77 open prisons in India. has the highest occupancy rate (114.53 %), while Andhra Pradesh has the lowest rate (15.33 %). Only two states, and Kerala, have created capacity for female inmates in open prisons. Despite the lower number of open prisons, Maharashtra has the highest capacity for inmates in its open prisons (Table 1).

Table 1: Capacity, Inmates Population and Occupancy Rate of Open Jails as on 31 December 2018 ISSN (Online) - 2349-8846

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Source: Prison Statistics of India Report, 2018, NCRB.

Why is it that despite the obvious advantages outlined in the earlier section of this paper and the political impetus given to the adoption of the idea in the years immediately after independence, the implementation leaves much to be desired?

Although the states in India, on their part, have set up numerous enquiry and reform committees since independence, they have somehow lacked the political will to see through the reforms in their totality. This could be due to public indifference to the plight of ISSN (Online) - 2349-8846

prisoners who are often seen as criminal’s incapable of moral and social reform.

Lack of uniformity across states is a major challenge in the establishment and management of open prisons. The inability of the central government to ensure uniform standards and reforms in prison administration across the states is often attributed to a lack of legislative initiative. The subject matter of prisons and allied matters comes under the legislative domain of the states under List II of the Seventh Schedule of the .

The success of the open prison concept is contingent on availability of large areas of land around the closed prisons to serve as natural perimeters within the boundaries of which inmates are required to engage in varied activities for sustenance. This is rather difficult in the current Indian context due to growing land scarcity.

More often than not, the social stigma attached to convicts frustrates any efforts at rehabilitation through open prisons because society still remains unconvinced about any genuine reformation in convicts/ex-convicts and is reluctant to employ them in productive activities or engage in social intercourse with them. Open prisons exemplify trust between the state machinery and the convicts. But whether this trust also gets established between the society and the convicts/ex-convicts is the primary question.

Chakraburtty discusses the problems with regard to aged prisoners in the open prison in Buxar (Chakraburtty 2015). As is the common practice, they are encouraged to stay with their families, but find it difficult to adjust as most of them have lost touch with their families owing to prolonged imprisonment. Old-age prisoners find it difficult to earn their livelihood in the open prison system. Therefore, these persons cannot be asked to go back to closed prisons due to their inability to be self-reliant. The Way Forward

In order to address the lack of uniformity across states in the establishment and management of open prisons, it is open to the centre to frame a law under Article 253 of the Constitution, which empowers the union to frame laws to give effect to the international agreements. India has already ratified the International Covenant on Civil and Political Rights, 1966 (BPR and D 2007).

Other legal options recommended are the inclusion of the subject matter of prisons and allied matters in the and the incorporation of principles of management of prisons and treatment of offenders into the Directive Principles of State Policy under Part IV of the Constitution by way of a constitutional amendment under Article 368 (Mulla 1983).

Insofar as the question of establishing trust between the society and the convicts/ex-convicts is concerned, only the success of model open prisons will instil the desired confidence in the system and ensure there is no opposition to the promotion of more such prisons. In order to achieve the best results, it is important that attention be given to those projects where ISSN (Online) - 2349-8846

availability of manpower is in short supply. There is also a need for continuous and comprehensive monitoring of the projects and the convicts/ex-convicts in order to not only evaluate the causal link between the gainful employment of these convicts/ex-convicts and the success of the projects but also ensure that there is no recidivism among the convicts/ex-convicts.

It is instructive to note that the RSLSA study on open prisons (Bhatnagar 2017) recommends that the practice be extended to cover undertrial prisoners apart from the convicted ones due to its many advantages. It recommends opening a minimum of two open prisons in each district of the country. The study goes on to demand that the scheme should cover “low-risk prisoners” or those who have not shown any violent trait while staying in prison as undertrials and accused persons who have surrendered in court or police station and courted imprisonment.

The success of the whole venture is eventually contingent upon the dedication with which the state devotes its time, energy and resources in making this peno-correctional institution a success. When the faith of the society in these institutions takes firm root, only then is one assured of the true reintegration of these prisoners. In Conclusion

The reformatory theory of justice postulates removing the dangerous degeneracy in a criminal and afford them a chance to make a fresh start. They must be made answerable not only to others for the wrongs inflicted but also to the self, so that they are, in true essence, free. The current penitentiary structure craves for a community-led reform process where the retributive and punitive forms of punishment are clearly seen as unsuited for access to justice. Open prisons as a peno-correctional institution have superiority over the more conventional forms of incarceration and are a holistic response to ensure reintegration of the prisoners upon their release. It is time our prisons be opened. Justice V R Krishna Iyer rightly says, “Every saint has a past and every sinner a future, never write off the man wearing the criminal attire but remove the dangerous degeneracy in him, restore his retarded human potential by holistic healing of his fevered, fatigued or frustrated inside and by repairing the repressive, though hidden, injustice of the social order which is vicariously guilty of the criminal behaviour of many innocent convicts. Law must rise with life and jurisprudence responds to humanism” (Iyer 1978).

End Notes:

[1] Justice V N Sinha of the Patna High Court and Executive Chairman of the Bihar State Legal Services Authority commissioned the author of the Report, Smita Chakraburtty, an activist and a researcher on prisoner rights, to visit all the 58 prisons of Bihar and report the findings. ISSN (Online) - 2349-8846

[2] The film is inspired by the story of an “open prison” experiment at Swatantrapur in the then of Aundh near Satara (Now in Sangli district of Maharashtra).

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