Beyond Brick Walls: Reimagining Punishment in Modern India

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INTRODUCTION

In “Azadi ka Amrit Kal,” the Indian penitentiary system remains rooted in the colonial framework. The process of penalizing transgressors in India has historically focused on the notion of punishing wrongdoers, while disregarding their inherent human rights and dignity within the correctional facilities. This approach perpetuates a cycle of recidivism, rather than promoting rehabilitation and reform.

Despite the extraordinary efforts of Kiran Bedi in prison reforms, the occupancy rate of prisons by the end of 2021 was 130.2%, as per NCRB. Overoccupancy represents a lethargic condition in implementing jail reforms and forces us to think about ignoring fundamental human rights. However, the Reformative Theory of Justice states that the purpose of imprisonment is not to lock up the criminal and forget him. However, the goal is to transform him from anti-social to social, from a law-breaking to law-abiding, and from an unruly to a disciplined member of society. Unfortunately, the current prison system is doing anything but this.

The concept of open-air or semi-open-air prison is lesser-known, yet intriguing. This plays a crucial role in correctly applying the Reformative Theory of Punishment. An Open-air Prison can be understood as part of penal punishment, where prisoners serve their sentences with minimum supervision and security and are not locked in prison cells. They are allowed to go out and work, live with their families within the area provided by the government, and live a life that directs them towards a better future.

The Model Prison Manual 2016 states that all Open and Semi-open institutions are intended to practice the contemporary ideology of reformation, correction, and rehabilitation of convicted prisoners, so that they may lead a self-disciplined and cultured life after release. These institutions provide prisoners with employment opportunities and open spaces. This restores an individual’s dignity and develops self-reliance, self-confidence, and social responsibility, which are necessary for their rehabilitation. In the 1996 case of Rama Murthy v. State of Karnataka, the Hon’ble Supreme Court advocated the need for “more and more open prisons.”

BRIEF HISTORY OF OPEN-AIR PRISONS

The first open-air prison in the world was established in Switzerland in 1891, the United States in 1916, Britain in 1930, and the Netherlands in 1950. In the 18th century, there was a revulsion against the theory of deterrence by two prison reformers: John Howard and Jeremy Bentham. They thought that institutions built to rehabilitate criminals would help prevent crimes. Many institutions put this thought of reformation to the test in the late 18th century. This attempt to bring reformation failed during the practice trials. However, with sustained efforts to bring reforms within Prisons, a Witzwill establishment was established in Switzerland in 1891, marking the beginning of the slow acceptance of the idea of open prison.

The first open-air camp in independent India was established in 1949 and named the Model Prison in Lucknow. Further, an open-air prison camp was also built in the State of Uttar Pradesh in 1953, built to build a dam over the Chandraprabha River near Varanasi.  In the 1950s, several open-air prisons were established at different locations, including Chakiya, Naugarh, and Shahgarh. However, Uttar Pradesh currently has no Open-air camp, according to the data provided by the National Crime Records Bureau (NCRB) while Rajasthan received its first open-air prison in Sanganer in 1963.

CONCEPT OF OPEN-AIR PRISONS IN INDIA

The Mulla Committee was the most crucial committee that influenced India’s formation of an open prison system. In Chapter XIX of the committee report, the Committee made a statement about available institutions. 

According to the data provided by NCRB in its Prison Statics Report 2020, there are 88 open-air prison camps in India, with the most significant number of camps in Rajasthan counting 40. However, none of the Union Territories have constructed an open-air jail yet. The prisons are regulated by the Prison Act of 1900, and each state follows its manual and rules on prisons. Every state in India has its prison law, such as Rajasthan Prisoners Rules, 1979.

NCRB data also shows that mostly male prisoners are selected for open-air prisons. Only four states, namely Jharkhand, Kerala, Maharashtra, and Rajasthan, have female prisoners in their open-air jails.

According to the 2020 NCRB data, 1,427 women prisoners with 1,628 children are in jail. They bring their children up with other offenders and do not give them the most appropriate upbringing environment. A child is permitted to stay with their mother till six and then is sent to the institutional care centre, leaving the child and mother both in deep remorse. This is avoidable if these women prisoners, like the male prisoners, are shifted to open-air prisons and educational centres are set up there. This will not only omit the concept of sending a child away from their mother but also motivate female prisoners to behave better in ordinary prisons to stay close to their child for a long time.

WHAT KIND OF CRIMINALS ARE ALLOWED IN OPEN-AIR PRISONS?

The Model Prison Manual specifies seven categories of prisoners not eligible for transfer to open institutions. Those convicted of heinous crimes like rape, murder, dacoity etc., and those who have their cases pending are not eligible for open-air prisons.

A classification committee is formed, which thoroughly screens and reviews the past conduct of prisoners while selecting who can be transferred to an open-air prison. The Manual consists of 9 heads, which must be considered while assessing a prisoner for transfer in open or semi-open air prisons.

Offenders under 21 are also not allowed to be transferred to open-air prisons until they stay in the Juvenile Detention Center. This was according to Model Prison Manual 2016. However, according to the rules laid down by the respective state governments, states follow different rules. For example, the open prisons of Maharashtra follow the Maharashtra Open Prison Rules, 1971, which do not allow the transfer of female prisoners to open-air prisons. Similarly, per the Rajasthan Prisoners’ open-air camp rules 1972, prisoners did not have an abode in Rajasthan or a place of residence outside Rajasthan.

THE REFORMATIVE THEORY OF PUNISHMENT.

“Every saint has a past, and every sinner has a future.” This statement by V.R. Krishna Iyer shows how prisoners can have a future if provided with the right opportunities.

In the case of Mohammad Giasuddin v. State of Andhra Pradesh, it was observed that reformation should be the dominant objective of punishment. Every effort should be made to recreate the good man out of the convicted prisoner during incarceration. The object of the sentence should be to rehabilitate the offender. The criminal must be educated and trained with some skills during imprisonment to lead a good life once released from confinement.

A crime is committed due to the conflicts between the character and the criminal’s motive. One may commit a crime either because the temptation of the reason is more robust or because the restraint imposed by nature is weaker. The reformative theory tries to act like medicine, curing the ills and strengthening the immunity that is the character of the person so that the same mistake is not repeated. Reformative theory can be easily explained by taking Crime as a disease. One can cure a person by killing them, but curing them and making them live as a better person would be a better option for humankind.

The Nelson Mandela Rules, or The United Nations Standard Minimum Rules for the Treatment of Prisoners, mentions five basic principles: Humane Treatment, non-discrimination, normalisation, safety and security, and tailored rehabilitation. The Black Law Dictionary defines Rehabilitation as the “restoration of an individual to its greatest potential, whether physically, mentally, socially or vocationally.”

SHORTCOMINGS IN THE PRESENT OPEN-AIR SYSTEM

The inadequate number of setups is one of the most significant shortcomings of the present open-air system. Additionally, even the currently functioning open-air prisons are not being utilised properly. According to Prison statistics, 2178 prisoners in an open-air prison can accommodate 5,953 prisoners. At the same time, almost all central, state and district-level prisons have more prisoners than their capacity.

The selection committee formed for the selection of prisoners to be transferred to open prisons is not answerable to anyone. It does not provide a reason for the selection or rejection of any prisoner. This leads to arbitrary and unfair choices and increases the chances of corruption.

There is no provision for Open Jails for under-trial prisoners. According to a report, out of 5,54,034 prisoners, 4,27,165, 76%, were undertrial prisoners. Keeping in mind that these people are just accused and not convicted of any crime, still have to spend a part of their life in dark, dingy cells of traditional jail makes this worse.

The current rules and regulations for the functioning of open-air prisons are old and must be modified to fit the current situation.

RECENT HAPPENINGS

Prison Aid and Action Research (PAAR) has developed a groundbreaking animated film on open prisons in Rajasthan, the first of its kind. The film aims to shape public opinion in support of rehabilitation efforts and establish an advocacy framework for a widespread shift from closed prisons to an open prison system. The film is available for viewing on YouTube.

Around 50 prisoners from a prison in Sivaganga district, Tamil Nadu, were selected to be transferred to an open-air prison for the cultivation of farmland. According to the Prisons DIG, the prisoners were chosen on the basis of their behaviour and conduct in jail. The reason for doing so was to connect them with society and to produce good-quality material at a lesser price, which would be sent to prison and the market for the public. These prisoners were also given a salary for the same.

Similarly, The Prisons Department conducted a single-day beekeeping training session for the inmates at the open-air jail in Ondipudur on Tuesday. The training aimed to provide the prisoners with beekeeping skills, enabling them to pursue apiculture as a source of income upon completing their sentences. Additionally, the inmates produce three types of vegetable oils (coconut, gingelly, and groundnut) marketed under the brand name ‘Freedom’ through the prison bazaar located on Dr. Nanjappa Road, Gandhipuram. In 2018, a Beauty parlor was also inaugurated in the open prison of Cheemeni known as The F men.

THE WAY FORWARD

To establish consistency nationwide, the central government can enact legislation under Article 253 of the Indian Constitution, granting the union the authority to formulate laws in alignment with international agreements. While some states have integrated provisions for open-air prisons into their existing laws, others have yet to embrace this progressive concept. A decisive decree by the central government would ensure the establishment of at least one open-air facility in every state and union territory.

Open-air or semi-open prisons offer a unique opportunity for offenders to contribute to their families’ support, serving as a demographic asset for the country. These facilities could strategically be situated near industrial areas or locations employing labour-intensive methods, effectively harnessing human resources and maintaining a balanced labour supply and demand.

Given that open-air prisons are more cost-effective than traditional ones, the funds saved can be redirected to employ personal case managers. These dedicated professionals can concentrate on fewer individuals, facilitating their personal development and growth. By tailoring plans based on individual needs, these case managers can guide offenders toward a more promising future.

The realisation of effective legislation concerning open-air prisons, coupled with rigorous implementation, promises not only to enhance the current state of the prison system but also to secure a brighter future for both the nation and its incarcerated individuals

Mohammad Giasuddin v. State of Andhra Pradesh, 1977(3) SCC 287.

Shyokaran and Others v. State of Rajasthan and Others, 2008 CriLJ 126.