S.

S JAIN SUBODH LAW COLLEGE

S.S JAIN SUBODH LAW COLLEGE

MANSAROVER JAIPUR

“OPEN PRISON- EMERGING SYSTEM

IN INDIA”

CODE OF CRIMINAL PROCEDURE

Submitted By:

Submission To: BHASKAR MITTAL

Mr. ZEESHAN HASHMI ROLL NO. 18

ASSISTANT PROFESSOR 9th Semester

S.S. Jain Subodh law college

 S.S JAIN SUBODH LAW COLLEGE

TABLE OF CONTENT

Table of Contents
 Introduction
 Backdrop
 Relevance of Laws and Legal Principles
 The Human Rights perspective
 The Principles of natural justice and jurisprudential aspects
 The Concept and Working of Open Prison in India
 Statistics
 Conclusion
 S.S JAIN SUBODH LAW COLLEGE

DECLARATION

I, BHASKAR MITTAL, do hereby declare that, this Research topic titled “OPEN PRISON-
EMERGING SYSTEM IN INDIA” is an outcome of the research conducted by me under the guidance
of MR. ZEESHAN HASHMI (ASSISTANT PROFESSOR) at S.S. Jain Subodh Law College in
fulfillment for the award of the degree of [Link].B. At the University of Rajasthan. I also declare that,
this work is original, except where assistance from other sources has been taken and necessary
acknowledgements for the same have been made at appropriate places. I further declare that, this work
has not been submitted either in whole or in part, for any degree or equivalent in any other institution.

Date: 01/04/2021

Place: JAIPUR
S.S JAIN SUBODH LAW COLLEGE

CERTIFICATE
This is to certify that, the Research topic titled “OPEN PRISON- EMERGING SYSTEM IN
INDIA” submitted by BHASKAR MITTAL in fulfillment for the award of the degree of
[Link].B. At S.S. Jain Subodh Law College is the product of research carried out under my
guidance and supervision.

Mr. ZEESHAN HASHMI

(ASSISTANT PROFESSOR)

S.S. Jain Subodh Law College

S.S JAIN SUBODH LAW COLLEGE

ACKNOWLEDGEMENT

This project is incomplete without thanking a few people who have been my pillar of support
throughout this work. I owe my gratitude to all those people who have made this project
possible.

I would like to express my deep and sincere gratitude to my teacher MR. ZEESHAN HASHMI
for her continuous support. She has always been there to listen, guide and help me and has been
constantly monitoring the progress of my work and showed me the different ways to approach a
research problem and also the need to become persistent to accomplish any mission.

I am also obliged to acknowledge the college administration for providing a wonderful library
which is a storehouse of knowledge and also for providing all the electronic resources without
which no such research could have been possible.

Finally, I would like to thank everybody who played a significant role in the successful
completion of my dissertate

Place: - Jaipur Bhaskar Mittal

S.S JAIN SUBODH LAW COLLEGE

RESEARCH METHODOLOGY

Aims and Objectives:

The aim of the project is to present a detailed study of the topic “OPEN PRISON- EMERGING
SYSTEM IN INDIA” forming a concrete informative capsule of the same with an insight into its
relevance in the CRPC.

Research Plan:
The researches have followed Doctrinal method.

Scope and Limitations:

In this project the researcher has tried to include different aspects pertaining to the concept of
OPEN PRISON- EMERGING SYSTEM IN INDIA.

Sources of Data:
The following secondary sources of data have been used in the project-

*Case Study

*Websites/ Articles

*Books

Method of writing:
The method of writing followed in the course of this research project is primarily analytical.
 S.S JAIN SUBODH LAW COLLEGE

INTRODUCTION

“Prison” is defined under section 3 of the Prisons Act, 1894. Prison in its general sense, is a place
where a person who is convicted of an offence and have been awarded punishment of imprisonment
for a specific time period, is kept. Earlier, the concept of prison was confined to the enclosed walls
wherein the convicted person was kept with an intention to keep him away from the social life and
luxuries and repent for the wrong done by him. But later on, after quite a long time, the society and the
authorities in power were able to understand that even the prisoners should enjoy the dignified life.
Earlier, the society and government towards the prisoners were little insensitive towards the human
rights of the prisoners. However, the fact was later on realised that a society is deemed to be a civilised
one and a well organised one in accordance with the law only when the individuals are given due
recognition to their fundamental rights, no matter if he is a normal citizen or a person convicted of an
offence and confined behind the prison bars.

Open prison, or an open jail, in this regard, has been set up with minimum security measures against
escape and with rehabilitative and reformative approach rather than a deterrent one. As compared to a
controlled jail, the rules of an open prison are less stringent.

Before the completion of the sentence, it is desirable that the necessary steps be taken to ensure for the
prisoner a gradual return to life in society. This aim may be achieved, depending on the case, by a pre-
release regime organized in the same prison or in another appropriate institution, or by release on trial
under some kind of supervision which must not be entrusted to the police but should be combined with
effective social aid.1 The establishment of open prisons was of great significance in this regard and in
light of the fact that as a result of imprisonment, the family affairs of the convict/offender is largely
affected. Imprisonment results in a major suffering not only to the convict/offender but also to the
family members who is dependent on the income of the convict/offender.

In a writ petition filed in the Apex Court, the learned Amicus suggested the hon’ble Court that over-
crowding in jail should be reduced and that might help in reducing the possibility of suicide by the
prisoners. For the same purpose, the concept of open jails should be encouraged. The Supreme Court
opined that the suggestion given by the learned Amicus of encouraging the establishment of ‘open
jails’ or ‘open prisons’ is worth considering.2

1
Rule 87, The United Nations Standard Minimum Rules for the Treatment of Prisoners, 2015 (The Nelson Mandela Rules).
2
In Re: Inhuman Conditions in 1382 Prisons (15.09.2017- SC) : MANU/SC/2017.
Backdrop

In 1952, the Hague conference recommended the organisation of open air camps. It stipulated that
those prisoners, who have spent satisfactorily a certain portion of the term of their sentence, should be
transferred to open-air camps and allowed to lead a near-community life. These work-based camps
would have a small inmate population and have bare minimum security arrangements. Further, the
inmates would work and earn parity wages.3

The UN Standard Minimum Rules for the Treatment of Prisoners (SMRs) were initially adopted by the
UN Congress on the Prevention of Crime and the Treatment of Offenders in 1955, and approved by the
UN Economic and Social Council in [Link] 17 December 2015 the Standard Minimum Rules were
revised and adopted unanimously by the UN General Assembly as “The Nelson Mandela Rules.” India
being a signatory of such document, these Standard Minimum Rules is to play a significant role in
prison system and reforms in India.

In India, the concept for Open prison system can be traced back in 1836 when first All India Jail
Committee was set up. However, the results were not satisfactory and a number of committees were
appointed since then, the important one being, All India Committee on Jail Reforms 1956. The most
significant committee which played a major role in the development of open prison system in India
was The Mulla Committee.4 The Committee states regarding open institutions under Chapter XIX of
the committee report.

Coming to the role of judiciary, the landmark case of Sunil Batra v. Delhi Administration5 set the
constitutional dimensions of a person behind the bars. The cases like “Charles Shobhraj” and “Sheela
Barse”6 further sculpted the path to constitutional rights of a prisoner, more specifically, Article 21 of
the Constitution. Going with Article 21 of the Constitution, the concept of open air prisons is worth a
discussion. Ramamurthy v. State of Karnataka7 is one of the earliest cases that put forward the
concern of open air prisons.

3
Section 24, Implementation of the Recommendations of All-India Committee on Jail Reforms (1980-83):Volume 1,
Prepared by: Bureau of Police Research & Development, Ministry of Home Affairs, New Delhi, 2003.
4
All India Committee on Jail Reforms, 1983.
5
AIR 1978 SC 1548
6
Sheela Barse v. State of Maharashtra AIR 1983 SC 378
7
MANU/SC/04021997
Relevance of Laws and Legal Principles

Article 21 of the constitution of India:

As such, there is no specific right guaranteed under any article of the Constitution of India for
prisoners. But indeed, the essence of human rights of prisoners is present under article 21 of the
Constitution of India. According to article 21, “no person shall be deprived of his life or personal
liberty except according to the procedure established by law.” And, through various judgements it
quite clear today that we cannot exclude prisoners under the meaning of the word ‘person’ under this
article. So they cannot be deprived of their basic rights enshrined under the article. Hence, if a prisoner
satisfies certain conditions as laid down under the relevant laws and rules, he rightfully be sent to open
prisons. Therefore, the judiciary, with the passage of time and through various judgements have
widened the scope of Article 21 which stretches its arms while reaching the rights of a prisoner and
giving due recognition to the fact that they also have a right to live with dignity, right of livelihood,
right of humane treatment and healthy environment and right to enjoy the personal liberty. Going with
this broader meaning of Article 21 of the constitution of India, the establishment of open prisons could
very well be justified.

The Human Rights perspective:

Conventionally, human rights have been divided into broad categories: civil and political or ‘first
generation rights’ including the right to life, the right against arbitrary arrest and detention, and right to
freedom, and, social, economic and cultural rights or ‘second generation rights’ such as the right to
health and right to social security. 8 The rights in the nature of first generation rights were considered in
the earlier years after the formation of the constitution. But with the passage of time the second
generation rights were being given due importance and started being considered as a part of
fundamental rights rather than being taken in the nature of directive principle. India, being a signatory
to International Covenant on Economic, Social and Cultural Rights9 cannot deny the obligation to
establish the open prisons within the country, knowing the fact that most of the other signatory
countries have successfully done that. From the perspective of Human Rights jurisprudence, the
observation of such a concept is significant.

8
10 Judgements that Changed India- by Zia Mody, Penguin Random House India Pvt. Ltd., page 77 para 1.
9
Adapted by the General Assembly on 16th December 1966 and entered into force on 3rd January, 1976.
All human beings, whatever their cultural or historical background, suffer when they are intimidated,
imprisoned and tortured… We must, therefore, insist on a global consensus, not only on the need to
respect human rights worldwide, but also on the definition of these rights… for it is the inherent nature
of all human beings to yearn for freedom, equality and dignity, and they have an equal right to achieve
that.- 14th Dalai Lama.

The Principles of natural justice and jurisprudential aspects:

The rights in question are also rooted in ancient thought and in the philosophical concept of ‘natural
law’ and ‘natural rights’. Plato (427-348 B.C.) was one of the earliest writers to advocate a universal
standard of ethical conduct. The Roman jurist Ulpian stated that according to the law of nature, all men
are equal, and by the same law all are born free. 10 The proximate object of jurisprudence is to secure
liberty to the individual and its ultimate object is the same as that of ethics which is the attainment of
human perfection. Liberty is an essential prerequisite to the perfection of human personality.11
Following the principles of natural justice and philosophical school of jurisprudence it can be
construed that though a person convicted of an offence and imprisoned thereof deserved such
imprisonment, however in light of natural justice such person must be given a chance to reform himself
if there is a scope for the same.

The Concept and Working of Open Prison in India

Among other things, the open institution is based on the already recognised fact that not all offenders
need to be sent to prisons. 12 The UN Congress on the Prevention of Crime and the Treatment of
Offenders at Geneva, in 1955, described open prison in the following words: “An open prison is
characterised by the absence of material or physical precautions against escape (walls, locks, bars,
armed or speared security guards) and by a system based on self-discipline and the inmates sense of
responsibility towards the group in which he lives. 13

10
International Law and Human Rights by Dr. H.O. Agarwal, Central Law Publications, Third edition- 2012, Page 373 para
1.
11
Jurisprudence and Legal Theory by V.D. Mahajan, Eastern Book Company, Fifth edition-2016, Page 510 para 3.
12
Manual- Lopez Rey, The First UN Congress on Prevention of Crime and Treatment of Offenders, Volume 47, Criminal
Law, Criminology & Police Sci. 526 (1956-57), Page-533
13
Quoted in: I.C. Vatsa “ Open Peno Correctional Services” P-42.
The idea is to help a prisoner to re-socialize with the outside world and rehabilitate and reform himself
so as to be ready to absorb the environment of outside world once his term of imprisonment is over.
However, a prisoner who has been sentenced to life imprisonment could also be sent to open prison
depending upon the fulfilment of certain conditions or rules. The open jails in India involve the
activities such as farming and animal husbandry.

The prisoners who have completed a substantial amount of their punishment in closed prison and who
have shown a good behaviour throughout that duration are eligible to be sent to open prisons. Prisoners
with good behaviour satisfying certain norms prescribed in the prison rules are admitted in open
prisons. Minimum security is kept in such prisons and prisoners are engaged in agricultural activities.14

Advantages:

 Reduction of over-crowding in closed prisons.

 Inmates are allowed to go out and meet their family members.
 Better environment of work.

Limitations:

 With better conditions of living and work environment, prisoners may find the jail more
comfortable than the outside world and be reluctant to leave the jail even after the completion
of tenure of punishment.
 Although the concept of open prison is different from the closed prison in its structure and
objective, there is no Central Statute enacted for the purpose of open prisons till date.

Statistics

Only 17 states have reported about the functioning of open jails in their jurisdiction. Amongst these
states, Rajasthan has reported the highest number of 29 open jails followed by Maharashtra(13), Kerala
& Tamil Nadu (3 each) and Gujarat & West Bengal(2 jails each). The remaining 11 states- Andhra
Pradesh, Assam, Bihar, Himachal Pradesh, Jharkhand, Karnataka, Madhya Pradesh, Odisha, Punjab,
Telangana and Uttarakhand Have one open jail each. The highest capacity of inmates in open jails was
reported in Maharashtra (1,522) followed by Rajasthan (1,325).15

14
NCRB report 2015, under Chapter 1: Prison Institutions.
15
NCRB report on Prison statistics India- 2015, Table 2.7.
Critical Appreciation

The Prison rules are a subject of state. As such, the rules vary from state to state and there are no
uniform rules for all the prisoners. As a consequence, there might be a possibility of arbitrary
provisions laid down by different state legislatures. Selection of candidates to be sent to open prisons is
done by different state committees set up under the relevant State Prison Rules. This could swipe away
deserving convicts. Also, there is no good justification for why open prisons are not set up for women
and under trials. Adding more, the capacity of open prisons regarding the maximum number of inmates
remained underutilized. 16

The idea of taking correctional measures for reforming a prisoner is appreciated, however the basic
facts remains that a prisoner is a criminal in his very nature and there is no assurance as to whether he
could actually be reformed and brought back to a decent attitude from a notorious one after the
correctional efforts made on him by the prison administration.

16
As per the data on open jails in the NCRB report on Prison Statistics India- 2015, Table 2.7.
 Conclusion

I would like to conclude by saying that in India it is important to have a clear and specialized
legislation to identify and categorize prisons and prisoners. In the Indian prisons, the Act of 1894 on
prisons, the Act of 1900 on prisoners and the Transfer of prisoners of 1950, three Acts which do not
even describe the prison types in detail or identify the various prison types in India thoroughly and
classifies them. In my view, the categorizing of the various categories of prisoners for convictions
would prevent the emergence of potential inmates from being subjected to trials that might not be
guilty of convicted offenders. The Setting limitations on the jail sentences of certain cases by statute
also meant that the delivery mechanism for criminal justice was easier and would eventually result in
fewer prisons in India. The adoption of the type of prisoner categorization in the USA and of a
modified system of prisoner categorization in the USA and India would significantly contribute to the
reduction of the burden and restrictions on Indian prisons. It helps treat the inmate rather than keep him
untreated in jail.
 Bibliography

Books Refer:-

1. Paranjape N.V., Criminology and Penology, Deluxe Edition 2008, Central Law Publication

2. Dr. J.N. Pandey, Constitutional law of India”, published by central law agency, Motilal Nehru
Road, Allahabad (Pryagraj).

3. Dr. M.P. Singh & V.N. Shukla, “Constitutional of India”, thirteenth edition-2015, Eastern Book
Company, Lalbagh, Lucknow.

4. Dr. S.R. Myneni, “Constitutional law-I, Asia Law House opp. High Court, Hyderabad - 2 nd
Edition-2018.

5. Dr. Suresh V. Nadag ouder, Judicial Contribution to prison reforms in India- An Overview,
Banglore Law Journal at-55.

Website Refer:-

[Link]

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[Link] relat Women [Link]