Advocate Meenu Padha & Tavleen Kaur
“Society must condemn crime through punishment , but Brutal Deterrence is a Fiendish folly and is a type of crime by punishment. It terrifies but never refines; it wounds but never heals.”
( Justice Krishna Iyer)
Open prison systems are based on the Reformative theory of justice and argue for rehabilitating criminals without confining them. The aforementioned point of view emphasises that men are sent to prison as punishment, not for punishment. The reformative theory of justice proposes removing a criminal’s harmful degeneracy and giving them a chance to start over and live an honest life. This guarantees basic human dignity, an essential constitutional and human right. The present penitentiary structure, with its primary emphasis on punitive and retributive forms of punishment, is unsuitable for protecting human dignity. The current jail administration in India is antiquated, opaque, and rife with systematic abuses. There is a pressing need to implement various prison reforms.Prisons have existed in India and overseas as penal and correctional institutions since time immemorial. Prisons detain criminals, convicts, and those awaiting prosecution. The main goal of prisons is to isolate or alienate such people from society. They are imprisoned for a set length of time, but the goal of reformation and rehabilitation is sometimes undermined by the prison environment and the treatment meted out to prisoners. Prisons such as the Tower of London, Alcatraz, and the Bastille have been viewed as symbols of indefinite confinement and suffering. Dark and dingy cells, poor food, physical and mental torment, inhumane conduct of jail staff, presence of hardcore criminals, drugs, corruption, seclusion, and lengthy periods of incarceration all make it difficult for inmates to reintegrate into civil society after their release. The situation is no different in India. Overcrowding, understaffing, prison violence, poor medical facilities and other amenities, long-term incarceration of undertrials, forced hard labour on undertrials, abuse of discretionary powers by prison officials, limited access to legal aid, and rampant sexual abuse of inmates are just a few of the major issues that inmates face in prison.
In this light, various sociologists, thinkers, jurists, and legislators from around the world have advocated for various prison reforms. It is now generally acknowledged that punishment alone does not work to reform the wrongdoer. It must be supported by methods to motivate and shape behaviour from bad to good and wrong to right. It must cultivate humane sensibilities and sensitise people to live and let live. After-care facilities must be integrated into the penal programme. Prisons’ roles have thus evolved over time, and they are no longer viewed solely as custodial institutions The focus has moved from incarceration to training; from limitation to re-education; and from discipline to reform and recovery. The retributive theory of justice is giving way to the reformative theory of justice. The need for open prison and correctional institutions was acknowledged and widely debated at the first United Nations Congress on the Prevention of Crime and the Treatment of Offenders, convened in Geneva in 1955. (UNODC 2010).Item 4 of List II of Schedule VII of the Constitution of India specifies that the administration of prisons in India is a state subject. This specifies that the prison system is a state subject. Because the rule of law dominates the nation, the prison system, along with the other components of the Criminal Justice System, operates within the constitutionally mandated legal parameters. Following a period of review that lasted for a total of five years, the United Nations General Assembly finally approved the United Nations Standard Minimum Rules for the Treatment of Prisoners (also known as “the Mandela Rules”) on December 17, 2015. In recognition of Nelson Mandela, who served as President of South Africa from 1994 to 1999, they are commonly referred to as the Mandela Rules. The Mandela Rules are a collection of 122 rules that are accompanied with guiding principles such as the philosophy of confinement and institutional equality.
The Standard minimal Rules for the Treatment of Prisoners (SMR) are the minimal standards that are recognised and accepted internationally for the way in which prisoners should be treated. Despite the fact that these guidelines are not legally obligatory, they have served as the foundation for legislation. Additionally, it acts as the manual for the jail system. They also serve as standards for international law and domestic law for citizens who are kept in jails and other types of custody in their respective countries. The SMR is based on the premise that “There shall be no discrimination on grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” This principle states that “there shall be no discrimination on grounds of race, colour, sex, language, religion, political or other opinion.” The Mandela Rules established the minimal criteria that should be followed in prisons to ensure that inmates are treated with the dignity they deserve.
In the 1996 case Rama Murthy v. State of Karnataka, the Supreme Court also argued for the need for open prions. The supreme court had ordered the establishment of “more and more open prisons” beginning with the country’s district headquarters. The court also made note of the administrative difficulties that will accompany open jails. are not insurmountable when weighed against the greater benefit that these Jails can provide.
In two of its annual reports from 1994-1995 and 2000-2001, the National Human Rights Commission (NHRC) argued for the necessity of open prisons and how they can alleviate prisoner congestion. In 1980, the All India Committee on Jail Reforms recommended that each state and union territory establish Open Jails.
The status quo requires some necessary changes:
- The number of open prisons, as well as improved utilisation of the facilities that are already in place, will be accomplished by making regulation changes and easing up on the stringent qualifying requirements.
- It is important that efforts be made to include the topic of prisoners to the agenda of the union meeting. Because of this, consistent changes will be implemented, and all of the inmates will be given equivalent rights.
- In order to ensure that the process of selecting candidates is transparent and accountable, the state committee in charge of the selection should be required to justify its decisions to the Chief Minister of the state in question. The right to information (RTI) should be expanded to include these records, and they should be made public so that average citizens may read them.
- Promotion of the Semi-open Jail In order to give rehabilitation to mentally ill inmates, it is important to encourage the use of semi-open jails. They do not provide total freedom, but there are no cells, and inmates are given the opportunity to work inside the confines of the Jail complex. The Tihar Semi-Open Jail in Delhi is widely considered to be among the top semi-open prisons in all of India.
- It should be within the power of the Supreme Court or the pertinent High courts to decide whether or not it is appropriate for certain inmates to be sent straight to open prisons.
- Every prisoner, regardless of whether they are held in an open or closed facility, need to be made aware of his or her rights and ought to be told about the selection process for open facilities. This will not only provide the inmates with the necessary knowledge, but it will also encourage good behaviour among these inmates.
Consequently, open jails serve as a sort of rehabilitation for convicts and provide them the chance to improve themselves as humans. As a result of the fact that deterrence alone is not sufficient to make a society moral, the goal of legal systems should emphasise reformation in addition to deterrence. The convicted offender is aware of the wrong he has done and should be given the opportunity to make amends for his actions. In order for them to become more productive members of society who have improved themselves. Despite this, those convicted of significant offences should not be released into open prisons because it is critical to send a message to society that serious offences will not be tolerated and that those who commit them will be held accountable for serious repercussions.
Inmates in an open-air prison are shielded from the psychological pressure that enclosed institutions typically impart. The majority of open-air prisons have minimal security measures. Second, in an open institution, routine and daily life are less regimented. This affords the inmates an opportunity to reassert their human-social status and autonomy, whether directly or indirectly. Thirdly, open-air prisons are work-based institutions; therefore, offenders utilise their time productively and engage in meaningful labour. This not only breaks the monotony, but also gives them a sense of accomplishment. Fourthly, the detainees of an open-air penitentiary generate useful income for themselves, their families, and their dependents. Fifthly, the participation of offenders in productive work would result in the development of a positive attitude towards work and honest living, which would greatly facilitate their economic and social rehabilitation after their release from imprisonment. Last but not least, detainees of open-institution prisons have access to liberal mulakat or interview, remission, provisional release, and pre-mature release programmes. This has the effect of humanising them. It is evident from the preceding analysis that open-air prisons are a good idea and may contribute significantly to the rehabilitation of prisoners after their release. Due to apathy on the part of State Governments and penal administrations across the nation, the programme was unable to get off the ground in the correct fashion. It appears that a lack of initiative and a dread of failure are the primary factors for the declining population of open institutions. Probably, Indian society is not prepared to embrace the new approach to the rehabilitation and correction of criminals. Time will be required. However, the concept requires maintenance. Governments should also give this aspect of human resource development the attention it deserves.
Succinctly, it can be said that, a comprehensive understanding of a country can only be attained by spending times in its prisons. The evaluation of a nation should not be based on its treatment of the most privileged members of society, but rather on its treatment of the most marginalised individuals.
(The author Meenu Padha is an Advocate of J&K High Court; Tavleen Kaur is a student of BA LLB Criminal Law (Hons). They can be contacted on