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Indian Journal of Law and Legal Research Volume II Issue II ISSN: 2582 8878

OPEN AIR PRISON: A BLESSING TO PRISONERS?

Tanmay Sharma, Symbiosis Law School, Nagpur

ABSTRACT

This research paper is about a topic which is being practiced in India from very
long time but not many people know about it or not even heard about its name.
open air prison is a concept of different type of prison for those criminals who are
about to complete their imprisonment, and they are mentally and physically not
compatible to mix up with open world so as to do so, those inmates who have a
continuous good behavior and had maintained decorum in their imprisonment.
The research paper covered various aspects of open air prison, its positive as well
as its negative part. What kind of prisoners are allowed in open air prison, how
the selection process goes.

One very common aspect of a prisoner is to escape the prison, so the answer is
given in detailed that can a prisoner who have history of escaping prison, apply
for transfer in open air prison.

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Indian Journal of Law and Legal Research Volume II Issue II ISSN: 2582 8878

If a person has committed a crime and it is proved in the court of law, then it is very obvious
that mens rea is present. So is it safe to put a person in an open jail who has committed a serious
offence with imprisonment more than 10 years? The life inside a jail is completely different
from that of outside. The environment inside jail is negative and depressing. As there are two
faces of coin, there are two kinds of prisoners one who has realization of the offence he had
committed. Another is the prisoner who has a mentality to repeat the offence and this mentality
comes from the anger and frustration growing in a closed jails. Every person deserves to rectify
their mistake. And for a prisoner to do that is to support his family whether it is financially or
emotionally. Many prisoners belong from a poor family background. In an open jail they can
do various things to support their family. A person sitting whole day behind the bars is not a
very genius way to consume manpower. In an open air prison, prisoners have to find jobs. They
get per month salary like any other citizen.

The current condition of closed jails in India is not great. The conditions of prisons in India has
been severely criticized. There have many cases of

. Custodial violence

. Custodial deaths

. Suicides, and

" Overcrowding etc. in Indian jails.

As per the NCRB's 2015 data:

1. 77 deaths were caused due to custodial suicide, and

2. 11 deaths due to custodial murders which shows the poor administration and structure
of Indian Prison system.

3. The Supreme Court has time and again given directions on Prison Reforms, in many
cases, the Supreme Court has actively endorsed the Open Jail system.

4. The basis on which the selection of these prisoners is done

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Indian Journal of Law and Legal Research Volume II Issue II ISSN: 2582 8878

One of the best example of open air prison is in sanganer, an area in the capital city of state of
Rajasthan. That open air prison is home for 400 prisoners, there is no bar, no security guards at
gate. Even the prisoners are encouraged to go out and work in the city. All prisoners have to
serve at least two third of their sentences in closed prison to get to sanganer. When asked from
the prisoners they said that compared to those places, this is freedom. In fact, the government
of Rajasthan had to direct prisoners to leave the open air prison as their sentence is completed
but they didn't give up as they had set up their lives, stable jobs, schools for their children in
nearby area. Sanganer is an open air prison which doesn't seems like one, it looks like a normal
area where families live except the evening time when the police officials come and roll calls
every prisoners. That time you can guess that it is a jail!!!!

Is everything about open air prison is good and positive?

Well no, there are negatives of an open air prison too

1. One of the flaw of open air prison is that the selection or approval of application of
prisoners is approved by a committee which has no liability to justify their selection so
there is pretty much chances of dishonesty, partiality and corruption
2. There is no provision for fresh prisoners whose sentence has just began also there is no
provision for under trial prisoners.
3. There is very uneven distribution of open air prison in every state. Some states are
concentrated with the number of open air prison while some have only one, also no
union territory have open air prison.
4. The rules and regulations for selection and administration of open air prison is very old
thus it is not very suitable in present situation.
5. Coming to the biggest negative of open air prison is that India has very underutilized.
As of 2015 these prisons have capacity to accommodate 25,776 prisoners however, only
3,786 prisoners are currently in these prisons. This shows that despite the heavy
overcrowding in the closed prison, open air prisons are vacant.

If a person has done any criminal offence or a criminal act then the possibility to repeat the
spectrum is more than a normal citizen. A person who is in Parole after completion of the period
mentioned in the parole he did not show up and escape and didn't surrender to jail authority, is
showing absconding act. Another concern is the question of an criminal act or offence then the
offence is clearly based on two parameters, an act and mens rea. If the prisoner didn't surrender

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Indian Journal of Law and Legal Research Volume II Issue II ISSN: 2582 8878

in jail after the completion of his call then it clearly defines that the act is not legal and mens
rea is present.

It should be noted that rule 2 of parole rules of 1958 defines Parole as conditioned enlargement
of prisoner from jail. 2 Where rule 12 of rules of 1958 specifically provide the period for which
original stays on Parole under rule 9 without violating the conditions laid down for a purpose
shall be treated as impressment solved and all other kinds of parallel shall be treated as sentence
suspended.

Most of the open air prison in India is in Maharashtra and Rajasthan alone. In Maharashtra the
prisoners usually allowed to do agriculture and prisoners of Rajasthan work in factories and
industries.

Coming to the conclusion, the concept of open air prison is exercising in India from past 7to 8
decade and still most of the states don't have any open air prison. Maharashtra and Rajasthan
are the two states which covers more than 50 percent of total open air prison in India. With the
current situation of overcrowding in jails of India the concept of open air prison is the best to
avoid the consequences of overcrowding in jail and to provide rehabilitation justice. The main
motive is that to let the prisoners socialize with the normal outside world before their sentence
ends. Although the history of open air prison in India is pretty good as there are not such cases
of any prisoner escaped or trying to escape from open air prison but still there is need to amend
rules and law for best management of the system.

Should A Prisoner Be Allowed To Shift In a Open Air Prison Who Has a History Of
Escaping From Prison or Absconding At the Expiry of His Parole?

Parole is a privilege for prisoners who seems capable of reintegrating into society. It should be
clear that it is no a right. Although some statues defines a right to have a parole hearing. A
board personally examines the prisoner, whether he is not dangerous that after granting parole
he never show up and become a disturbing element in the peace of the society. If a prisoner
gets approval of his parole then he can live in the society like a normal citizen but under
continued supervision for a specific period of days, that may be 7, 15, 21 or more days.

But what happens when a prisoner did't show up after the expiry of his parole? Well a divisional
bench of justice ranjit more and justice VL achliya said that parolee is in legal custody and his

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Indian Journal of Law and Legal Research Volume II Issue II ISSN: 2582 8878

non surrender to the prison authorities after the expiry of the parole period amounts to escaping
from the legal custody within the meaning of section 224.

Similarly in the case of azam butt the high court said that butts (prisoner) conduct of not
surrendering on time after the expiry of parole leave period amounted to escape.

On the other hand open air prison is for that kind of prisoners who maintain decorum and
remains sincere in jail. Through open air prison they got a chance to live life like a normal
citizen in a normal and civilized manner.

The question arises that is it okay to transfer a prisoner to open air prison who had tried to
escape from jail or didn't show up on the date of termination of his parole?

The simple logic behind this question is that if a person is in confinement for a long period of
time, eventually it signifies that he has done some grievous offence. A person who has done a
grievous offence and is given a parole in that too he tries to escape the jail by not showing up
at the end of his parole period, then this seems not logical to transfer him to open air prison.
Mens rea is executing twice in his acts then no one can assure that it won't happen again. Also
according to the rules, regulations and mandatory norms that a prisoner must fulfill before
applying for transfer to open air prison, the basic principle is that the prisoner must have a good
conduct and had maintained good decorum inside the prison.

Escape from prison and not showing up on the end of parole is self-explanatory. It defines the
state of mind of any prisoner. Putting a prisoner in an open air prison is a big step to be taken
by authorities. As in open air prison prisoners are free to go anywhere. They can do whatever
they want. They go to work with normal citizens and it is not a safe decision to release a prisoner
in public who has a history of escape from jail or from parole.

So which prisoner can apply for open air prison?

Indian jails are overcrowded so there are rules that should apply to every prisoner who want to
apply for open air prison.

The principle rule is that

1. Inmate should be a convict,

2. Had good conduct in prison and
3. Had spent at least 5 years in closed controlled jail.

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Indian Journal of Law and Legal Research Volume II Issue II ISSN: 2582 8878

4. He should not fall within the categories specified in rule 3.

5. He has been regularly performing his scheduled task in jail factory.
6. He has served on third term of his substantive sentence including remission.

These are the rules followed by the Rajasthan open prisons. The Rajasthan open prison do not
take in under trial prisoners. All India jail committee also suggested that life convicts who offer
good prognosis should be transfers to semi open and open jail.

The act specifically mentioned about the eligibility for admission in open air prison to any
prisoner However, there is a long list of the ineligibility criteria, of which some are completely
arbitrary for e.g.

. Women prisoners

. Convicts of narcotics

. Prisoners with any history of mental illness

. Professional murderers

. Convicts of crimes like:

. Collection of arms

. Sedition

. Crimes against the army etc.

This provision eliminates the possibility of rehabilitation of a large number of convicts, who
are actually in need of it and offers rehabilitation to those are who are not in dire need of it.
However, the committee can consider certain special cases even if they're ineligible.

This is true that every person should be given a chance to rectify his mistakes but can you still
say that is mistake if it is repeated twice? Well, no!!! The basic concept of parole is that the
prisoner is ready to be reintegrating in the society with normal people. The whole concept of
parole is stuck down for a prisoner who tries to escape from parole or did anything that destroy
his good conduct in prison. The prisoners are strictly directed to be present every evening for
their daily attendance, now it is not expected from a prisoner to come back to open air prison
who has a history of escape from jail.

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Indian Journal of Law and Legal Research Volume II Issue II ISSN: 2582 8878

Clause ©of rule 3 of the rules of 1972, puts restrictions on release of a prisoner, who escapes
from jail or has attempted to escape from lawful custody. When a prisoner on being granted
parole or furlough is released for, actual custody of the jail authorities, he remains in legal
custody of the state and failure to surrender to the prison authorities after the expiry of the
parole period, amounts to escape from the lawful custody. Now if a prisoner already managed
to escape from his parole what is the probability that he won't escape from an open air prison?
The answer is very obvious, VERY HIGH.

A physiological survey shows that 66% of those in the US set free after serving a prison
sentence will be rearrested within three years. That figure is close to 60% in the UK, raising to
70% for those who have at least two previous sentences, studies in Canada show that those who
drive under alcohol, 30% of them repeat their offence. It is self-analyzed that this figure is not
less but even more in India then other nations.

Concluding the scenario, approving the application of a prisoner to open air prison is a big and
very risky decision already and to allow a prisoner with history of escape from parole in open
air prison may act as fuel to fire. Although completely disapproving the fact to allow such
prisoner is not justified, the decision may vary from person to person. Completely stuck down
the rule is not a justice to those prisoners who want to live a normal life and want to rectify
their mistake but with that it should also kept in mind the tendency of prisoner to repeat the
offence is not low too.