‘Spaces of opportunity, not suffering’: Why Supreme Court has ordered massive expansion of open prisons across India

Open prisons have relatively less stringent rules compared to controlled jails. They are also referred to as minimum-security prisons, open-air camps or prisons without bars. They have minimal security and function on the basis of the self-discipline of inmates.

A persistent failure to meaningfully adopt and expand one of the most effective solutions to prison overcrowding and the reformative theory of punishment reflects a troubling disconnect between constitutional mandate and executive action, the court noted. It added that the situation in several states and Union Territories (UTs) continues to be marked by “rank apathy and indifference”.

Justices Vikram Nath and Sandeep Mehta noted that the transformation of prisons is integral to the promise of justice.

Court’s directions

• Arunachal Pradesh, Chhattisgarh, Goa, Haryana, Jharkhand, Manipur, Mizoram, Nagaland, Sikkim, and Telangana – which presently do not have functioning OCIs – shall initially assess the feasibility and necessity for establishing the same in their jurisdictions.
• After the assessment, they shall develop a protocol for the establishment of OCIs and/or open and semi-open barracks.
• The protocol shall, among other things, address issues relating to land allocation, extent of land, infrastructure development, construction, staffing, security arrangements, and operational modalities.
• Where the establishment of standalone OCIs is found to be valid, the concerned states shall be duty-bound to create open and/or semi-open barracks within existing closed prisons to ensure that prisoners are not denied access to reformative correctional facilities.
• The protocol shall be placed before the monitoring committee constituted in each state under ‘Direction F’ (of this order) within a period of three months from the date of this judgment.

• Noting that almost all states, as well as the National Capital Territory (NCT) of Delhi, have reported substantial underutilisation of existing OCI facilities and open barracks within closed prisons, each state and the NCT should develop a time-bound protocol for filling up existing vacancies in OCIs and open barracks.
• Submit the protocol before the monitoring committee constituted in each state and Union Territory within three months.
• Ensure that the identified vacancies are filled within a further period of two months thereafter, subject to eligibility and security considerations.
• The compliance report shall be placed before the monitoring committee within one month thereafter.
• Union Territories lacking OCI facilities shall examine the feasibility of establishing them or evolve a mechanism for transferring eligible prisoners to appropriate and proximate OCIs in neighbouring states.
• In any event, and irrespective of the feasibility of establishing standalone OCIs, the Union Territory government shall be duty-bound to create open and/or semi-open barracks within existing closed prisons situated within its jurisdiction, wherever feasible, to provide access to reformative correctional facilities to eligible prisoners.
• A status report in this regard shall be submitted before the monitoring committee within three months.
• The monitoring committee shall be duty-bound to oversee, facilitate, and ensure the effective, and timely implementation of the protocols framed by the states and UTs.

Under-representation of women prisoners

• All states and UTs shall develop a protocol for restructuring existing OCIs and/or open barracks to allocate adequate capacity for women prisoners. The protocol shall be submitted before the monitoring committee within three months from the date of this judgment.
• Where OCIs are already integrated, and women are legally permitted to be housed in OCIs or open barracks, the concerned states/UT shall submit it before the monitoring committee within one month.
• A protocol for the identification and timely transfer of eligible women prisoners, and for filling up existing vacancies should be earmarked for women.
• Security concerns shall generally not be made a ground to deny women prisoners access to OCI facilities and open barracks.
• Evolve gender-sensitive and security-conscious mechanisms to facilitate such access, consistent with Articles 14 (Equality before Law), 15 (Right against Discrimination), and 21 (Right to Life and Liberty) of the Constitution.
• Within three months from the date of this judgment, review and amend as necessary any existing rules, notifications, or executive instructions governing OCIs and open barracks that directly or indirectly exclude women prisoners from transfer eligibility.
• Place a compliance report on the same before the monitoring committee within one month.

Eligibility criteria, rehabilitative avenues

• All states and UTs shall revisit and rationalise eligibility criteria for the transfer of prisoners from closed prisons to OCIs.
• Ensure that such criteria are based primarily on the nature and classification of offences, and demonstrated reformative potential.
• Institutional conduct and readiness for social reintegration must be considered, rather than rigid or unduly long periods of incarceration in closed prisons.
• Individualised assessments shall be undertaken through transparent and reasoned procedure, with recorded justification for acceptance or rejection.
• Adopt best practices from states like Maharashtra, Kerala, and Rajasthan, where OCIs have demonstrated effective rehabilitative outcomes, including models of community-based employment, family integration, and diversified vocational training.
• Develop, implement, and periodically update structured skill augmentation, vocational training, apprenticeship, and certification programmes, aligned with contemporary employment opportunities.

Shift towards OCIs

• While hearing the matter in May 2024, the court observed that one of the viable and sustainable measures for addressing the problem of overcrowding in prisons would be the establishment of open prisons/camps, which would simultaneously serve the objective of rehabilitation and reintegration of prisoners into society.
• The court appointed K Parameshwar as amicus curiae, in addition to senior advocate Vijay Hansaria, who was already assisting the court.
• The court noted that, as far back as 2018, in the matter of In Re: Inhuman Conditions in 1382 Prisons, it had directed states and UTs to align their rules with the Model Uniform Rules for the administration of open correctional institutions.

• The court draws inspiration from the Rajasthan Model, where data showed that open prisons are not only more reformative but also fiscally prudent.
• For instance, the per-prisoner daily expenditure in a closed prison in Rajasthan is approximately Rs 333.12, whereas in an open prison, it is only Rs 49.60.
• This stark cost differential, combined with the successful social reintegration of inmates, provided the evidentiary foundation for the court’s mandate to make OCIs an integral component of the Indian criminal justice system.

Background

• The petition was instituted under Article 32 (right to constitutional remedies) in 2020.
• At its inception, the petitioner raised grave concerns regarding the persistent problem of overcrowding in Indian prisons.
• The plea argued that populations far exceeding sanctioned capacities resulted in inhuman and degrading living conditions, thereby infringing upon the fundamental rights of inmates under Article 21.
• Initially, the reliefs sought were focused on immediate decongestion measures and the creation of permanent mechanisms to monitor prison occupancy, particularly in the backdrop of public health emergencies like COVID-19.
• The case was initially heard alongside the suo motu matter in relation to the spread of the COVID-19 virus in prison before being de-tagged in July 2023 to be considered on its own merits.