Murali Karnam 
Recently, the Supreme Court, while hearing a case regarding prisoners’ welfare, said that more open prisons could be a solution to the problems of overcrowding and rehabilitation. In 1997 in Shri Rama Murthy vs State of Karnataka and in 2018, in Re Inhuman conditions in 1382 prisons, the superior court exhorted the government to open more such prisons. What is their potential to solve the problems referred to?
In 2022, I studied the efficaciousness of open prisons as rehabilitative institutions across India. Covering 43 such prisons, in Rajasthan, Kerala, Madhya Pradesh, Himachal Pradesh, West Bengal, Assam and Maharashtra, we have interviewed 458 prisoners and a large number of correctional staff.
They hold only the sentenced
Seventeen Indian states have 88 open prisons. They exclusively house the prisoners sentenced for long term. They constitute 6% of all categories of penal institutions. Rajasthan has 50% of them but 10 states have one prison each. While Rajasthan’s prisons are both spatially and conceptually open, the rest are namesake. They together accommodate 5% of the country’s convicts. Overcrowding is not associated with these prisons but closed prisons with undertrials. They have no role to address the problem.
Flawed perspective
The research found that 36% of the capacity of these prisons is being utilised. While Punjab and Rajasthan use 89% and 71.2% of their capacities, Assam and Himachal Pradesh use only 21% and 7.5%, respectively. The deterrent prison rules prevent them from accommodating more prisoners from the closed prisons. Like the closed prisons, these too are designed based on the gravity of offences, severity of punishments and gender discrimination and hence are neither reformative nor rehabilitative. While Kerala liberally transfers them to open prisons after three years of punishment, other states incarcerate them for 11 to 12 years in closed prisons before releasing them into open prisons. While Rajasthan accommodates female offenders too in these prisons, their counterparts in Kerala and Maharashtra are hardly open even spatially.
The stringent criteria for entry into open prisons forestall the prospects of learning employability skills. Having wasted their productive years in closed prisons, they find it difficult to rebuild their lives in these prisons. The retributive lens looks at their productive age as the potential for offences but not for their rehabilitative prospects. This punitive lens informs all the rules and practices of all categories of prisons, including so-called open prisons.
Most are first-time offenders
The research reveals that 95% of the prisoners in them are first-time offenders, albeit in grave offences. Only 4.7% of them are recidivists, corroborated by the data of the National Crime Records Bureau (NCRB) for 2021. The study reveals that 39.4% of them could secure bails within reasonable time. While 45% of male prisoners secured bail, only 23% of female prisoners got it.
Kerala and Assam seem to be liberal in granting bail, but other states are not generous enough. For example, most offenders in grave crimes continue as undertrials for seven to nine years in Rajasthan. Several court practices – valid or not – of refusing to grant bail exist, but their consequences for prisoners’ lives are grave. As undertrials, they have no right to education and work. Neither do the prisons have capacity or willingness to provide these avenues. Learning skills and earning livelihoods are beyond their reach. Adjournment after adjournment marks their lives.
Many times, they depend on their families for survival. The judiciary must acknowledge its own share of accountability for this situation.
Is education in prisons rehabilitative?
If education teaches skills for individuals to achieve autonomy, it must be more so for prisoners given their socio-economic profiles. The current study reveals that 80% of prisoners have no chance to educate themselves. Just 20% of them have dabbled with learning alphabets. As their soft skills stagnate inside the prison for decades, society moves ahead. Prisons teach them unproductive discipline and obedience.
Vocational training
Modern labour transformed the rigorous imprisonment from ‘hard work’ to ‘working hard’. Yet our prisons impart no modern skills to make them autonomous individuals. The study reveals that on average, 37% of prisoners are trained in crude labour. While West Bengal trained 5% of its convicts, it was 6% in Assam, 10% each in Madhya Pradesh and Maharashtra, 28% in Himachal Pradesh, 93% in Rajasthan and 100% in Kerala. Though 29% of the released persons said they were trained in some vocational skills, only 4% of them learnt some skill that helped them find work.
We cannot but conclude that the marketability of the skills taught is almost nil. A majority of them go back to worse sources of livelihood after their release. The redundant skills taught like phenyl making, carpentry and bread and chalk piece making disempowers them. Their illiteracy, caste and class largely seem to determine the nature of skills imparted. After all, Macaulay had dismissed skill training as incentivising the criminals. He still haunts the policy makers of penal institutions, frequent reiteration of reformative goals notwithstanding.
Discriminatory parole practice
The study reveals that 91% of prisoners have got parole more than once. Availing parole and surrender are a condition precedent to enter open prisons. However, the study reveals that male prisoners get parole more easily and frequently than female prisoners do. Female prisoners in offences against their families find it difficult to get paroles. Abandoned and uncared for, they are cut off longer from society. Kerala has a simple and shortened parole process of granting 75 days in a year. Madhya Pradesh also has an equally liberal parole policy, allowing prisoners to go home thrice a year. It is more complicated in other states, where accused remain as undertrials for a longer time. Their conditions are worse than the convicted prisoners with parole. Rajasthan’s permanent parole works better for life convicts as it releases them after 14 years of substantial sentence. However, in all open prisons longer incarcerations are a norm rather than an exception.
Living with families
Rajasthan, Madhya Pradesh and Himachal Pradesh allow prisoners to find employment in the open market. Rajasthan even allows its female offenders to live with their families, but other state don’t. Their chances of reunion with their communities are better than in Kerala. The latter too deprives 17 years of their freedom and does not permit them to work in the open market. Its prisoners say that their survival chances are bleak after their release. Bengal is even worse. It reincarcerates them for longer than 20 years.
Premature release
The rules for prisoners’ premature release, favour to politically involved offenders notwithstanding, have been increasingly stringent over the past two decades. Telangana used to release them after 10 years of punishment, while Rajasthan after 14 years, Kerala and Bengal after 20 years. More categories of offenders have been exempted from such releases. Many states do not release those who come under 433-A of CrPC [which restricts the powers of remission and commutation in certain cases] even after 20 years of incarceration. Around 20,000 offenders against children and women and under the NDPS Act have not been considered for release for years. As the gravity of their crime disqualifies them, their reformation becomes redundant.
Open prisons are a conceptual oxymoron. Most of them are not even open, but still prisons. Punishments and their subsequent consequences have to be reimagined first to solve the problems that plague the prisons. Today, imprisonment is an end in itself. As Upendra Baxi put it once, we cannot any longer think about open prisons with closed minds. So, one must ask: does the sentencing restore or alienate the relationship of trust between estranged citizens and society?
Murali Karnam teaches at NALSAR University of Law, Hyderabad.