International Journal of Humanities and Social Science Invention ISSN (Online): 2319 7722, ISSN (Print): 2319 7714

14 www.ijhssi.org Volume 2 Issue 11 November. 2013 PP.73-77

Open Prisons, Their Working and Utility as Institutions of Reformation and Rehabilitation
Anju Sinha
1

,Assistant professor Campus Law Centre Law Faculty, University Of Delhi

ABSTRACT : Prisons have come to occupy the central place in the administration of Justice all over the
world. The prison system has come a long way from the concept of jails (which were the dens of lechery, debauchery and moral corruption) to the modern prisons; a place full with all sorts of intramural treatment meant ultimately for rehabilitation of offenders. The prison system as it operates today in India is a legacy of the British rule. It facilitated the abolition of our antediluvian system of barbarous punishments and substitution of imprisonment as a chief form of punishment for the commission of crimes. The emergence of open prisons marks the beginning of a new phase in the history of the prisons. The first scientific effort to modernize prisons in India was made by Sir Walter Reckless; he submitted an excellent report on prison administration in India.The observations of criminologists, sociologists and persons engaged in prison administration reveals one common observation that state of affairs in the prison is against the scope of reformation of prisoners because after release from the prisons the convicts have to return to the society and then begins the real problem and here comes the importance and requirement of open prisons. A huge number of convicts of under trial prisoners released from the prison every year and therefore object of prison laws and administration should be reform oriented to reduce recidivism. Open prison serves a dual purpose of eliminating criminals from society and reformation of offenders under institutional treatment by blanketing out conditions which in the first place turned them to law violators. It has undoubtedly open a new vista in the realm of correctional treatment, promising an offender greater freedom, natural surrounding and lesser tension which culminate in creating atmosphere more conducive to reform himself and to achieve social, moral and economic rehabilitation in the society. The best thing about the open prison is that it is an antid ote to what is known as prisonization of the convict. In simple words the ill effects of institutionalisation and criminalisation denoting two components of prisonization get liquidated. Thus correctional facility under the umbrella of open prison is very effective for the realisation of rehabilitative or correctional ideology without unnecessary from confinement in a prison surrounded by high walls. Open prison is more favourable to the social adjustment of the prisoners and at the same time more conducive to their physical and mental health. The conditions of life in open prison resemble more closely to normal life and consequently desirable contacts can be arranged with outside world whereby the inmates be brought to realise that he has not severed all links from the society. By this open prison helps the prisoners to augment his confidence and create in the mind of prisoners a genuine desire for social readjustment.

I.

INTRODUCTION

Historically, prisons have always been places in which criminals could be securely confined and this containment function has continued to predominate in spite of the gradual emergence of other aims for imprisonment, such as deterrence or rehabilitation. Containment here means not only the prisoners must be kept out of circulation, but also that their deviations, even within the prisons, must not be on such a scale as to disturb the peace of mind of the man in the street.The louder rhetoric that prisons reform and rehabilitation is far more unconvincing than the conventional belief that prisons corrupt and criminalise their inmates. The penological literature bears immense testimony to this belief and has ample evidence to demonstrate the ill effect of prison incarceration on the personality of its victims or beneficiaries. Looking in retrospect we find that what Frank Tennenbaun wrote many years before is still very much true. He had reasons to believe that the institutional experience is a concentration of stimuli adapted to develop delinquent interests. He went to the extent of even suggesting that we must destroy prisons root and branch. There may be some element of exaggeration in the statements, but the fact remains undisputed is that prisons, by and large, ill serve as corrective and reformative institutions. Punishment alone has not provided satisfactory results. To be effective, control must be accompanied by treatment and rehabilitation so that when the prisoner is released he is less apt to commit another crime than when he went to custody. Punishment and control should not be used primarily as a managerial device to make it easier to manipulate prisoners in ways that minimize administrative problems. On the contrary, the purpose of punishment should be to correct the motivations of the inmates criminal conduct.

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Open Prisons, Their Working And Utility...

Prisons have come to occupy the central place in the administration of Justice all over the world. The prison system has come a long way from the concept of jails (which were the dens of lechery, debauchery and moral corruption) to the modern prisons; a place full with all sorts of intramural treatment meant ultimately for rehabilitation of offenders. Getting off to a slow start in the sixteenth century imprisonment as a form of punishment became a major form of punishment of the nineteenth century. Let us analyse that how the principles and purposes of prison administration have evolved from the ancient to present day India . ANCIENT INDIA The penology has its roots in ancient India. It developed under the connotation of dandaniti which literally means principles of punishment. Manu, the great law giver, emphasised that danda was created as a derivative of dharma. In ancient India justice was administered in accordance with legal rules which fell under any of the following headsiSacred Law ii-Secular Law iiCustom iv-Royal Commands

Sacred law is embodiment of truth, secular law depends upon evidence, custom is decided by the opinion of people and royal commands constitute administrative law Of all these four customs were accepted as most popular and essential principle in administration of justice. But whatever be the legal rule for administration of justice, the king in ancient India society was the foundation of justice and punishment of offenders was considered to be his sacred duty and because of this reason the king in those days was called Dandadhara ,the holder of danda, i.e. ,the power of punishment or an incarnation of the Yama, the judge of the souls of the dead. It was then strongly felt that punishment protects mankind and keep watch when mankind sleep. The whole world is held in order by means of punishment, for a faultless man is very rare; even the gods and demigods are driven to perform their duty by fear of punishment . Off all the ancient punishments, the punishment by imprisonment was very uncommon and in the ancient works, this type of punishment is rather rarely mentioned. It simply implies that the principle purpose of prison administration in ancient India was the detention of offenders awaiting trial or execution of sentence and to deter others from committing crime by exposing the prisoners to public gaze. MUGHAL INDIA Under the judicial system of mughals, Quranic law was the only law recognized in the country which provided brutal punishments for crimes. The punishment for crimes were of four classesi-Hadd ii-Tazir iii-Quisas iv-Tashir

During the Mughal rule in India punishment by imprisonment was not as uncommon as in ancient India. However, it was not as widely used as in British India. It was Abdul Fazal, one of the learned ministers of Akbar who gave an interpretation that Muslim rulers could award imprisonment to offenders. There were two kinds of prisons, one for prisoners of high rank and the other for ordinary criminals. Besides regular prisoners, under trials were also kept confined in jail. Thus, in Muslim India since prisons were used both for detention and punishment of offenders the purpose of prison administration was not merely to keep the accused persons under safe custody but also to administer prisons as a means for punishing convicted criminals. BRITISH INDIA The prison system as it operates today in India is a legacy of the British rule. It facilitated the abolition of our antediluvian system of barbarous punishments and substitution of imprisonment as a chief form of punishment for the commission of crimes. For the first time Lord Macaulay, a member of Indian Law Commission initiated prison reforms in 1835 by setting up Prison Discipline Committee, whose recommendations led to the adoption of the Indian Prison Act, 1894, which regulated the present prison system in our country. A number of prison reforms made during 18 th and 19th century. On the basis of recommendations of All India Jail Committee 1919 and Government of India Act, 1919, prison administration became the state subject. This resulted in passing of various jail manuals in various states. After the advent of freedom, a new phase of humanitarian prison administration has begun in India. Ideas regarding punishment and functions of prisons have been changing. A new awareness of the problem of crime and proper treatment of offenders has grown so much so that prison administration has off and on been subjected to severe criticism from the press, parliament and judiciary.

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Open Prisons, Their Working And Utility...

Overcrowding in prisons, prolonged detention of under trial prisoners, unsatisfactory living condition, lack of treatment programmes and allegations of indifferent and even inhuman approach of prison staff has repeatedly attracted the attention of the critics over the year. The emergence of open prisons marks the beginning of a new phase in the history of the prisons. The first scientific effort to modernize prisons in India was made by Sir Walter Reckless, he submitted an excellent report on prison administration in India. As a result All India Jail Committee appointed in 1956-57 made recommendations to set up open jails. The Government of India again appointed All India Jail Reform Committee, with Justice A.M.Mulla as its chairman which recommended to have national policy on prisons.Thereafter, in 1987, the National Expert Committee On Women Prisoners headed by Justice Krishna Iyer was appointed. The report categorically stated that conditions in prisons have not in any way changed since 1983.It has recommended induction of more women in the police force in view of their special role in tackling women and child offenders. Later on following Supreme Court direction a committee was set up in the Bureau of Police Research and Development to bring about uniformity in prison laws and prepare a draft model prison manual. The All India Committee On Jail Reforms(1980-1983) ,the Supreme Court of India and the Committee of Empowerment of Women(2001-2002) have all highlighted the need for a comprehensive revision of the prison laws but the pace of any change is disappointing. The Supreme Court of India has however expanded the horizons of prisoners rights jurisprudence through a series of judgements. The inventory of available research material on Indian prisons as compiled by The Central Bureau of Correctional Services nowhere reveals any study which is fully devoted towards prison community and the steps taken towards their rehabilitation and reformation. Very limited research has been carried out on institutions of open prisons in India. Further whatever has been done is mostly sociological in nature. Hence this attempt is to take up study both from social as well as legal point of view.

II.

OPEN PRISONS: SIGNIFICANCE OF

The observations of criminologists, sociologists and persons engaged in prison administration reveals one common observation that state of affairs in the prison is against the scope of reformation of prisoners because after release from the prisons the convicts have to return to the society and then begins the real problem and here comes the importance and requirement of open prisons. A huge number of convicts of undertrial prisoners released from the prison every year and therefore object of prison laws and administration should be reform oriented to reduce recidivism.In present time role of prison has considerably changed. Now the prisons are no more custodial institutions, but these are the places where prisoners are treated in a human manner and being educated so that they become more civilized and should realize their mistake and correct it. Though there have been few attempts in the area of rehabilitation ,reformation and reintegration of released male prisoners, still there exist a wide gap in existing knowledge in the area of rehabilitation of women prisoners. The problem related to the detention of women after arrest is a matter which requires consideration .This question was also examined by Law Commission in its report.The recommendation was that if there are no suitable arrangements in the locality for such detention, the women should be sent to an institute established under the Womens and Children Institutions (Licensing) Act, 1956.In 1989 again the Law Commission recommended that this should be done wherever practicable ,for such institutions may not exist in some areas. Without going much into the details of radical developments, like the concept of part-time imprisonment in Belgiumand in United States of America where the technique of part-time imprisonment was employed as early as 1913 under the Humber law, one of the feature of new prison philosophy is the emergence of open prison in many parts of the world including India. A pioneering effort in this area was the Witzwill establishment in Switzerland as far back as in 1891; similar development took place in U. S. A., U.K. shortly after that. However in actual practice open prison materialised in 1930 in U.K. and in 1940 in U.S.A., while in India it was as late as 1952 .The philosophy on the basis of which the open prison exists is reflected in the two dictums of Sir Alexander Paterson as follows: 1-A man is sent to prison as punishment and not for punishment 2-You cannot train a man for freedom under condition of captivity This philosophy led to the opening of first British open prison, New Hall Camp, as a satellite of Wakefield Prison .Here there were no walls and indeed not even a boundary fence The Americans also moved forward beginning at about the same time as Britain, with open farm camps associated with neighbouring closed prisons. Among the most famous American open prisons is the Californian Institution for men at Chino in Southern California, a Seagoville and an open federal prison in Texas.

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Open Prisons, Their Working And Utility... III. PHILOSOPHY OF OPEN PRISON/OBJECTIVES

Open prison serves a dual purpose of eliminating criminals from society and reformation of offenders under institutional treatment by blanketing out conditions which in the first place turned them to law violators. It has undoubtedly open a new vista in the realm of correctional treatment, promising an offender greater freedom, natural surrounding and lesser tension which culminate in creating atmosphere more conducive to reform himself and to achieve social, moral and economic rehabilitation in the society. The best thing about the open prison is that it is an antidote to what is known as prisonization of the convict. In simple words the ill effects of institutionalisation and criminalisation denoting two components of prisonization get liquidated. Due to excessive terrain and free movements the inmates psychologically feel relaxed and tension free which is a condition precedent for bringing an attitudinal change and making him receptive to rehabilitative techniques. The treatment of criminal by society is for the protection of society but since such treatment is directed to the criminal rather than to crime, its greater object should be his moral regeneration. Hence the supreme aim of correction is the reformation of criminals not the infliction of vindictive suffering. It is obvious that overcrowing in prisons itself result in deprivation of the available amenities to the prison inmates and promotes corruption in prison administration. It also has an adverse psychological impact on the inmates and accentuates the problem of maintenance of law and order within the prison.The inordinate delay in criminal trials is responsible for the large number of undertrials and is the cause of detention of many inmates in the closed prisons. To ensure better efforts and measure for protecting the rights and dignity of the prisoners and to facilitate the goal of their reformation and rehabilitation, more open prisons to be set up. Open air camps in Rajasthan have proved to be extremely successful and it is urgently required that such camps should be set up in all states with active support of civil society. IV. INTERNATIONAL PERSPECTIVE The idea of prison as a comprehensive method for reformation of the inmates was advanced in America and Europe under the influence of Montesquieu and Beccaria. The penal policy in post revolutionary America was revolved on the question how prisons could be organized to reduce the chance that the offender would repeat their criminal activity. This approach expressed a definite attitude towards human beings that they are modifiable for the better if given the proper opportunity. During the eighteenth century mainly two prison reformers, namely, John Howard and Jeremy Bentham shared both a revulsion against traditional punishment and expressed that institutions could be built that would rehabilitate criminals and prevent crime. During late eighteenth century many institutions attempted to test John Howards vision through practical trials. But these experiments failed in reshaping the prisoners. In spite of revived ideology of reformation of prisoners in the custodial institutions , in practice ,reforms and rehabilitation plans did not fulfil the expectation of those who thought to implement a system of individualised treatment. But after pioneering effort in this area, i.e., Witzwill establishment in Switzerland in 1891; internationally it was well accepted that, a person in prison does not become a non person, is entitled to all human rights within the limitation of imprisonment and there is no justification for aggravating the suffering already inherent in the process of incarceration. International Covenant on Civil and Political Rights is the core international treaty on the protection of the rights of prisoners. India ratified the Covenant in 1979 and is bound to incorporate its provision into domestic law and state practice. It provides that, all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of human person Apart from civil and political rights, economic and social human rights are set up in International Covenant on Economic, Social and Cultural Rights, which states that prisoners have a right to the highest attainable standard of physical and mental health. The United Nations Standard Minimum Rules for the Treatment of Prisoners, 1955, although not legally binding, provides guidelines of international and domestic law for prisoners and other persons in custody which are as follows: 1. 2. 3. 4. There shall be no discrimination on grounds of religion, race, colour, sex, and language, political or other opinion. Men and women should be detained in separate institutions. Due consideration should be given to the separation of different categories of prisoners. Separate residence should be provided for the young and child prisoners from adult prisoners. Universal Declaration of Human Rights, 1948 also provides that,no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. United Nation Rules for Treatment of Women Prisoners and Non Custodial Measures for Women Offender, emphasises the need to change the laws according to the needs of women prisoners because the rules adopted 50 years ago, did not, however, draw sufficient attention to womens particular needs. With the increase in the number of women prisoners worldwide, the need to bring more clarity to considerations that should apply to the treatment of women prisoners has acquired importance and urgency.

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Open Prisons, Their Working And Utility... V. OPEN PRISONS IN INDIA

In India under the inspiration of Dr. Sampoorna Nand a camp was opened in Chakia in Varanasi district of Uttar Pradesh in 1952 , the inmates were allowed to work on their own or in local factories and wages were paid to them. Dr Sampoorna Nand was a great social reformer, thinker and philosopher. The Chief Minister of U. P. Late Shri G. B. Pant, who inaugurated the camp, was so much moved by this scheme that he declared that all such camps to be established in future will be named as Sampoornanand(saubhik sen gupta) The open prisons exist in most of the states in India except in Union Territories. Till 1980 there were only 27 open prisons in India where as the existing position is that they are 44 in number and more than half of them exist in the State of Rajasthan (23 in number).Finally, the concept of an open prison for women, which was long overdue, has become a reality. The first open prison for women in India was established at Yerwada, Pune in 2010 and the first open prison for women in South India has been opened at Poojappura, Kerala in 2012.Selected women prisoners are shifted to these new prisons. Women prisoners here are allowed to roam the premises and farmland in related freedom. There are many jails throughout the country only for men, now the women prisoners may also be able to get the same benefits which their male counterparts are entitled to. The Jail Reform Committee expressed its satisfaction regarding open prison in India specially the Sanganar jail in Rajasthan where prisoners live with their families. The appreciation of open prison as an effective institution for rehabilitation of offenders have been highlighted by Supreme Court as late as 1979 in Dharambeer v State of U.P. the court observed that the institution of open prisons has certain advantages in the context of young offenders who could be protected from some of the well known vices to which they were subjected to in ordinary jails. The court therefore, directed the state government to despatch the two prisoners, in their early twenties, to one of the open prison in the state of U.P. without standing on technical rules, if substantially they fulfil the required condition.

VI.

CONCLUSION

While concluding I can say that the establishment and defects of prison are adverse to the process of reformation and rehabilitation. More so, mixing of prisoners, without any scientific classification leads to breading of more criminals rather than reforming them. It is well documented that 85% of the prisoners are those who live in the prison for a shorter period of time, i.e., from 15 days to 6 months. Further substantial number of short term prisoners is round up, those who are in and out of prison mostly. Hence, they suffer between two cultures (one outside the world and one of inside prison) and this results in to cultural conflict which itself is the basis for grievance. It was with this backdrop that open prison as an alternative to these ill effects came in to vogue. Modern criminology lays emphasis on rehabilitation of offenders, i.e., creation of a treatment policy which aims to resocialize the offender. The rehabilitation must come within the individual and not through coercion. In the course of open peno-institutional treatment the offender continues as a member of the correctional community so that he can develop within him the spirit of energetic, resourceful and organised citizen participation. Treatment of offenders in open condition similar to outside world as far as possible has found a wide acceptance in several countries and has proved to be a great contribution to the development of progressive penology and professional approach to treatment of offenders at the international level.In the open prison system, selected offenders (with least risk to recidivism) are placed under open air camps, with the reasonable degree of safety. Such a system seems to be advantageous economically and socially and ultimately is an exercise of providing opportunity for self development and resocialization. The emergence of open prison marks the beginning of a new phase in the history of prisons. The philosophy of open prison is based on two basic prepositions1-A man is sent to prison as a punishment not for punishment 2-A person cannot be trained for freedom unless conditions of captivity are relaxed and the gap between the institutional life and free life outside the prison is minimized to ensure the return of inmates as law abiding citizens.According to U.N. Congress on the Prevention of Crime and the Treatment of Offenders, An open prison is characterised by the absence of material or physical precautions against escape(walls, locks, bars, armed or spreared security guards),system based on self discipline and the inmates and by a sense of responsibility towards the group in which they livesThus correctional facility under the umbrella of open prison is very effective for the realisation of rehabilitative or correctional ideology without unnecessary from confinement in a prison surrounded by high walls. open prison is more favourable to the social adjustment of the prisoners and at the same time more conducive to their physical and mental health. The conditions of life in open prison resemble more closely to normal life and consequently desirable contacts can be arranged with outside world whereby the inmates be brought to realise that he has not severed all links from the society. By this open prison helps the prisoners to augment his confidence and create in the mind of prisoners a genuine desire for social readjustment.

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