After amnesty for undertrials, use open prisons to push reform

Govt’s decision to release undertrials who have served a third of their maximum possible sentence is a landmark for India’s criminal justice system. It’s in line with Bharatiya Nagarik Suraksha Sanhita’s focus on modernisation, decolonisation and restoration. But what we need now is real prison reform, not more annual amnesties.Jails breeding illness, not reform India’s overcrowded – average 131% occupancy – and resource-starved prisons are a colonial vestige that prioritise incarceration over rehabilitation. In 2022, there were 159 unnatural prisoner deaths, 119 of them by suicide, and 9,000 prisoners reported mental illness. Nov’s amnesty has spared some of them this suffering, but what about others? While prisons are called ‘correctional’ facilities, they don’t seem to serve this purpose very well. Recidivism rates (criminals committing a crime after being discharged) hover around 15% in some states, including Delhi. This is because many prisoners return to society physically scarred, sometimes psychologically traumatised, and almost always deprived of hope for a better future. To break the vicious cycle of crime-jail-alienation-crime, ‘punishment’ needs a holistic reimagination. It should move from fear and control towards genuine reform. Open prisons, or ‘prisons without bars’, are a compelling alternative. Open prisons are underutilised India had 91 open prisons across 17 states in 2022. Each of these resembles a camp settlement or residential colony designed to prioritise reintegration into society. Model Prison Manual 2016 says all open and semi-open prisons are based on principles of reformation, correction and rehabilitation. For instance, Sampurnanand open prison at Sanganer, Rajasthan, gets prisoners who have not committed heinous offences and have served one third of their sentence. They are allowed to go out between fixed hours and take up jobs like teaching and manual labour to earn a living. Women prisoners can live with their families, including young children. This approach fosters a sense of responsibility and self-worth, and prepares inmates for reintegration with society. Yet, open prisons are underutilised. Where central prisons average 125% occupancy – exceeding 172% in states like Delhi, Maharashtra, Mizoram and Madhya Pradesh – and district jails 157%, average occupancy of open prisons is just 74%. West Bengal’s open prisons, for example, have 54% occupancy even though its central, district and sub-jails are overcrowded with 113%, 182% and 180% occupancy, respectively. A similar trend is seen in other states, and some states like Delhi and Haryana don’t have any open prison at all.SC has endorsed idea The Standing Committee on Home Affairs has recommended transferring prisoners from overcrowded to underutilised prisons. Supreme Court has also endorsed the concept of open prisons as a solution to overcrowding in the ongoing case, Suhas Chakma vs Union of India (2024). It pointed to Rajasthan as an example of their successful implementation, observing that this approach not only addresses prison congestion but also plays a crucial role in rehabilitation of prisoners.Besides, open prisons cost less money and manpower to operate than high-security closed prisons. Research by Prison Aid + Action Research (PAAR) shows Sanganer Open Jail costs ₹500 per prisoner compared with ₹7,000 for Jaipur Central Jail each month. So, transferring 1L prisoners to open prisons could save state govts ₹858cr annually. This is a significant saving that can be used for welfare schemes rather than jails. Lower bar for open prisonsCurrently, open prisons take convicts who have served a portion of their sentence or demonstrated good conduct. Although 76% (Prison Statistics India 2022) of India’s total inmate population consists of undertrials, they are generally not housed in open prisons. So, open prisons’ intake criteria should be broadened. If undertrials charged with non-violent offences are placed in them, they would get an environment conducive to rehabilitation while reducing crowding in general prisons.This is a critical but intermediate step. It will protect those who are not proven guilty of any offence from being sucked into the world of hardened criminals in prison. What it won’t tackle is the elephant in the room – judicial delays that keep undertrials waiting for years for their day in court. That problem, unlike the recent amnesty for undertrials, cannot be solved with a stroke of the pen. However, until it is solved, grand celebrations on Constitution Day will feel hollow. The writers are with Vidhi Centre for Legal Policy