New Delhi: Despite elderly and physically-infirm prisoners posing little or no threat to the society, and various courts repeatedly laying down that the conduct of the prisoners and not the nature of their offence should be the criteria for determining if they are eligible to be sent to open prisons, recent data submitted before the Rajasthan high court by the state government has revealed non-adherence to these directions.The data, analysed by Prison Aid + Action Research (PAAR), an organisation working for prison reforms, has revealed how over 50% of the prisoners have been denied open prison facility due to the nature of their crime.Speaking to The Wire, Smita Chakraburtty of PAAR, who has been invited as an expert by Justice Sandeep Mehta of Jodhpur bench of the Rajasthan high court to address it on cases regarding the transfer of prisoners to open prisons in Bhanwari Devi case and Inderjeet case, has said that the organisation analysed a total of 750 cases presented before the Open Air Camp Committee in 2020.Nature of offence criteriaStating that the group looked at the reasons for transferring a prisoner to open prisons and the reasons for rejecting an application, she has said, “We have found that the committee rejected many cases based on nature of offence even when the rules use the word ‘ordinarily’.”Chakraburtty says it is “cruel and inhuman to keep the elderly caged” in prisons. In the case of one Krishnan Lal, she says, he spent 33 years in the closed prison before being considered for transfer.Representative image. Photo: ReutersIn Lal’s case, the Supreme Court in 2001 ordered that his imprisonment for life means imprisonment for actual life, and that “he shall not be entitled to any commutation or premature release under Section 401 of the CrPC, Prisons Act, Jail Manual or any other statute and the rules made for the purpose of grant of commutation and remission”.Overall, Chakraburtty says, “The committee rejected many cases based on the nature of offence even when the rules use the word ‘ordinarily’.” This, despite the high court of Rajasthan time and again pointing that Rule 3 lays down the classes of prisoners who are ordinarily not eligible for being sent to open camp, hence, the court had noted that the rejection cannot be on the basis of nature of offence.Conduct of prisoners“In various judgments, the nature of the offence was rejected by courts as the sole reason for rejecting admission. Courts have gone further to state that the prisoners’ conduct during incarceration should be taken into consideration to make a decision regarding admission to open-air camps. These observations have stressed on the word ‘ordinarily’ which does not mean ‘necessarily’,” says Chakraburtty.Also read: Rajasthan HC Takes Suo Motu Note of The Wire’s Prison Report, Orders ‘Overhaul’ of Prison ManualThe data on how prisoners have been selected for open prisons in Rajasthan was revealed in March this year. Justice Sandeep Mehta of the Rajasthan high court ordered additional advocate general Farzand Ali to take assistance from Chakraburtty to work on various issues, including meetings of open-air camp committees for transfer of prisoners to open prisons. Following this, on March 15, Ali wrote to the state government asking for data as required by the high court.PAAR studied the data submitted in Bhanwari Devi case and the minutes of open-air camp committees, which have been regularised since the publication of the open prisons of Rajasthan report by Smita Chakraburtty in 2017. This report was submitted to the Rajasthan high court.Multiple requests deniedThe report says there have been a total of 373 cases in which admission to open-air camps has been denied. Of these, 173 rejections have been on the basis of the nature of offence under Section 3 (d) of The Rajasthan Prisoners Open Air Camp Rules, 1972. This apart 43 rejections have been of prisoners who are “lunatic or have a mental deficiency or are physically incapacitated”.Representative image. Photo: PixabayAlso, it has revealed that all these 373 prisoners whose admission into open-air camps have been denied for those in prison for seven years or more. And while 12 of them has been incarcerated for over 20 years, one has been in prison for 33 years.The plight of elderly and physically weak prisonersStating that “almost half of all the cases where the transfer of a prisoner from a closed prison to open air camp has been rejected is on the basis of ‘nature of offence’ as included in Section 3 (d) of the Rules.” Chakraburrty adds, “The most significant reason for rejecting admission has been ‘nature of offence’, being mentally deficient or physically infirm or being aged.”Reacting to this, she says, “Prisoners’ parole or transfer to open prison have been subjected to blanket rejection under Section 3.”Lamenting that prisons have been incarcerating the elderly, the prisons’ reforms activist adds, “The elderly/physically infirm prisoners pose no threat to the society. There are dozens of prisoners languishing in prison for over 20 to 25 years. This is a gross violation of human rights.”Calls for amending rulesIn view of the findings, PAAR has recommended Section 3 of Rajasthan Prisoners Open Air Camp Rules,1972, be amended as at present it is being “used as a blanket barricade to restrict prisoners to be shifted to open-air camps”.Also read: From Segregation to Labour, Manu’s Caste Law Governs the Indian Prison SystemIt also says that as per the open prison study, 81% of the inmates are first-time offenders with no criminal antecedent. Stating that around 3,000 inmates in Rajasthan are first time offenders who have perpetrated an accidental or an unplanned offence, it adds that “it is unlikely that such prisoners will re-offend or pose a threat to the society”.The group has also demanded that elderly inmates may be shifted to open prisons since they pose no threat to the society and the closed prison system cannot provide for their medical care.A humane systemIt has also noted that these measures and shifting nearly 3,000 prisoners to open-air camps would help the Rajasthan government save around Rs 25 crore annually since the per capita amount on prisoners in closed prison is Rs 7,094 per month, whereas in an open prison it only around Rs 500 per month.The report has also said that not only are open prisons 14 times cheaper than traditional prisons, they are also less human resource intensive because 92.4% less number of staff are required to manage them.Above all, it says the open-air system is a “human system” where there is “no prevalence of inhumane conditions”, where prisoners live with their functional family and enjoy its psycho-social support, and where prisoners “work towards preserving the graded liberty” and “make a conscious choice of not relapsing into the absolute confinement of the traditional closed prison system.”