Rape, POCSO Convicts Not Absolutely Barred From Open-Air Prisons, Must Meet Exceptional Circumstances: Rajasthan High Court Full Bench

The Rajasthan High Court has held that a prisoner who is convicted for rape under IPC or POCSO Act, is not totally ineligible to be transferred to an Open Air Camp, provided some special/exceptional circumstances are established.

However, such prisoner does not have an automatic right for such transfer.

The full bench of Chief Justice Sanjay K. Agrawal, Justice Sameer Jain, and Justice Praveer Bhatnagar observed, 

"A prisoner convicted under Section 376 IPC or POCSO Act is not totally ineligible for transfer to an Open Air Camp. However, such a prisoner has no automatic right to admission in Open Air Camp, and the nature and gravity of the offence including the age of the victim and the facts of the case are legitimate considerations for the Advisory Committee and the Advisory Committee must make an individualised, reasoned assessment of institutional conduct, reformative potential, risk and readiness for reintegration, and record its reasons for transfer to Open Air Camp."

It opined that the word “ordinarily” used in Rule 3 of the Rajasthan Prisoners Open Air Camp Rules, 1972 (“Rules”), which lays down the concerned ineligibility, did not reflect an absolute bar, rather a discretion exercised in consonance with Article 14.

“Article 14 does not create a fundamental right to admission to an Open Air Camp. It does, however, reinforce the requirement that the discretion under Rule 3 and Rule 6 along with Rule 14 of the Rules of 1972 be exercised rationally, consistently and upon relevant material, and rejection solely based on Rule 3(d) and that has been effected under Section 376 IPC or POCSO Act, without considering whether special circumstances exist, would risk rendering the word 'ordinarily' ineffective.”

For context, Rule 3 of the Rules lays down the conditions for ineligibility for admission to open air camp, with a recital that the classes therein shall not “ordinarily” be eligible. Clause (d) of Rule 3 includes prisoners who are convicted of certain offences including for rape.

The Court was hearing a criminal reference made by Justice Anoop Kumar Dhand in the background of a conflicting position of law regarding this question. As per the liberal view, Rule 3 read with Rule 4 of the Rules does not prohibit the prisoners falling under these provisions to be sent to the Open Air Camp. However, the restrictive view was otherwise.

In this background, after perusing the provisions, and the reformative purpose of the Rules and the instrument of Open Air Camp, the Court highlighted that the word “ordinarily” used in Rule 3 did not signify an inflexible or cast iron rule, but upon the context in which it was used.

It held that the provision could not be automatically read as “shall never be eligible”, and individual assessment was required as per other provisions of the Rules.

“The nature and gravity of the offence may, therefore, constitute a distinct relevant consideration when the authority determines whether the 'ordinary' exclusion should be departed from.”

“A prisoner falling under Rule 3(d) of the Rules of 1972 cannot claim admission to an Open Air Camp as a matter of right, merely because the word 'ordinarily' is neither absolute nor mandatory. Conversely, the authority cannot refuse even to consider the case solely by stating that the conviction falls under Rule 3(d). As such, Rule 3(d) creates an ordinary exclusion, but it does not totally eliminate consideration of an exceptional case. The prisoner must establish special or exceptional circumstances sufficient to justify departure from the ordinary rule…”

At the same time, the Court observed that the discretion had to be exercised consistently with Article 14 while considering individual cases of prisoners who placed special or exceptional circumstances before the competent authority.

“…the nature and gravity of the offence including the age of the victim and the facts of the case are legitimate considerations for the Advisory Committee and the Advisory Committee must make an individualised, reasoned assessment of institutional conduct, reformative potential, risk and readiness for reintegration, and record its reasons for transfer to Open Air Camp…”

The referred question of law was accordingly answered.