Supreme Court Suggests Open Air Prisons As Solution To Overcrowding Of Prisons, Cites Rajasthan Model

The Supreme Court on Thursday observed that one of the solutions for overcrowding in prisons can be establishing open-air prisons/camps, and that it will also address the issue of rehabilitation of prisoners

The bench of Justices B. R. Gavai and Sandeep Mehta was hearing a 2020 PIL by Suhas Chakma in this connection.

“The prisoners go out to the community, they earn their living and then come back in the evening”, commented Justice Mehta

Noting that such system is working efficiently in Rajasthan, the bench remarked, “We plan to expand it such that the system of open-air prisons is adopted across the country.”

The bench requested Senior Advocate Vijay Hansaria, (who was appointed Amicus Curiae in the matter on a previous date), Advocate Rashmi Nandakumar [for the National Legal Services Authority (NALSA)] to assist the court in this behalf. In its order, the bench recorded- "...One of the solutions for overcrowding of the prisons can be establishing open air prisons/camps. Such system is efficiently working in the state of Rajasthan. Apart from addressing the issue of congestion in prisons, we will also address the issue of rehabilitation of prisoners. We therefore request Mr Parameswar, who has worked on these issues, to assist us as amicus, in addition to Mr Vijay Hansaria who is already assisting us. We also request Ms. Rashmi Nandakumar who appears on behalf of Nalsa also to assist us next Thursday"

During the hearing on Thursday, there was a discussion on the e-Prisons module.

Senior Advocate Vijay Hansaria, Amicus Curiae in the matter, pointed out, “The convicts are not informed that they have the right to approach the appellate court through legal services authority”

At this, Justice Mehta commented, “That is what the e-module is about. The e-module takes care of everything. I had the occasion to oversee the development of this module in Rajasthan which contained all of these parameters”

Mr. Hansaria insisted that the e-module does not encompass legal aid

Justice Mehta responded, “It does. The only issue is NIC is not giving access to NALSA”

“I have taken information from the jail authorities through the Rajasthan Legal Services Authority”, urged Mr. Hansaria

Justice Mehta said, “You are right. As a matter of fact, we developed that platform but it was not being put to use properly”

“Even the jail authorities which use it have problems- they have the cause of action but nothing regarding the legal aid…What I am requesting Your Lordships is to consider this- we have got data from the Supreme Court Legal Services Authority. The convicts have been approaching 5 years, 10 years, 15 years to 18 years late, despite the fact that we have SOP on access to legal aid, prison legal aid clinics in 2022. Earlier, we had standard operating procedures for representing persons in custody, we have campaign on access to justice to convicts”, urged Mr. Hansaria

Justice Mehta observed, “In the Rajasthan system, we had every parameter. If you try to look at the Rajasthan system, the convict, when he entered the jail, it was seen whether he had any criminal antecedents, whether appeal against conviction has been filed, whether he has been accorded legal aid, all of those parameters have been provided in the E-prisons software that we developed with NIC…You need to sit with those people of the NIC and you will get information about everything. The only thing is whether prisons have the mechanism of generating the data which can be migrated”

Mr. Hansaria advanced, “There are SOPs for everything but implementation is difficult. I have given illustrations from all over the country where to the high court, it has come very late- 10 years, 15 years! Sometimes, the person has already undergone 17 years! It is a matter of concern”

Continuing, he submitted, “I have suggested a way out- Jail-visiting lawyers of the prison legal aid clinic, which is under the NALSA scheme, shall visit each of the jails in the country within four weeks and personally contact the convicts and/or their family members. Jail-visiting lawyer shall inform the convict of the judgment of the court convicting and awarding sentence, and that the convict is also entitled to file an appeal against conviction free of any charges and that the convict has access to free legal aid. The lawyer shall obtain willingness of convict to appeal through legal services committee, if appeal is not already preferred. The lawyer shall write a letter to the district legal services authority that he has informed the convict that he is entitled to appeal against the conviction free of charges through legal services committee and the convict has expressed the willingness or unwillingness to approach the appellate court. The district legal services authority shall forward the letter of to the state legal services authority. Where appeal has to be filed in the High Court, the district legal services authority shall forward the complete papers to the High Court legal services committee. Where SLP or appeal before the Supreme Court is to be filed or appeal, the papers with the translation shall be forwarded to the Supreme Court legal services committee within within four weeks of the receipt. The panel lawyers of the High Court/Supreme Court legal services committees shall file the appeal as soon as possible. The High Court/ Supreme Court legal services committee shall inform the convict through the jail superintendent of the filing of the SLP/appeal. It shall be the duty of the jail superintendent that the convict is made aware of the filing”

“This will take care of things”, submitted Mr. Hansaria

At this, Justice Mehta remarked, “Now we have moved much ahead. With the e-prison module, all formalities of this manual system of applications will not be required. NALSA will get information or the District legal services authority will automatically get information via the custody certificate of every convict as to whether appeal has been preferred. If not, the convict will then be informed by the legal services authority that you are entitled to appeal”

“This has not been implemented”, replied Mr. Hansaria

Justice Mehta remarked, “The problem only is to collect data from prisons. With uniformity in e-modules across the country, this thing will be sorted”

“Pending what is happening, if this exercise is done…”, urged Mr. Hansaria

“NALSA can respond”, allowed the bench

“I don't think it's a very difficult exercise. It can be carried out and the people who are there for 10 years, 15 years without appeal, they can atleast approach. Chhattisgarh has been the worst- 10 years, 15 years in a large number of cases. There are also Uttarakhand, Madhya Pradesh, Gauhati, Andhra Pradesh. And for 10 years, it is impossible to say that a convict knows he can approach the legal services authority! Why would he not approach then? It is happening even in the life sentence cases, they are going in life imprisonment but not before this court. So this exercise may be done for the time being”, pressed Mr. Hansaria

He added, “In the Supreme Court itself, we have a large number of persons. In the High Courts and District courts, it will be a lot much more. In Supreme Court, we have ten years-delay SLPs coming before the court”

Justice Mehta noted, “There is no such right of filing an appeal here in the Supreme Court. In the High Court, the first appeal is as a matter of right. That may be the difference. Sometimes the convict may feel it is fait accompli”

“If a convict of life sentence knows that he has access to free legal aid and can avail the services of senior counsel of this court free of cost, no convict will say 'no', except in exceptional cases. So willingness has to be obtained”, submitted Mr. Hansaria

“There can be a further addition- Whether Right to parole has been considered or not”, observed the bench

As regards the tender of a format of letter by jail-visiting lawyers regarding information to convict on free legal aid , the bench requested Ms. Rashmi Nandakumar, for the NALSA, to take instructions from NALSA in that regard

The bench then posted the matter for next Thursday.

Case Title : SUHAS CHAKMA v. UNION OF INDIA |DIARY NO. - 19935/2020

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