Speaking at an event that supported the concept of open prisons in India, Justice Lokur, known for his influential rulings on social justice and his outspoken views on the state of Indian jails, was asked whether the judiciary contributed to the issue of overcrowded prisons.
NEW DELHI: Justice Madan B. Lokur, a former judge of the Supreme Court, emphasized the need for the Indian judiciary to return to the principle of granting bail over incarceration.
Speaking at an event that supported the concept of open prisons in India, Justice Lokur, known for his influential rulings on social justice and his outspoken views on the state of Indian jails, was asked whether the judiciary contributed to the issue of overcrowded prisons.
He noted that the principle of “bail, not jail” seems to have diminished within the court system. However, he cited a recent Supreme Court decision in the case of Manish Sisodia, which reaffirmed the norm of prioritizing bail.
Justice Lokur argued,
“If a person is eligible for bail, they should be granted it. Denying bail compromises an individual’s freedom and personal liberty.”
The Bench, comprising Hon’ble Justice B.R. Gavai and Hon’ble Justice K.V. Viswanathan, expressed dissatisfaction with how bail applications were managed by both the Trial Court and the Delhi High Court. Earlier this year, the High Court had denied Sisodia’s third set of bail applications, leading him to appeal to the Supreme Court.
In its ruling, the Supreme Court noted that the lower courts seemed to be “playing it safe” by routinely rejecting bail. The Court reiterated that “bail is the rule and jail is the exception,” criticizing the procedural delays that had left Sisodia in custody without a timely trial.
The Supreme Court’s decision represents a significant shift in the approach to bail. The Court remarked that sending Sisodia back to the Trial Court and then to the High Court would be like “playing a game of snakes and ladders,” which it deemed a miscarriage of justice. The judgment emphasized that the trial was unlikely to conclude within a reasonable period, and continuing to hold Sisodia in custody would violate his fundamental right to liberty under Article 21 of the Indian Constitution.
The principle that “bail is the rule, jail is the exception” was established by the Supreme Court in the 1978 landmark case of State of Rajasthan v. Balchand alias Baliya. This judgment emphasized several constitutional rights, with Article 21 being particularly crucial.
Article 21 of the Indian Constitution safeguards an individual’s right to life and liberty, and detention infringes upon these rights. The primary purpose of detention is to facilitate the judicial process by ensuring the accused’s presence during trials.
However, if it can be assured that the accused will appear when required, detention becomes unnecessary. Therefore, the Court ruled that the provisions of the Criminal Procedure Code, 1973 (CrPC), related to arrest, should be interpreted in a way that avoids detention unless absolutely necessary.
According to the National Crime Records Bureau, around 75% of Indian prisoners are undertrials. Justice Lokur criticized the practice of preemptive detention, stating,
“Arresting someone and incarcerating them without certainty of guilt undermines the rule of law.”
The event was organized by Prison Aid and Action Research (PAAR), an organization that advocates for open prisons—facilities without bars where inmates live under a trust-based, self-regulatory system. Rajasthan has led the way in India with this model, beginning in the 1950s with the efforts of Gandhian freedom fighters. Smita Chakraburtty, PAAR’s founder, conducted a study on Rajasthan’s open prison system at the behest of the Rajasthan High Court.
Justice Lokur stated,
“Arresting someone and jailing them as a form of punishment without knowing if they’re guilty is unjust. This undermines the rule of law.”
“Sanganer lacks bars or walls and is run by the prisoners themselves. The recidivism rate in open prisons is minimal… once they enter the open prison, they do not re-offend.”
“I would encourage the Bengal government to adopt this system,”
she suggested.
The West Bengal Correctional Services website indicates that there are four “open-air correctional homes” in the state.
The 2017 report highlighted the success of this model and was later presented to the Supreme Court. Justice Lokur, then overseeing the matter of inhumane conditions in Indian prisons, took note of the report and instructed all states to establish open prisons.
India’s largest open prison, located in Sanganer, Rajasthan, accommodates around 450 inmates who live with their families. In recent years, the facility has introduced amenities like an anganwadi center and a primary school, which has also attracted children from the surrounding community.
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Ajit Singh, former Director General of Rajasthan Police and a panel member, remarked,
“The open-prison system is more effective for reforming, rehabilitating, and reintegrating prisoners into society compared to traditional jails.”
