[This Article is authored by Pragati Garg, a 1st year student at Jindal Global Law School]

Introduction

In December 2024, the Jaipur Bench of Rajasthan High Court (“RHC”) in the case of Gangaram v. State Of Rajasthan (“Gangaram”), referred a question of law to a larger bench. The question pertained to whether a prisoner convicted under Protection of Children from Sexual Offences Act, 2012 (“POCSO”) or Section 376 of the Indian Penal Code, 1860 (“IPC”) which lays down punishment for the offence of rape, be shifted from Closed Jail to Open Air Camp (“OAC”) under Rule 3 (d) of Rajasthan Prisoners Open Air Camp Rules, 1972 (“Rule 3”). Such a query arose after the coordinate division benches (“DB”) of the RHC gave contradictory judgments. The issue is listed before a larger bench of the RHC, and an  Order has been issued to register the criminal reference in this regard. Given that Rule 3 governs several offences beyond Section 376 of IPC and various other states including Tamil Nadu and Maharashtra where similar rules are provided for. The decision in Gangaram is set to have broader implications. It would create a foundation for further jurisprudential development in regard to other states as well. This article delves into the factors that should be considered by the RHC while deciding on the stipulated question of law. This article argues that the word ‘ordinarily’ in Rule 3 be interpreted via subjective, case specific enquiry, tested through a two-pronged framework that tailors the law to the crime as well as the criminal.

Judicial Development

Rule 3 deals with the eligibility for admission to OACs. It provides that convicts for offences under various sections of IPC broadly relating to violence, public order, state security, serious sexual offences or high risk to public safety and trust shall ‘ordinarily’ not be considered for being sent to OACs. By  virtue of Section 358 of Bharatiya Nyaya Sanhita, 2023 (“BNS”) various sections of IPC used in Rule 3 should be correspondingly looked in BNS.

The RHC in Ajit Singh v. State of Rajasthan and Ors (“Ajit Singh”) held that a convict under Section 376 of the IPC can be transferred to OACs. The Court held that Rule 3 does not absolutely prohibit entitlement of prisoners falling in the classes enumerated therein from being sent to OACs. Each applicant’s case must be assessed on an individual basis. If the applicant successfully makes ground to take him out from the scope of ‘ordinarily be not eligible,’ he should then be transferred to OAC. The Court opined that merely because the convict is of a young age, that by itself would not imply that the accused would misbehave with them. Furthermore, the Court stated that if any convict is found behaving in an improper manner while being at the OAC, the indulgence so granted can always be revoked.

However, the RHC in its decision in the case of Rajendra @ Goru v. State of Rajasthan & Others (“Rajendra Goru”) deviated from the decision in Ajit Singh. It held that the term ‘ordinarily’ in Rule 3 must be interpreted while taking the gravity of the offence into consideration. Consequently, the convicts under POCSO were held ineligible for being transferred to OAC. The RHC also opined that sending convicts charged under Section 376 would create fear in the minds of other inmates regarding their safety.

Reconciling Public Safety with Prisoners’ Liberty Rights

The idea behind establishing OACs is to reform and re-socialise the prisoners in laxed conditions unlike closed prisons. It helps the convicts rebuild self-esteem and self-respect, by enabling them to live with their families and earn a livelihood while working outside prison boundaries. Additionally, by keeping labour productive OACs reduce government expenditure. At the same time making sure that the convict receive the appropriate punishment and humane treatment.

The Apex Court in Jashubha Bharatsinh Gohil v. State of Gujarat  held that protection of the society and deterring the criminals and not retributive punishment is the object of law.  This objective justifies consideration of mitigating and aggravating factors while determining punishment. Such factors include the circumstances around which the crime took place and the additional  conditions surrounding the convict which help decide upon appropriate the  punishment. Consideration of such factors leads to the concept of individualisation of penalties as laid down by the Apex Court in the case of Shri Rama Murthy v. State of Karnataka.

In Pramod Kumar Mishra v. State of U.P and Bachan Singh v. State of Punjab the Apex Court held that that while imposing sentences, aggravating and mitigating circumstances of a case are to be taken into consideration. In Mukesh v. State (NCT of Delhi) the Apex Court said that a balance has to be struck between the above-mentioned two factors to asses  as to which side the scale of justice tilts toward. The bottom line being that both aggravating and mitigating factors are to be taken into consideration These factors should be delicately balanced and the discretion in the determination of the quantum of punishment should be exercised judiciously and judicially.

The Apex Court, in Manoj v. State Of Madhya Pradesh, held that mitigating circumstances must be considered at the trial stage to avoid lapsing into retributive responses emphasising the need for psychiatric and psychological evaluations of the accused, and other non-exhaustive considerations. This indicates that to prevent the imposition of a harsh retributive punishment, a subjective enquiry is essential. Drawing on this precedent, a similar subjective assessment would be justified in determining eligibility for placement in an OAC. The common thread in both situations is the determination of the appropriate contours of punishment. Such an approach ensures that justice is served by enabling the convict’s rehabilitation and reintegration, while also preventing any unwarranted aggravation which is inherent in the process of incarceration.

The Court in Rajendra Goru stated that a convict charged under POCSO cannot be shifted to OAC, as it would not be safe if such convicts were allowed to reside with them. Such an extreme presumption cannot be sustained without any substantive inquiry. For instance, Zidan v. State of Maharashtra (“Zidan”), the Bombay High Court sent the convict to a closed jail after being proven guilty under Section 376 of the IPC and some Sections under POCSO for engaging in consensual sex with his minor girlfriend. In such a case it is unclear how can the convict be presumed inherently dangerous. A conviction based solely on consensual sexual act cannot automatically indicate future risk. If Rule 3 is interpreted as per Rajendra Goru, the convicts identical to that in Zidan would be automatically disqualified from getting into OAC.

It is also imperative to acknowledge that even closed prisons are cohabited. If convicts under Rule 3 are believed to be dangerous, then their cohabitation in closed prisons should also be an issue. However, extreme measures such as isolating every prisoner are not considered for closed prisons and safety within closed prisons are ensured with proper vigilance.

Proposed Way Forward

Certainly, it is reasonable to have an anticipation that convicts charged with such a heinous offence might be vulnerable to the commission of such acts. However, this should not become the sole absolute matrix to incarcerate a convict in a closed prison, since this is a question that involves the curtailment of one’s liberty by putting them in such harsh surveillance conditions. Hence, it is important that we make a calculated effort to decide if such an anticipation is warranted. Therefore, to ensure that a prisoner’s right is not violated while also balancing the safety of the inmates of OACs, a twofold inquiry should be undertaken.

Firstly, a subjective enquiry should be undertaken for cases falling under Rule 3. For this the facts of the case of such ineligible convicts be analysed individually. The various factors to analyse can be social and economic conditions of the convict, mental state, circumstances that led to the commission of the act and other such factors. It will help us determine if the convict has a temperament that is generally dangerous or did some extreme circumstances lead to the commission of the crime. If the enquiry shows that the temperament is dangerous it exhausts the convict’s bid to be transferred to OAC. However, if the enquiry shows otherwise, the second enquiry should be undertaken.

The second enquiry should be undertaken to analyse the behaviour of the convict in a closed prison first for a prescribed period of time. If the conduct is found to be safe and well suited for OACs, then they should be considered to be transferred to OAC. This approach ensures that the safe environment of OACs remains intact. Therefore, such a twofold practice should be adopted. The twofold enquiry prevents punishments which are legally and morally unwarranted. This proportional and non-exploitative approach safeguards the rights of prisoners. It also promotes resocialisation and reintegration of convicts into society, all while achieving crime deterrence through self-reformation.

Several countries, including Finland and the United Kingdom, follow systems similar to OACs. In Finland, it is done by the virtue of Chapter 4, Sections 9 and 10 of the Finnish Imprisonment Act, 767/2005. Furthermore, in the United Kingdom, Section 12 of the Prison Act, 1952 empowers the Secretary of State to determine the place of confinement of a prisoner, which can be either a closed or open prison. In both of these countries, placement in OACs is based on conduct and risk rather than the gravity of the offence alone. These models show that to balance safety of the inmates with rehabilitation of convicts, a subjective and individualised approach to open-prison transfers is both fair and effective. 

Conclusion

The question referred in Gangaram presents an important moment for reaffirming the balance between public safety and individual liberty. Rule 3, when read rigidly, risks putting varying situations into a single punitive category, thereby undermining the principles of individualisation of punishment upheld by the Supreme Court. A twofold enquiry, that examines the convict’s specific circumstances and subsequently evaluates their conduct over time offers method to reconcile legitimate security concerns with the constitutional mandate of fairness, reasonableness, and humane treatment. OACs exists as structured mechanisms of reformation, reintegration, and controlled social exposure. By adopting an evidence-based framework, the RHC has the opportunity to craft a jurisprudence that aligns with constitutional values and the evolving understanding of punishment ensuring that justice remains both protective of society and responsive to the dignity of the individual. Therefore, the Larger Bench must clarify the exclusion under Rule 3 requires an individualised assessment or a subjective enquiry.