Smita Chakraburtty

Smita is advocating for large scale transition from closed prison to an open prison system in India. She has been influencing policy level changes in several states and at the National Level in India. Open prison is a system of graded liberty and a gradual transition from the inhumane and regressive closed-prisons system to a progressive and reformative open prison system.

Smita recognizes that a large part of criminal offences is not due to malicious intent but happen either accidentally or due to a momentary lapse of judgement. However, irrespective of the nature of offence and the level of criminal intent behind the crime, the criminal justice system gives complete confinement to “all” criminals through the closed prison system determined by the absolute denial of liberty (of time, space and choice). Such a system does not uphold a sense of justice within the offender and allows no scope for reform. Recognizing a need to solve this problem, Smita is formulating a progressive and a reformative approach in the prison system of the country with regard to the extent of restraint and surveillance necessary to contain prisoners, one that strikes a fine balance between the fundamental right to liberty, and a just sense of punishment.

Inspired by the concept of open prisons in the state of Rajasthan, but completely changing its fundamental scope from being an end-of-term good-to-have charity only for well-behaved prisoners for social integration to it being their fundamental right during the sentence period, Smita is reforming the national prison system to one that considers open prisons as a first-choice for both under trials and convicted prisoners and only sends them to closed prisons if they default. Smita strongly believes in giving a conscious agency of choice of choosing reformation and graded liberty as opposed to a life in crime. She is making a case for the same through her work.

Though her pioneering on-ground research in open prisons and subsequent work in advocacy spanning over a decade through a public data-driven dashboard, Smita has been able to make a compelling humane, social and a business case for opening open prisons cross the entire country. Because of the strong advocacy in front of the Indian judiciary both in the federal and state level, Smita’s work impacted in the increase of the total number of open prisons in from 29 open prisons in 2016 to 42 open prisons in 2023 in the state of Rajasthan. The Supreme Court of India has acknowledged and endorsed her recommendation of expanding the open prisons in the country.

Smita is now looking to accelerate and standardize this massive process of opening up more open prisons across the country by holding conferences and facilitating conversations for the judiciary and executive for inter-state knowledge exchange and creating more internal champions for this new system in every state.

The problems with closed prisons are many. Overcrowding is as high as 150% in some prisons (The Wire 2017). Many of the prisoners commit suicide and die unnatural death (one death every 5.5 hours in Indian prisons, NewsLaundry 2016). They are denied access to justice and their every move is tracked. Imprisonment turns into captivity through rigorous control of space and time. The prisoner is rendered voiceless in the criminal justice system and the very essence of criminal jurisprudence in a democracy is damaged. Due to complete seclusion from society, many lose their family neighborhood, community ties, and livelihoods. Moreover, prison time attaches social stigma to them as individuals and as community members and that affects their employability severely. The final result upon release is social disintegration of prisoners as opposed to social reintegration, and high rates of recidivism eventually.

However, the problem is not punishment, but “absolute confinement” where one’s rights of liberty, dignity and choice of work are suddenly snatched. “Everyone” in a prison is labelled as a criminal—convicted or undertrial—without distinguishing them according to intent of crime and other factors. This results in punishment outcomes described above that are disproportionate to their crime. It is important to understand that a majority of prisoners perpetrate an unplanned or accidental offence under a heightened or anxious state of momentary lapse of judgement (e.g., accidental deaths that happen during a drunken brawl) and some are just petty-offenders. Amongst the undertrials, nearly 43% (about 122,000) remain detained in closed cells without their fundamental right of liberty and choice for anywhere between six months to more than five years, without any proof whether they committed the crime or not. Many of them have spent more years in prison than the actual term they would have served had they been convicted.

The principle of criminal law in the Indian Penal Code too speaks about a graded response to criminals. However, it does not translate to reality. The only dimension of graded response in the current system is of “time” (sentence period), but there is no dimension of “liberty”. But not having the latter leads to an inhumane and retributive system, without any scope for reform. The closed prison system has shown not to solve the problem of crime but only to give a false sense of security to the society. With the recent wave of open prisons taken up by the Supreme court due to Smita’s work, there cannot be a better time to consider making them a reality.

Open prisons are a radical shift from closed prisons as the former includes houses where prisoners are allowed to live with their families and go out of the prison to earn a living. The state of Rajasthan has pioneered this concept and has a system in place to have certain prisoners in open prisons. Those who are convicted for life and have completed one-third of their sentence to be eligible to stay inside open prisons. Prisoners who are habitual offenders or career criminals or are a part of organized crime are ineligible to stay in open prisons and continue to stay inside the conventional closed prisons.

Recognizing the need of an in-depth study about open prisons as the first step to set at rest the misgivings about them in the minds of many including Smita. In 2017 she analysed the open prisons of Rajasthan by individually interviewing 428 convicts living there and produced a detailed 385-page report that was submitted to the respective heads of the State Legal Services Authority, Director General Prisons (DG Prisons) of every Indian state, and the Indian Supreme Court. Through this report Smita has made a compelling case for open prisons by highlighting the various financial, administrative and humanistic benefits of the open prison system to the State and how it also offers solutions to the existing problems of the closed prisons. For instance, through a detailed break-up and comparison between the Jaipur Central Jail (closed prison) and the Sanganer Open Prison, Smita has clearly shown how open prisons are 14 times cheaper than the closed one, require a staff to prisoner ratio of 1:80 (as opposed to 1:6 in closed one), how it can solve the problem of overcrowding in closed jails, amongst many others. Smita also highlighted that in open prisons, 81% of prisoners were one-time offenders, 57% were convicted for an unplanned/accidental offence, and only 2% were involved in revenge attack or killing. However, even in this 2%, no new offence was perpetrated after coming to open prison, and the rate of overall recidivism and escape in open prisons is negligible; all this while maintaining the fundamental right of liberty of the prisoner and a minimum burden on the public exchequer.

Her simple and effective suggestions include building up a data dashboard for the first time by collecting and collating public data from multiple sources such as the Right to Information applications that seek information from public entities. Smita and her team have managed to map and demonstrate the specific gaps in the closed-prisons system, often with added nuances of anecdotes via interviews. She has managed to demonstrate how the rate of recidivism is negligible in open prisons with only rare cases of witness prison escape or custodial violence. With a goal of upholding the fundamental right of liberty of the prisoners, she has brought the judiciary and executive together to champion the idea of open prisons.

Through Smita’s efforts, the issue was taken cognizance of by Supreme Court, who immediately ordered the Ministry of Home Affairs (MHA) to take action on all her recommendations. She is also in conversation with other Indian states such as Odisha, West Bengal, Assam, Bihar, Gujarat and is hopeful that having a working relation with the MHA would be helpful in rolling out the open prison programs in different states. India recently became the first country to pass an order to open prisons on a large scale in every state in the coming years.

Smita envisions the concept of open prisons being the norm and closed prisons the exception one day, where convicts and undertrials are sent to open prisons first, and only if they show signs of misconduct are they sent to closed prisons. However, knowing that reaching that state will be a gradual and a slow process, with resistance coming along the way from many stakeholders, Smita has two priorities at the moment - firstly, opening up of many open prisons in every state to set the ball rolling on open prisons (her recommendation being 2 new open prisons in every district), and secondly, gradually changing the current scope of the eligibility of prisoners in open prisons.

With respect to creating more open prisons, Smita is championing it in Rajasthan and the MHA is now taking lead in other states. There are currently 1,400 prisoners living inside 42 open prisons in Rajasthan whereas 100 more open prisons are expected to be created in a span of two years across the country. This will lead to an increase in capacity of open prisons so that more people from the closed ones can be shifted there. With respect to the eligibility criteria, Smita is championing the need to send even undertrials to open prisons (currently, open prison is only for convicts who have spent around 10 years in closed prisons already) as they are mere suspects who are undergoing pending investigation and trial. The restrictions on undertrials should, therefore, be kept at a bare minimum, so that a fine balance is struck between the fundamental right to liberty & presumption of innocence on the one hand, and the requirement of fair investigation, protective rights and security of the victim on the other. As 75% of prisoner population in closed jails are undertrials, keeping them in open prisons has huge scope to reduce overcrowding in jails. Following the path of least resistance, Smita will start with immediate categories of undertrial prisoners to be kept in open jails, like pregnant women prisoners, women with young kids, women with disability, aged and physically infirm prisoners, prisoners who committed one-time, accidental, or petty offences, accused prisoners who have surrendered in court, etc. who pose minimal risk to society.

Smita understands that although great progress has been made with the Supreme Court passing the order and the MHA taking lead in opening up more open prisons in the country, someone needs to keep following up with every state and find internal champions in judiciary and executive at a state level to ensure effective and accelerated growth of the concept. Smita has in mind 200 key individuals across the nation, comprising of High Court Chief Justices, DG Prisons, Secretary of Home Department, Chief Ministers, etc. who she needs to convince in order to make open prisons the new norm in the country, and has been speaking to them individually now. Smita already has found 5-6 champions in the state of Rajasthan, Bihar, and West Bengal, who are working to make this the new reality in their states. Smita is now working to hold official conferences in these states, where the Chief Justices, State Legal Services Authority Heads, and DG Prisons, who are champions of the open prisons now, will sensitize their fellow counterparts from the other states, knowing that this will be way more powerful coming from them.

Apart from the conferences and individual meetings as part of the advocacy, Smita is working to ensure effective implementation of new open prisons by developing prisoners’ induction program for a smooth transition of closed jail prisoners to open jails, monitoring quality of open prisons, etc. as well as do empirical research on quality of legal aid for prisoners, sentencing practices and recidivism rates, in order to make the case for open prisons even stronger. Till now, Smita has formed a big but a non-traditional team comprising of champions within the government, judges from judiciary, ex-prisoners, and volunteers, and intentionally gave herself the title of an “independent researcher” to appear most neutral while dealing with government. But for the specific work of prisoners’ induction program and empirical research, Smita has a direct team of 12 researchers under PAAR (Prison Aid and Action Research), a registered Public Trust which is one kind of a not-for-profit.

Lastly, Smita has been very active in media advocacy for open prisons (with 72 published national media articles and interviews till now) and going forward, plans to encourage other journalists, writers, and filmmakers to write articles and make documentaries to spread awareness about the open prisons to accelerate their growth. This plays a critical role in portraying the human stories of prisoners to the major public and destigmatizing the concept. Smita is in the middle of creating larger social media engagements and strategies as well to propel this goal of destigmatizing and humanizing the prisoners.

Smita had a difficult childhood. Smita’s parents got divorced when she was very young. Her father suffered from ninety-percent disability and her mother was not financially stable, and neither could take custody of her and fought a long legal battle. Out of her 16 years studying in a convent school, Smita was not allowed to go out of its confines for 7 long years because of the lack of a legal guardian and had to spend even the vacations alone in the convent. This led to a deep sense of confinement and social rejection in her.

Smita started studying about police violence and torture during her time in Presidency College (2004-07) in Kolkata at a time of political conflict in the state. Smita’s college seniors got arrested time and again, and she visited them in prisons and helped them with legal aid. Smita, during different times between 2007-11, went to the highly militarized zone of Kashmir on her own to study custodial violence, spoke to the Supreme Court judges in Delhi, fought with the bearer who would not allow her in for three days, and finally managed to get hold of the sitting judge. She convinced him to let her visit the military camps, police custodies, government hospitals, etc. in Kashmir to learn more about custodial torture, and got access for the same. The same Supreme court judge later allowed Smita to visit the closed prisons of West Bengal, where she got acquainted with the general prisoners and the problems of the closed prisons.

Building her credibility on prison understanding over the years, Smita, in 2014, was commissioned by the Bihar State prison authorities to inspect each of the 58 prisons of Bihar. Smita went beyond the basic inspection requirements and spoke to every single one of a total of 30,070 prisoners at a personal level—about their life history, life at prison, why they committed a crime, and so on. With everyone being completely open with her, Smita got a first-hand in-depth understanding of the problems of the prisoners and the prison system in the country. Smita did pioneering work through this one-of-its-kind inspection and Supreme Court passed an order to make such inspections compulsory in every state. One day, Smita got a call from the Rajasthan State Legal Services Authority to help them with the problem of eviction of prisoners who did not want to leave after finishing their sentence. This was the first time Smita came to know about Open Prisons, and after looking into this unique case in the history of the country, Smita spoke to and convinced the Chief Justice of Rajasthan the same day to study not just that specific problem, but the open prisons of Rajasthan. She got them to sponsor the logistics of it, got herself personal funding from philanthropies, and started her work in Rajasthan. After visiting the first open prison, Smita immediately realised the potential of the Open Prisons, if changed in their fundamental scope, to solve all the problems of the prisons of the county and started to work on making it a reality.