Noting that there is no clarity on whether a prisoner is prohibited from possessing a phone in open prison areas, the Delhi High Court has directed the Director General (Prisons) to frame standard operating procedures (SOP) in this aspect.
Justice Sanjeev Narula issued the direction in an order dated October 28 – which became available on Friday – while dealing with the petition filed by a life convict in an open prison who was found to be in possession of a mobile phone. The violation was considered a violation of prison rules and he was punished by being transferred to a closed prison.
Open and semi-open prisons were created to facilitate prisoners’ rehabilitation and reintegration into society by providing a less restrictive environment for those who have demonstrated good and consistent behavior as evidence of reform. The Delhi Prison Rules 2018 distinguish between inmates in open and semi-open prisons and inmates in closed prisons. For example, inmates in open prisons have the right to leave the prison complex daily between 8am and 8pm to gain gainful employment.
While issuing the directions, Justice Narula said: “There is a practical point worth mentioning. For inmates in open prisons, the mobile phone often serves as a primary channel for family communication, work coordination, transportation and digital payments during permitted hours outside. If possession within the open prison precincts is prohibited, there must be a clear and practical system of secure deposit and retrieval so that compliance is possible.”
She added: “Without such an arrangement, the rules risk putting prisoners in pliers, and being vulnerable to abuse either because the device is kept or because they are unable to work outside.”
The court directed the Director General (Prisons), “after consultation with relevant stakeholders, to prepare and notify a standard operating procedure that will either permit retention of mobile phones by inmates of the open prison under regulated conditions, or establish a secure deposit and return facility for hours when inmates are required to remain within the areas of the open prison. This shall be completed and operational within eight weeks.”
The court was hearing a petition filed by Surender Kumar, 45, who was convicted of murder and cruelty towards a woman in 2011. The Supreme Court confirmed his conviction in 2014.
Story continues below this ad
Due to his good behaviour, he was transferred from a semi-open prison to an open prison in June 2019. While in the open prison, Kumar was allowed to be released daily between 8am and 8pm.
In January 2020, during a search of all the prison wards, two mobile phones were found from his ward. He was punished with suspension of the Inmate Communication System (ICS) and canteen for a month on charges of possession of mobile phones.
In August 2020, a judicial evaluation was carried out by the examining magistrate who then recommended his transfer from an open prison to a closed prison. Kumar, through counsel Sarthak Magon, contested that the transfer to a closed prison resulted in a disproportionate diminution of his valuable rehabilitation privilege and procedural incompetence was also pointed out as he was transferred before judicial assessment.
The court noted that prison records show that his behavior was “unsatisfactory” only because of this incident.
Story continues below this ad
Kumar also disputed that assessment, highlighting that he had been granted parole and furlough on more than 20 occasions and returned without a negative report. It was also noted that the authorities are rejecting his requests for early release after spending more than 19 years in prison, solely on the basis of the punitive offense issued in January 2020.
“Indeed, placement in an open prison is a privilege earned through sustained good behavior over a long period of detention. It is not granted lightly and, once granted, cannot be withdrawn on a routine basis. Since the entire edifice of withdrawal rests on a solitary punishment ticket, careful judicial scrutiny is warranted to ensure that the fact of the violation and the procedures for imposing a major penalty are sound, fair and proportionate,” the court reasoned while hearing his case.
Observing that the prison authorities had failed to adhere to due process – by not issuing a written notice calling on the prisoner to show cause – before imposing a major sentence, as per the Delhi Prison Rules, Justice Narula noted that “these requirements are not formalities but essential elements of fair procedure in any quasi-judicial process that restricts significant freedom of rehabilitation. When the founding search report is missing and mandatory notice and investigation are absent, the decision is vitiated for violation of the rules and principles of natural justice. Subsequent ‘judicial assessment’ by the Inspectorate cannot redress the void created by the lack of Compliance is at the stage where facts are found and rights are affected.”
(tags for translation)Legal News
