Judgment R.S. Chauhan, J.-Dante in his Divine Comedy, Book III, called The Inferno describes the conditions prevailing in hell. Consisting of nine rings, the hell has different rings assigned to different groups of sinners. In each ring the sinners are tortured and tormented. Instead of rings, our jails have barracks, where the prisoners, both convicted and under trials, are abandoned. In Rajasthan, the barracks are called "barda" (a term used in the village for the place where animals are tied). This is rather reflective of our attitude towards the prisoners. Housed far away from human habitations, the prisoners are out of sight and out of our mind. They exist in a low visibility area of our society. They rot in a hell created by a welfare State. The pitiable condition of our jails is an open secret. Though many Commissions have been constituted, many reports have been submitted, but they have fallen on deaf ears. Even the repeated exhortations of the Honble Supreme Court have not elicited any fruitful response from the State. Except for some token lip service, the State has not taken any creative and concrete steps for ameliorating the conditions of our prisoners. Hence, the petitioners, a groups of convicted prisoners lodged in the Central Jail, Jaipur, have knocked at the gates of this Court with a very limited prayer : to be transferred to the Open Air Camps ("the Camps", for short) under the Rajasthan Open Air Camp Rules, 1972 ("The Rules", for short) which are functioning in the State. 2. In brief , the case of the petitioners is that they have been convicted for different offences, mostly for offence under Section 302 of Indian Penal Code (IPC, for short) and have been sentenced to different terms, mostly for life imprisonment. According to Rule 4 of the Rules, a convicted prisoner is eligible for being transferred to a Camp in case he has completed one-third of his sentence and if his conduct in the jail has been good during his incarceration. All of them have completed more than one-third of their sentence; their track record in the jail has been good. Thus, they are eligible for being transferred to the Camps under the said Rules. However, neither the State Government is convening the meeting of the Advisory Committee in accordance with the Rules, nor is it transferring the petitioners to the Campus. Thus, they are eligible for being transferred to the Camps under the said Rules. However, neither the State Government is convening the meeting of the Advisory Committee in accordance with the Rules, nor is it transferring the petitioners to the Campus. Thus, they are needlessly languishing in the jail. The petitioners have prayed that not only they should be shifted to the Camps, but also in case there is lack of accommodation in the Camps, then the same should be increased by establishing more Camps in the State. 3. On the other hand, the State has contended that Rajasthan is leading the nation in the number of Camps functioning in the State. There are ten Camps operating in the State. About 456 convicted prisoners are housed in these Camps. According to Rule 6 of the Rules, the convicted prisoners are transferred to the Camps according to their seniority calculating as the years spent by them in the jail. Thus, those who have done more time in the jail, they are transferred first; the one with less time are held back. Thus, the principle of first come, first go is applied. The State has also submitted that a proposal to set up three new Camps is under consideration, namely one at Ajmer, Jalore and Sriganganagar districts. However, till a suitable site is located, till necessary warders are finalized, the Camps cannot be opened at these places. Moreover, because of paucity of funds it is not possible to set up such Camps in each district of the State. 4. We have heard the learned Counsels for the parties and have perused the record produced before this Court. 5. Oscar Wilde, the English author, who knew the prison system closely, having being sentenced there many a times, wrote about the prison system in these lines : I know no whether Laws be right, Or whether Laws are wrong All that we know who lie in goal Is that the wall is strong, And that each days is like a year, A year whose days are long. (The ballad of Reading Gaol, 1898, V, I) He also wrote : The vilest deeds like poison weeds, Bloom well in prison-air; It is only what is good in Man That wastes and withers there. (The ballad of Reading Gaol, 1898, V, I) He also wrote : The vilest deeds like poison weeds, Bloom well in prison-air; It is only what is good in Man That wastes and withers there. (Ibid, V, v) He further wrote : Every prison that men build Is built with bricks of shame, And bound with bars lest Christ should see How men their brothers maim. (Ibid, V, iii) "Angela Davis in her An Autography says "Jails and prisons are designed to break human beings, to convert the population into separations in a zoo obedient to out keepers, but dangerous to each other". Oliver Goldsmith in The Vicar of Wakefield, says "Our present prisons . . . .find or make men guilty . . . . enclosed wretches for the commission of one crime, and return them, if returned alive, fitted for the perpetuation of thousands" (1766, chapter XXVI). Henry Miller has observed Prisons of course is the school of crime par excellence, until one has gone through that school one is only an amateur". (The Air Conditioned Nightmare, 1945, The Soul of Anaesthesia"). 6. What has been said about the 18th and 19th century prisons in Europe and America is equally true about our prisons in the 21st Century. Dark and dingy, brutal and chaotic, overcrowded and unhygienic, forgotten and abandoned, protective and concealing about 2000 prisons dot the landscape of our country. Although the Preamble of our Constitution proclaims Justice, liberty, equality and fraternity, although Part III of the Constitution of India protects fundamental rights of the people, yet the Constitutional Ganges is, many a times, blocked at the prison walls and gates. Not only our Constitution, but also the Universal Declaration of Human Rights, 1948 (the Declaration, for short) and the international Convention on Civil and Political Rights, 1966 (the Convention, for short) delineate the basic rights of the people including the prisons. However, notwithstanding the Constitutional mandate and the requirements of the international law, the prisoners, both convicted and the undertrials, at times, are denied the basic human rights behind the prison walls. 7. Prison is a subject of legislation under Entry 4 of List II (the State List) in the Constitution of India. Hence, each state has its own Prison Manual. However, most have followed the Prisons Act of 1894, an archaic piece of legislation drafted under the British Raj. 7. Prison is a subject of legislation under Entry 4 of List II (the State List) in the Constitution of India. Hence, each state has its own Prison Manual. However, most have followed the Prisons Act of 1894, an archaic piece of legislation drafted under the British Raj. Therefore, in order to study the problems of our jails, in order to suggest solutions for these problems, repeatedly the Central and State Governments have established Commissions. The National Police Commission (1977-1980) looked into issues like arrest, detention in custody, interrogation of women, and delay in investigation (which contributes to the undue detention in custody of non-convicted persons). Besides, highlighting the need to adhere to the provisions of law, it made wide ranging suggestions to amend laws and procedures to cut down on delays at the investigation and the trial stages, and avoid custodial violence and lock-up illegalities to inspect police lock-ups and report on them. 8. Three years later, the All India Committee on Jail Reforms (1980-1983), popularly known as the Mulla Committee noted, "Prison administration in India has been of and on, a subject of criticism in the Press, the Parliament and the judiciary". "Over-crowded prisons, prolonged detention of undertrial prisoners, unsatisfactory living conditions, lack of treatment programs and allegations of an indifferent and even inhuman approach of person staff have repeatedly attracted the attention of critics over the years". The recommendations of the Mulla Committee touched upon legislative, operational, security aspects besides matters like classification of prisoners, living conditions in prison, medical and psychiatric services, treatment programs, vocational training for prison immates, problems related to undertrials and other unconvicted prisoners, problems of women prisoners etc. The report laid emphasis on the management of prisons to be entrusted to a cadre of professionals. 9. A decade later, the National Commission for Women report on "Custodial Justice for Women" merits attention. The Krishna Iyer Committee forms the basis of this Report. The Report deal with different areas touching women prisoners. The report laid emphasis on the management of prisons to be entrusted to a cadre of professionals. 9. A decade later, the National Commission for Women report on "Custodial Justice for Women" merits attention. The Krishna Iyer Committee forms the basis of this Report. The Report deal with different areas touching women prisoners. Its recommendations included i) Women prisoners, like men, should be informed of their rights under the law, ii) women constables should conduct searches, iii) Medical check ups of women prisoners or undertrails, should be done by women doctors as soon as they come into the prisons, iv) Women prisoners should be allowed to contract their families and communicate with their lawyers, women social workers, and voluntary organizations, v) Women prisoners should be allowed to keep their children with them, vi) Voluntary organizations of women should be encouraged to be associated with women prisoners, vii) Separate jails should be provided for women, viii) Special prosecution officers should be available to present the case of women prisoners. Many of the recommendations, fortunately, were implemented later on by changing the laws. 10. But, the National Human Rights Commission (NHRC, for short), in its Annual Report (1993-94) expressed its deep concern about the "appalling conditions of over crowding, lack of sanitation, poor medical facilities, inadequate diet and the like, in most of the jail of the country. These serious deficiencies are compounded by unconscionable delays in the disposal of cases for various reasons and mismanagement in the administration of jails, all of which need to be remedied". 11. The different reports mentioned above, by and large, were voices in wilderness. Despite the lapse of over twenty-five years, the recommendation of the Mulla Committee Report is yet to be implemented in toto. Moreover although the NHRC has spoken out about the plight of the jails in the country, the government, both Central and State, have yet to pay an attention to its voice. The silence of the State has caused severe damage to basic humanitarian considerations, the rule of law and public confidence in the credibility of the entire system. Sensitivities in regard to human suffering and the inescapable disregard of law have been dulled. Because of these the foundation of a democratic society is being jeopardized. 12. Of course, the Honble Supreme Court has rushed to the rescue of the prisoners. Sensitivities in regard to human suffering and the inescapable disregard of law have been dulled. Because of these the foundation of a democratic society is being jeopardized. 12. Of course, the Honble Supreme Court has rushed to the rescue of the prisoners. The Apex Court has proclaimed that merely because a person is imprisoned, he is not denuded of his fundamental rights. Albeit, some of the fundamental rights, like the freedom of movement, freedom to profess any profession, trade or business etc. are eclipsed during the period of incarceration, but the fundamental right to life and liberty, to expression and speech, to hold ones belief and religion etc. continue with the individual during the period of imprisonment. Hence, the State is legally bound to ensure that these fundamental rights are not denied to the prisoners in jail. Furthermore, in a series of landmark Judgment s, the Honble Supreme Court demarcated the rights of the prisoners in different fields : Arrest and detention-(Prem Shankar Shukla vs. Delhi Administrative, AIR 1980 SC 1535 ; Joginder Kumar vs. State of U.P. & Ors., 1994 Cri LJ 1981; Bail and remand vs. Hussainara Khatoon, cases 1980(1) SCC 81 = 1980(1) SCC 91 = 1980(1) SCC 93 = 1980(1) SCC 98 = 1980 (1) SCC 108 = 1980 (1) SCC 115 ), illegal detention-Gulam Sarwar vs. Union of India, 1967 Cri LJ 1204, Afzal vs. State of Haryana, 1994 Cri LJ 1240, torture-Sunil Batra vs. Delhi Administration, 1978 (4) SCC 494 , women prisoners-Sheela Barse vs. State of Maharashtra, 1983 (2) SCC 96 , speedy trial-A.R. Antulay vs. R.S. Nayak, 1992 (1) SCC 225 etc. Considering the problem of overcrowding in jails, in Maru Ram vs. Union of India, AIR 1980 SC 2147 , the Honble Supreme Court had advised the State to liberally use the grant of parole to lessen the said problem. In the case of Rama Murthy vs. State of Karnataka, AIR 1997 SC 1739 , the Apex Court opined that "let more and more open air prisons be opened. To start with, this may be done at all the District Headquarters of the country". However, even the directions of the Apex Court have been followed more in breach than as a rule. 13. The treatment meted out to the prisoners has depended on the theory of punishment, which is prevalent at the relevant time. To start with, this may be done at all the District Headquarters of the country". However, even the directions of the Apex Court have been followed more in breach than as a rule. 13. The treatment meted out to the prisoners has depended on the theory of punishment, which is prevalent at the relevant time. Different theories of punishment have permeated the prison administration : the retributive theory, the deterrent theory, the reformative theory, the protection of society theory has held their sway. The earliest thought of punishment preached "an eye for an eye, a tooth for a tooth". Later on, punishment was to be meted out to such an extent as would discourage others from committing the same offence. Hence, harsh, unusual and deterrent punishments were prescribed. But, with the work of psychologists like Skinner, who taught about conditioning and with the growth of welfare State, the reformative theory took over. Under this theory the aim of incarceration is not to deter others, the aim is to recondition the behavioral patterns of the inmates by teaching and reinforcing positive behavior and by discouraging negative or offensive behavior so as to reform them as human beings. However, there are others who believe that a segment of offenders cannot be reformed. Hence, it is better to lock them up so as to protect the society from their menace. 14. But arguing the last school of thought, against long sentences, Brett Collins, a famous penologist, has observed as under : "It is commonly accepted that prison does not provide an environment that is either conducive to, or encouraging of , offender rehabilitation. Prisoners are removed from taking personal responsibility for their lives and actions, being subjected to a militarized routine that actually serves to enable denial of responsibility for personal behaviour. Only a minority of prisoners currently participate in programs aimed at reducing the likelihood of reoffending, whilst the majority are influenced by an environment that serves to further develop patterns admitted and is commonly accepted, that prison serves no useful function in reducing rates of offending, nor the prevalence of criminal activity in the community. . . . The contemporary view that longer sentences and increased use of incarceration will reduce crime in the community is an absolute fabrication built of politically driven motivation, with no basis in solid ideological frameworks. . . . The contemporary view that longer sentences and increased use of incarceration will reduce crime in the community is an absolute fabrication built of politically driven motivation, with no basis in solid ideological frameworks. Internationally accepted research repeatedly demonstrates the failure incarceration to serve as either a deterrent, or an effective means of ridding the community of criminal elements. Despite he escalating prison population, crime rates still increase, the public purse is placed under greater pressure at the expense of services such as education and health. It is, therefore, obvious that alternatives to retributive incarceration need to be explored and that prisoner time must be constructively employed through activities that will assist in the development of attitudes which will have a real and lasting impact upon the development of attitudes which will have a real and lasting impact upon the development of behavioural traits leading to better citizenry. 15. Mr. Collin has, therefore, argued "We should consider the notion of restoring the offender into the community, and of restoring community confidence in the criminal justice system". According to him, "it is though social inclusion, rather than complete isolation that attitudinal shifts can be developed encouraging offenders to alter behaviours that are damaging, whilst enabling the growth of positive attitudes and the development of social skills that will lead to active social integration". 16. Mrs. Kiran Bedi, the well-known police officer and a former Superintendent of the Tihar Jail in New Delhi, has similarly raised the question in her book Its Always Possible, "The challenge before us was what did we want the prison as an institution to be? Isolated, shrouded and unaudited? Or participate, contributory and socially audited?" She answered the question by saying "The use of force . . . . will only increase hostility and anger. . . We will have to move on front merely keeping security to creating security. From a mere watchman to a keen educator". According to her, Reformation and correction are based on environmental acceptance, both within the prison and outside. Community created the best environment necessary for the transformation. . ." She asserts that "We decided . . . . . We will have to move on front merely keeping security to creating security. From a mere watchman to a keen educator". According to her, Reformation and correction are based on environmental acceptance, both within the prison and outside. Community created the best environment necessary for the transformation. . ." She asserts that "We decided . . . to look beyond their criminal record and trust them as human beings worthy of respect, in the firm believe that if we treat people as if they were wheat they ought to be, we will help them to become what they are capable of becoming good human beings". She concludes, "retribution may assuage the hurt feelings of a victim, but it does not necessarily check the offender from getting at the next victim. In reconstructive justice we were to help move the offender from breaking to mending. It was a process of self -amendment of his own thoughts, feelings, actions and reactions". 17. In 1972, in light of the reformative theory, Rajasthan had formed the Rules. Rule 3 lays down the criteria that would make the prisoners ineligible for the benefit of the Rules. On the other hand, according to the Rule 4, if the convicted prisoner does not fall within the ineligibility criteria prescribed by Rule 3 and had completed one-third of his sentence and had reformed himself to the point of being reintroduced into the mainstream of the society then he could be transferred from the jail to the Camps. The Camps were, thus, a halfway house between the total incarceration of a jail and the openness of the society. In the Camps, the prisoners build their own modest homes, live with their families, work during the day outside the Camp and report to the Camp in the evening. Rule 14 deals with the constitution of the Advisory Committee and makes it obligatory for the committee to submit its report to the Government in January and July. The Rules are self-contained code on the topic of establishing, maintaining the Camps and about transferring the prisoners to the Camps. The Rules are a social beneficial piece of legislation, which should be implemented as liberally as possible. 18. The Rules are self-contained code on the topic of establishing, maintaining the Camps and about transferring the prisoners to the Camps. The Rules are a social beneficial piece of legislation, which should be implemented as liberally as possible. 18. The objectives of the Camps are i) to improve the offender rehabilitation rates, ii) to reduce offender recedivism rates, iii) to improve prospects for social reintegration post release, iv) to develop personal and community responsibility in prisoners, v) reduce the overcrowding of jails, vi) to reduce the rates of violence within prisons, vii) to improve offender and community relations, viii) to improve public image of prison and offenders. These objectives are also reflected in the Preamble to the Rules. The Preamble clearly states, "Whereas it is necessary to frame rules for sending convicts to Open air camps with a view to encourage good conduct satisfactory performance of work and a life of self-disciple among the convicts of Rajasthan, and to provide these convicts with a pre-release opportunity to learn social adjustment and economic self dependence, the Government of Rajasthan in exercise of the powers conferred by Clause (18) of Section 59 of the Prisons Act hereby makes the following rules". 19. Although the Rules do exist, but they have not improved the conditions of the prisons and the prisoners in Rajasthan. There are about fourteen thousand prisoners in the State and only 456 convicted prisoners are housed in the Camps. Clearly, a minuscule number of prisoners are being transferred to the Camps. The majority of hem continue to be in the jails. Such a small number is either an admission by the jail administration about their inability to reform the prisoners, or is a reflection about the inability of the State to implement the Rules liberally. According to statistics available for the year 2004-2005, Rajasthan has invested only Rs. 3,530.1 lakhs for the upkeep and maintenance of its prisons, whereas other states like Uttar Pradesh and Maharashtra have invested about Rs. 18,795.3 lakhs and Rs. 9,759.3 lakhs respectively for their prisons. In fact, between the years 2003-2004 and 2004-2005, the Rajasthan Government had increased the budget for the jail department only by 10.4% whereas Himachal Pradesh had increased it by 145.4% and Tamil Nadu by 40.7%. It seems as though the prison administration is a low priority area for the government of Rajasthan. 9,759.3 lakhs respectively for their prisons. In fact, between the years 2003-2004 and 2004-2005, the Rajasthan Government had increased the budget for the jail department only by 10.4% whereas Himachal Pradesh had increased it by 145.4% and Tamil Nadu by 40.7%. It seems as though the prison administration is a low priority area for the government of Rajasthan. However, a welfare State cannot forget or ignore its constitutional obligations. It does not lie in the mouth of the State to hide behind the fig leaf of fiscal incapacity for not creating more Camps for the benefit of the prisoners. Considering the rise in crime in the State, considering the overcrowding in the jails, considering the need to reform our prisoners, the State is duty bound to increase the number of Camps in Rajasthan. 20. The State cannot be oblivious to the emergence of restorative justice as a new area of law. Initially, Restorative justice was commonly known as a theory of criminal justice that focused on crime as an act against another individual or community rather than the State. The victim played a major role in the process and he might receive some type of restitution form the offender. However, today it is seen as a broad term, which encompasses a growing social movement to institutionalize peaceful approaches to harm, problem solving and violations of legal and human rights. Thus, restorative resolutions engage those who are harmed, wrongdoers and their affected communities in search of solutions that promote repair, reconciliations and rebuilding of relationships. Restorative justice seeks to build partnerships to re-establish mutual responsibility for constructive responses to wrongdoing within the communities. Restorative approaches seek a balanced approach to the needs of the victim, wrongdoer and community through process that preserve the safety and dignity of all. Moreover, restorative justice is not only limited to compensating the victim, it is more for restoring the wrongdoer to his pristine self by granting him a chance to work for the community, to repay the community. Hence, it is a restorative process for the offender. 21. Seen in the perspective of restorative justice, the founding of more Camps becomes imperative. For, firstly, by requiring the prisoners to work and to support their families, the prisoners confidence in his own capabilities is restored. Secondly, the prisoner is taught to be responsible for his own actions. Hence, it is a restorative process for the offender. 21. Seen in the perspective of restorative justice, the founding of more Camps becomes imperative. For, firstly, by requiring the prisoners to work and to support their families, the prisoners confidence in his own capabilities is restored. Secondly, the prisoner is taught to be responsible for his own actions. Thirdly, the prisoner becomes a contributory member of the society. Frothily, since the prisoner is able to look after himself and his family, he becomes less of a burden on the State exchequer and the society. Fifthly, he is brought back to the society as a law-abiding citizen. Thus, the Camps restore the equilibrium between the rights of the individual and the interest of the society. 22. For these reasons, we direct the State to firstly carry out a survey and to collect data with regard to the number of prisoners who are eligible for being transferred to the Camps. Secondly, to establish Camps at each district headquarter for transferring the eligible prisoners. Thirdly, to ensure that the meeting of the Advisory Committee should take place at least twice in a year to ensure the timely transfer of the eligible prisoners to the Camps. This has to be on-going process in order to ensure that the eligible prisoners are transferred as and when their turn comes. This exercise should be carried out within a period of one year from the date of this order. The State is further directed to consider the cases of the petitioners in accordance with the Rules. Those prisoners, who are found to be eligible under the Rules, should be transferred and adjusted forthwith in the Camps already existing. The State is expected to fulfill this Judgment both in spirit and in letter.