A prison is a place where lawbreakers are confined as a form of punishment where
they are denied various freedoms. Salmondís theory explains the need for
prisons, as the society was changing from a primitive state to a more
state-controlled civilized society; there was a need to keep a check on criminal
activities. For the same purpose prisons were created. It is a jail or place
used permanently or temporarily under the general or special orders[i] of a
State Gov≠ernment for the detention of prisoners.
In India the prisons, and their administration and management, is a state
subject covered by item 4 under the State List in the VII Schedule[ii] of
the Constitution of India. The Prisons Act, 1894 is the oldest legislation
dealing with laws about prisons in India and the Prison manuals of the
respective state government governs them. However, the Ministry of Home Affairs
provides regular guidance and advice to States and UTs on various issues
concerning prisons and prison inmates.
Privatisation of jails has been a contentious issue worldwide but the recent
comment by Niti Aayog head Amitabh Kant on privatizing jails, schools, and
colleges[iii] has sparked the debate in India whether it is the time that
government should step out from these necessary state functions and hand them
over to the private sector or is privatization the only way out to reform our
Our Present Prison System
The prison system which exists today is the legacy of the British colonial
government. Various committees were formed to reform our system but these
legislations and reports have failed to make an efficient system. In the case
of Shri Rama Murthy v. State of Karnataka,
[iv] the court has identified 9
problems existing in our system:
- delay in trial;
- torture and ill treatment;
- neglect of health and hygiene;
- insubstantial food and inadequate clothing;
- prison vices;
- deficiency in communication;
- streamlining of jail visits; and
- management of open air prisons.
In Sunil Batra v. Delhi Administration
,[v], the apex court has
identified the gross violation of human rights of prisoners in jails and laid 3
basic ground lines; a person does not cease to be a human when put behind bars,
he is entitled to all the human rights within the limitations of
imprisonment and lastly, there is no justification for aggravating the suffering
already inherent in the process of incarceration.
Today, it is difficult to say that prisons are a reformative place, looking at
their deploring conditions. The latest statistics[vi] show that the occupancy
rate of prisons has increased from 117.6% to 118.5% between 2018 and 2019. The
high occupancy rate indicates the problem of overcrowding and congestion mainly
due to undertrial prisoners which formed 69.1% of the total prison population in
2019. Despite many efforts, the prisoners still do not have access to
necessities and face inhuman treatment like improper diet, unhygienic
sanitation, unsatisfactory living conditions, shortage of medical facilities,
lack of modern infrastructure, arbitrary use of physical power, solitary
confinement, chained in leg irons and many more.
The Prison System in USA
The privatization of jails is not an alien concept and the origin traces its
history to the 16th century in the United Kingdom. Private prisons receive a
stipend from the government[vii] in exchange for providing all/most prison
management services. The stipend is based on the cost required to house a
prisoner or it could just be a yearly amount which probably depends on the
Many countries including the USA experimented with this model. The idea in the
United States got rejuvenated during the 1980s. In the important case of Pischke
[viii], the court briefly discussed the exercise of governmental
power by private entities. It held that:
We cannot think of anyÖprovision in
Constitution that might be violated by the decision of a state to confine a
convicted prisoner in a prison owned by a private firm rather than by a
government...private exercises of government power are largely immune from
constitutional scrutiny...expanding privatization poses a serious threat to the
principle of constitutionally accountable government.Ē
Initially, in an attempt to manage prison overcrowding and rising costs, the
Federal Bureau began negotiating with privately operated correctional
institutions to confine some federal inmates. The private sector involvement was
limited to contracting out of few services like medical services or health care
which expanded to the complete management and operation of entire prisons. The
prisons in the US are now known as correctional institutions. The maintenance
and management of the prisons or correctional institutions are upon the federal
A recent memo of the US Department of Justice[ix] highlights a shift from
private prisons to state owned prisons. It reports ďPrivate prisons served an
important role during a difficult period, but time has shown that they compare
poorly to our own Bureau facilities. They simply do not provide the same level
of correctional services, programs, and resources; they do not save
substantially on costs; and as noted in a recent report by the Departmentís
Office of lnspector General, they do not maintain the same level of safety and
The rehabilitative services that the Bureau provides, such as
educational programs and job training, have proved difficult to replicate and
outsource and these services are essential to reducing recidivism and improving
public safety.Ē This memo was followed by terminating the contracts with private
prisons or limiting their use. Three states in theUnitedStates[x] and Canada[xi] encountering the lacunae of this model have
either banned them or eventually taken them back under State control.
Why Privatization of Prisons canít work in India?
Marking the inability and inefficiency of the government, it is worth exploring
the working of the Indian prisons under the private sector. Though there is no
doubt that our prison system has many flaws and the policy of privatization has
helped us in 1991 but complete contracting out the services of prisonsí
maintenance and administration to private entities is not compatible in our
A famous case in Israel, the Academic Centre for Law and Business v. Minister of
, laid down the core problems associated with it. The apex court here
struck down the legislation on privatization of prison administration and held
that privatization of prisons of the nation is violative of the 11 basic laws of
its constitution and struck down the legislation on mainly two grounds; Risk of
Abuse of Power and Inmates Right of Liberty and Human Dignity.
The first and the
foremost reason for not privatizing is that justice should not be administered
through the prism of profit. Physical deprivation of citizenís liberty should
not be authorized to the private companies. Our criminal justice system
comprises police, judiciary and prisons and even if one of them is privatized it
will directly affect the other.
There are chances of preferential treatment to
some prison inmates, generally the rich or some powerful big tycoons. This will
make the citizen lose trust in our justice system. Therefore, arrangements that
might usher actors in the system to digress from their duty to deliver justice
impartially canít be trusted.
Secondly, the profit motive of the private parties may prevent them from
adequately providing service to the inmates. Private prisons can get more profit
if they have more prisoners. They donít have any incentive to solve the problem
of overcrowding and in reducing the population of undertrial prisoners.
Therefore, whether it is private or public this problem canít be solved as the
problem lies in the judicial system, not in the prisons.
Thirdly, usage of force by the state to make their work done occurs frequently.
This would call for violation of fundamental rights and action can be taken
against the state byways of enforcement writs. If these functions are delegated
to private entities, enforcement of writs are not available against private
parties under Article 13 of the Indian constitution. Even if the civil and
criminal petitions are available, the courts will take a long time.
Fourthly, Corruption is deeply rooted in our entire system affecting the lower
administration posts like guards and even extends to higher posts like senior
police officials. There are many instances where VIP treatment is given to
powerful inmates. Itís ambiguous as to how private prisons will solve this.
Considering private prisons are not accountable to the public and only held
accountable to the government, the situation is likely to worsen or at best,
remain the same. In the ďKids for Cash
Ē [xii] scandal, two judges in the United
States were accused of accepting money instead of giving harsher sentences for
children to increase occupancy in private prisons. It is an example of how
corruption might get worse. So the idea of privatizing the prison in its
entirety is not possible in the Indian scenario.
There are some suggestions which can overcome the problem in our system:
- One of the solutions can be the intervention of the private parties to a
certain extent may help the government to run the prisons more efficiently.
Public-Private Partnerships (PPPs) are "contractual arrangements between public
sector organizations and private sector investors for delivering and financing
of public projects and services." Undertrial prisoners who have committed petty
offences may be sent to these jails.
For example: Tihar Jail entered into this
system as early as the 1990s. It entered into PPP agreements with DEIEM
India, Minda Furukawa Electric Pvt. Ltd,[xiii] and many more which provides
opportunity of reformation & rehabilitation to the prison inmates by
training and then absorbing them into their respective organizations at the
end of the term.
- Rampant corruption in the government, low budget allocation to prisons,
and an overwhelming judiciary are the major problems affecting prisons.
Reforms are required in these sectors to solve prison problems.
- The speedy trial of undertrial prisoners can solve the problem of
overcrowding and congestion. In Hussainara Khatoon v. Home Secretary State of
Bihar,[xiv] the court held speedy trial as part of Article 21 of the
Constitution guaranteeing the right to life and liberty.
- Overcrowding can also be taken care of by taking recourse to
alternatives to incarceration. These being: (1) fine; (2) civil commitment;
and (3) probation. Overcrowding is reduced by releases on bail as well. Bail
and not jail should be the norm.
- There is a need to increase the number of open prisons, presently there
are 86 open prisons[xv]. In India, these prisons unlike all other prisons
confine convict prisoners with good behavior, minimum security is kept in such
prisons, and prisoners are engaged in agricultural activities.
- There is a need to increase the number of prison training institutes in
our country. Presently there are only three such institutes in Kolkata, Vellore,
and Chennai which are loaded with the task of training prison officials
especially on how to deal with high-risk offenders.
- The MHA has advised to adopt the following resolutions for better
prison administration viz.:
- Video Conferencing facility in all prisons
- All vacancies in the prison department to be filled up expeditiously
- Prisons to have Welfare wing, correctional and probation services
- Adopting the provisions of Prison Manual, 2016.
- The Delhi High Court has advised certain prison reforms[xvi]
- educational opportunity, vocational training, and skill development program to
enable a livelihood option and an occupational status; involvement in sports
activities and creative art therapy; the shaping of post-release rehabilitation
program for the appellant well in advance to make him self-dependent, adequate
counseling is provided to the appellant to be sensitized to understand why he is
One of the crucial functions of the government is administering the prison
system of the country. The delegation of a key task to private entities entirely
will lead to non-yielding results to both sides. It is very well understood now
that to progressively realize and improve the administration of justice and the
prison system, we also need to reform the other arms of our justice system. The
maximum punishment for any being in a liberalized society is the loss of freedom
and such curtailment should be administered by the state and not by private
entities or elsewhere, regardless of efficiency or cost-effectiveness.
book, the best existing solution is the Public-Private Partnership model in
which the duties bestowed upon the state like living conditions, health care,
medical services, sanitation, placement for prisoners can delegated through a
well-defined contract to private companies based on their skills and expertise.
It may lessen the burden on the government and increase the efficiency of the
prison by adopting this system. This concludes the complete privatisation of
prisons donít help in addressing the existing problems and, thus, arenít the
answers to Indiaís prison problems.
- Prison Act, 1894
- Schedule VII, The Constitution of India
- (1997) 2 SCC 642
- (1978) 4 SCC 494
- 178 F.3d 497, 500 (7th Cir. 1999)
- (1995) 5 SCC 326
- Sanjay V. State, CRL.A.600 of 2000, (Delhi H.C.) (Unreported)