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Is Privatization Of Prisons A Solution To Rotting Prisons Of India?

A prison is a place where lawbreakers are confined as a form of punishment where they are denied various freedoms. Salmond's 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 Government 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 prison system.

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:
  1. overcrowding
  2. delay in trial;
  3. torture and ill treatment;
  4. neglect of health and hygiene;
  5. insubstantial food and inadequate clothing;
  6. prison vices;
  7. deficiency in communication;
  8. streamlining of jail visits; and
  9. 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 prison size.

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 v. Litscher[viii], the court briefly discussed the exercise of governmental power by private entities. It held that:
We cannot think of anyprovision 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.

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 bureau.

A recent memo of the US Department of Justice[ix] highlights a shift from private prisons to state owned prisons. It reports Private 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 Department's Office of lnspector General, they do not maintain the same level of safety and security.

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. 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 can�t 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 prisons� maintenance and administration to private entities is not compatible in our country.

A famous case in Israel, the Academic Centre for Law and Business v. Minister of Finance, 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 citizen's 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 can't 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 don't 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 can't 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. It's 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 Kids for Cash [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:
  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. The MHA has advised to adopt the following resolutions for better prison administration viz.:
    1. Video Conferencing facility in all prisons
    2. All vacancies in the prison department to be filled up expeditiously
    3. Prisons to have Welfare wing, correctional and probation services
    4. Adopting the provisions of Prison Manual, 2016.

  8. 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 in prison.

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.

In my 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 don't help in addressing the existing problems and, thus, aren't the answers to India's prison problems.

  1. Prison Act, 1894
  2. Schedule VII, The Constitution of India
  3. kant/articleshow/59782227.cms
  4. (1997) 2 SCC 642
  5. (1978) 4 SCC 494
  8. 178 F.3d 497, 500 (7th Cir. 1999)
  14. (1995) 5 SCC 326
  16. Sanjay V. State, CRL.A.600 of 2000, (Delhi H.C.) (Unreported)

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