Open Access Research Article
PRIVATISATION OF PRISONS: AN EXAMINATION AND AN ANALYSIS TO UNDERSTAND IT’S APPLICABILITY IN INDIA
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PRIVATISATION OF PRISONS: AN
EXAMINATION AND AN ANALYSIS TO UNDERSTAND IT’S APPLICABILITY IN INDIA
AUHORED BY - K. SAI KARTHIKEYAN
ABSTRACT
The start of
the 21st century has given rise to new ideologies, with liberalization and
globalization being prime examples. These concepts have led to the idea of
privatization in many fields, including healthcare, education, and even
military operations. One important development has been the increasing
distinction between business and state intervention, with governments avoiding
direct control over businesses for various reasons. One such area is crime
management and law enforcement, which includes prisons as a vital component.
Prisons are a significant expense for governments, draining valuable resources
without generating any returns. This has sparked interest in the concept of
private prisons.
The use of
private prisons dates back to the 18th century in England and Wales. The United
States followed suit and opened its first private prison in 1984. Since then,
other countries such as Australia, New Zealand, and South Africa have also
adopted this model. However, private prisons have faced criticism for
prioritizing profit over rehabilitation and safety, resulting in allegations of
human rights abuses and corruption. Consequently, some countries have started
phasing out private prisons in recent years.
In the United
States, the use of private prisons has been a divisive issue, with several
states and the federal government either completely or partially phasing out
their use due to concerns over safety, accountability, and cost-effectiveness.
The COVID-19 pandemic has further highlighted issues with private prisons, with
reports of inadequate healthcare and safety measures leading to outbreaks in
several facilities. Despite this, the private prison industry continues to
operate in several countries, with some arguing that it provides a
cost-effective solution to the problem of prison overcrowding.
This work of
research aims at the understanding of the concept and feasibility of private
prisons in India given the large amounts of overcrowding possessed by the same.
SYNOPSIS
Introduction:
One
important development has been the increasing distinction between business and
state intervention, with governments avoiding direct control over businesses
for various reasons. One such area is crime management and law enforcement,
which includes prisons as a vital component. Prisons are a significant expense
for governments, draining valuable resources without generating any returns.
This work of research wishes to understand rthe emergence of the emergence of
the trend of private prisons
Literature
review:
There
has been a thorough reference made to various studies related to the
effectiveness of incarceration and the case studies of various countries has
been done and the data of the respective countries’ official records has been
taken and has also been duly cited. There also have been various studies which
have looked at the feasibility of private prisons but they have not looked at
the application from an Indian requirement. Those which have referred to India,
did not look at the situation with the view of the combatting the issues faced
by Indian prisons but with the view limited to the lack of possibility of
engaging a private manager to resolve the sane due to the lack of faith on
execution.
·
Turgumbayev, Y and others, “Examining the
Nexus between Involvement in Crime and Delinquency and Being Processed through
the Criminal Justice System” [2021] Journal of Crime and Justice. Excerpt “The criminal justice system is designed to
detect, apprehend, punish, and rehabilitate criminal offenders. Precisely how
effective the criminal justice system is at achieving these goals is not
entirely known. The current study sought to add to this gap in the knowledge
base by examining the connection between self-reported crime and delinquency
and the probability of being arrested, convicted, sentenced to probation, and
incarcerated.” The abovementioned work of research does focus only on the
delinquency and criminal justice system internationally. The researcher has
used this excerpt for the understanding of the components of a criminal justice
system and in understanding the effects
of incarceration.
·
Harding DJ and others “A
Natural Experiment Study of the Effects of Imprisonment on Violence in the
Community”. It was published in 2019 in the journal of “Nature Human Behaviour”
Excerpt: “This study’s objective was to examine
the effect of imprisonment on violent crime in the community among individuals
on the policy margin between prison and probation sentences. Drawing on data
from a population-based cohort of individuals convicted of a felony in Michigan
between 2003 and 2006 (n?=?111,110)
and followed through June 2015, we compared the rates of commission of violent
crime committed by individuals sentenced to prison with those of individuals
sentenced to probation using a natural experiment based on the random
assignment of judges to criminal cases. Being sentenced to prison had no
significant effects on arrests or convictions for violent crimes after release
from prison, but imprisonment modestly reduced the probability of violence if
comparisons included the effects of incapacitation during imprisonment.” This work of research has been used for the
understanding of the demographics and the utility of imprisonment on crime in
which it was found that there was not much significant difference in the
punishment induced. The work of research was inferred to by the researcher to understand
the effectiveness of the form of punishment and has been used in the
formulation of recommendations.
·
Wermink H and others, “The
Incapacitation Effect of First-Time Imprisonment: A Matched Samples Comparison”
(2012) 29 Journal of Quantitative Criminology 579. Excerpt: “A growing
literature has become attentive to the societal consequences of prevailing
imprisonment policies, and cautions that the social costs of prison growth
might outweigh the crime-control benefits. Two pieces of evidence support this
contention. One prominent line of research observes that confinement worsens an
individual's capacity to adopt a law- abiding lifestyle upon returning to the
community (Hagan and Dinovitzer 1999; Uggen et al. 2006; Western 2006). Such
"collateral consequences" of incarceration include labor market
stigma (Pager 2003), slowed wage growth (Western 2002), and marital disruption
(Apel et al. 2010), which have the potential to exacerbate long-term criminal
offending (Nagin et al. 2009; Wermink et al. 2010). A second line of research
observes that prison growth leads to the confinement of individuals who pose
steadily lower risk to society, on the margin and all else equal (Donohue 2009;
Donohue and Siegelman 1998). Consistent with the "law of diminishing returns,"
recent studies of prison expansion show substantial erosion in crime control
over the last three decades as the scale of incarceration has grown (Johnson
and Raphael 2009; Liedka et al. 2” The inference is made for the understanding
of the history of private prisons and the understanding that in recent times
there has been more than enough income sources to private jails or there is a
scope for the same for the jails. The
inferences are also reflected in the recommendations which have been formulated
·
Cabral S and Saussier S, “Organizing
Prisons through Public-Private Partnerships: A Cross-Country Investigation”
(2015) 10 BAR - Brazilian Administration Review 100. Excerpt: “Hence,
in comparison to
the two other
cases, the Brazilian
case suggests that
private participation in this sector might lead to lower costs and
superior quality performance indicators. In the Brazilian case, there are
two possible situations that can increase the profit
margins of the private operator:
(a) a reduced number of inmates under its responsibility; and, (b) the implementation of optimization efforts.
Naturally, the price-cap
contract mode would
potentially stimulate efforts towards cost reduction at the expense
of quality (Hart et al., 1997).” The following excerpt has been used for the
understanding of the shortcomings of the privatization of the prisons whereby
this work of research does not elaborate on the tentative method to overcome
the same, this work of research attempts on overcoming the same.
·
The
NCRB Annual report of 2019-20 and the Annual Prisons Statistics of 2021
published by the NCRB have been used to draw the inferences to the overcrowding
of ajils.
Research
Questions:
1)
Whether private prisons in India are feasible?
2)
Whether there should be eligibility criteria if private prisons can be used in
India?
Objective:
To
understand the concept and issues posed by private prisons with the application
in India with a thorough analysis of international cases
Scope
of the study:
The
scope of the study is limited to the concepts understood and the recommendations
given regarding the application of private prisons in India
Research Methodology:
The
research work undertaken has been doctrinal in nature. Various cases studies
and data have been referred and duly
cited.
Citation:
The OSCOLA form
of citation has been used for the project.
Hypothesis:
There is a feasibility of private prisons to bridge the issues faced by
the Indian jails for the collective benefit of undertrial prisons and
other parties who are involved and hold
a stake in the system. There also have their fair share of the drawbacks which
should be looked at with caution before application
Chapterisation:
Chapter 1: Introduction:
This chapter deals with the understanding of prisons and criminal
justice system with a brief introduction of the concept of private prisons
Chapter 2: International Cases:
This chapter examines the application of the private prisons in the
countries of Brazil, United States of America and the United Kingdom
Chapter 3: Application In India:
This chapter deals with the application of private prisons with the
examining of the benefits as well as issues and an analysis of the same
Conclusion:
The recommendations have been analysed with the overall summary of the
work of research
CHAPTER 1: INTRODUCTION
The criminal justice
system is a vital aspect of any society, as it ensures that law and order are
maintained, and justice is served. It is a combination of different agencies
and processes that work together to protect individuals from harm, provide
deterrence for criminal activities, and ensure that individuals who commit
crimes are held accountable for their actions. The components of a criminal
justice system can be broadly categorized into three main parts: law
enforcement, the courts, and corrections.[1]
Law enforcement agencies
are the first line of defense in the criminal justice system. They are
responsible for detecting and preventing crime, as well as apprehending those
who have committed crimes. Police officers, sheriffs, and other law enforcement
officials are part of this component. They are responsible for investigating
crimes, gathering evidence, making arrests, and ensuring public safety. Law
enforcement agencies also work in partnership with other agencies to prevent and
respond to emergencies, such as natural disasters or terrorist attacks.
There are several
different types of law enforcement agencies, including local, state, and
federal agencies. Each agency has its own jurisdiction, and they work together
to maintain law and order in society. Law enforcement agencies also use
different strategies and tactics to prevent crime, such as community policing,
intelligence gathering, and crime mapping.[2]
The courts are
responsible for interpreting the law and determining whether an individual is
guilty or innocent of a crime. This is the second component of the criminal
justice system. The court system is responsible for ensuring that due process
is followed, and that the rights of the accused are protected. The judiciary is
also responsible for sentencing and punishing those who are found guilty of
crimes.
The court system or the
judiciary is an essential part of the criminal justice system, as it ensures
that individuals are held accountable for their actions. However, the court
system can also be complex and time-consuming, with cases taking months or even
years to resolve. The judiciary also faces challenges such as overcrowding,
delays in processing cases, and lack of resources.
The third component of
the criminal justice system is corrections. Corrections implement the sentences
handed down by the courts. This includes prisons, jails, probation, and parole.
The objective of the correctional system is to rehabilitate offenders and
prepare them for re-entry into society. This is achieved through educational
and vocational programs, as well as mental health and substance abuse treatment
programs. Corrections also supervise offenders who have been released back into
the community to ensure public safety.
The correctional system is
an essential component of the criminal justice system, as it aims to reduce
recidivism rates and ensure that offenders do not re-offend. However, the
correctional system also faces challenges such as lack of resources,
overcrowding, and high costs. There is also ongoing debate about the
effectiveness of the correctional system in achieving its objectives.
India has one of the
largest prison populations worldwide, with an astonishing number of undertrial
prisoners awaiting trial for prolonged periods. The situation is further
compounded by the overcrowding in Indian prisons, which has reached alarming
levels. According to the National Crime Records Bureau, as of December 2019,
there were over 4.78 lakh prisoners in Indian jails, of which almost 68% were
undertrial prisoners. This implies that over two-thirds of the prison
population in India is awaiting trial and has not been convicted of any crime.[3]
The main reason for this
alarming trend is the slow pace of the Indian judicial system. The backlog of
cases in Indian courts has reached mammoth proportions, with over three crore
pending cases as of December 2020.[4]
Consequently, many undertrial prisoners are confined in jail for years,
awaiting their cases to be heard. This delay is often due to a lack of
resources, insufficient number of judges, and other administrative issues.
The issue of undertrial
prisoners and overcrowding in Indian prisons is a matter of concern for the
government and the judiciary. The overcrowding in Indian prisons exacerbates
the problem of undertrial prisoners. The occupancy rate in Indian prisons is
over 118%, with some jails being filled to 150-200% of their capacity.[5]
Overcrowding not only violates the rights of prisoners but also creates
unhygienic and inhumane conditions, making it challenging for authorities to
provide adequate food, healthcare, and other essential facilities to inmates.
Moreover, the problem of
undertrial prisoners is not limited to the violation of the rights of the
prisoners alone. The prolonged detention of undertrials violates the
fundamental principles of justice and the presumption of innocence until proven
guilty. It also leads to the loss of productive years of the undertrial
prisoners, affects their livelihoods and families, and creates a sense of
injustice and disillusionment in society.
Various measures have
been taken to address the issue, including the use of technology to expedite
trials, the establishment of fast-track courts, and the release of undertrial
prisoners on bail or personal bonds. However, more work is required to tackle
the systemic issues that underlie the problem. The pace of the Indian judicial
system and the shortage of resources require immediate attention. The
government must also provide adequate funding and resources to the judiciary to
address the issue of undertrial prisoners and overcrowding in Indian prisons.
This work of research
shall focus only on the prisons aspect of the larger issue with the examination
of the feasibility of privatisation of prisons for the Indian context. But what
roles should a prison be able to play in the criminal justice system at an
outline to set a baseline as for the requirements needed. Imprisonment is a
common form of punishment used in every country across the world. It is often considered
the most severe penalty that courts can impose. Since the Second World War,
levels of imprisonment around the world have increased dramatically, though the
rate of increase varies by region.
While proponents of
imprisonment argue that the sanction of incarceration can be justified by
incorporating many of the differing aims of punishment highlighted above,
namely through its incapacitative and deterrent effect, as well as through its
ability to change and rehabilitate, critics point out that the reality of
incarceration often falls short of these goals. Many individuals who are
imprisoned face poor living conditions, limited access to education and job
training, and other barriers to successful re-entry into society. Moreover, the
use of imprisonment as a punishment has come under scrutiny for its
disproportionate impact on marginalized communities, including people of color
and those with low incomes.[6]
Despite these criticisms,
the purposes of a sentence of imprisonment or similar measures that restrict a
person's liberty are primarily to protect society from crime and to reduce
recidivism. However, achieving these objectives requires more than simply
confining individuals to a cell. Instead, it demands a holistic approach that
takes into account the individual's needs and circumstances, and that seeks to
address the root causes of criminal behavior.
In this context, efforts
to promote alternatives to imprisonment, such as community service, restorative
justice, and diversion programs, have gained momentum in recent years. These
approaches recognize that punishment alone is not enough to address the
underlying issues that lead to crime, and that a more comprehensive response is
needed to achieve long-term public safety.
While there is newer
research which is guiding us in the direction that imprisonment over long terms
has not yielded any huge tangible results for the society. One of the primary
goals of incarceration is to reduce violence. However, despite a significant
rise in the number of individuals being incarcerated since the 1970s, the
impact of incarceration on future violent crime is not yet fully understood.
The study referred draws
on data from a population-based cohort of individuals convicted of a felony in
Michigan between 2003 and 2006 (n = 111,110) and followed through June 2015. By
comparing the rates of violent crime committed by individuals sentenced to
prison versus those sentenced to probation using a natural experiment based on
the random assignment of judges to criminal cases, the study sought to
determine the effect of incarceration on violent crime.[7]
The results demonstrated
that being sentenced to prison did not have significant effects on arrests or
convictions for violent crimes after release. However, the study found that
imprisonment did modestly reduce the probability of violence if incapacitation
during imprisonment was taken into account.
These findings suggest
that, for individuals who are at the current policy margin between prison and
probation, incarceration is not an effective long-term intervention for
preventing violence, as it has, on balance, no rehabilitative or deterrent
effects after release.
But this does not at the
fundamental level devaluate the need for prisons. But what if the said prison
system in any country is not effective and efficient? Can the respite be found
in the method using which most governments bring about profits to their loss
making enterprises? Is privatisation the answer to the woes of the incapacity
of the prison system for bringing about metamorphosis in recidivist
behaviour? But how can or rather why
should prisons be privatised? What net result would it yield in the first place
for a mismatch of calculation can be proven to be disastrous for a society and
this disaster would take a considerable amount of time to recover from as this
will singlehandedly cause irreparable damage to the moral fabric and material
safety of the individuals who live in a said state. To understand the affects,
it should first be understood if such attempts have taken place prior and if
they have, what result did they yield at the end of the day? Which countries
are in use of this system?
CHAPTER 2: INTERNATIONAL APPLICATION
As on the given date,
countries such as New Zealand, USA, UK, Japan, Peru, Mexico and Brazil are in
practice of this system. Richard Burgon, the spokesperson for the Labour Party
in the United Kingdom, described the use of human incarceration for profit as
immoral. Although criminal justice is generally regarded as a function of the
state, private corporations have significant influence in the carceral system.
The process of prison privatization is straightforward: companies make
contracts with their respective governments to manage correctional facilities
in return for payment from the state. They profit by charging more than the
cost of running the facility but less than it would cost the government to run
its own public facilities. The story of prison privatization in the United
States dates back to before the end of slavery. One example of early prison
privatization occurred in 1844, when Louisiana turned over the operations of
its penitentiary to a private company that used the facility as a factory where
prison laborers were forced to manufacture clothing. Today, prison labor is not
the only way that businesses profit off the carceral system. They also make
money by operating the prisons themselves.[8]
With the increasingly
punitive sentencing policies passed during the 1980s as part of the War on
Drugs in the Unites States of America, the incarcerated population grew, and so
did the demand for prisons. By 2015, the incarcerated population had grown from
500,000 in 1980 to over two million. Rates of imprisonment continue to diverge
along racial lines, with African Americans imprisoned at a rate over five times
that of whites. In response to the rapidly expanding number of prisoners, the
government turned to the private prison industry, which argued that it could
house more people at a lower cost. Thus, in 1984, CoreCivic opened the first
private prison in Tennessee, with sixty-six more private prisons opening in the
following six years alone.
The story of modern
prison privatization in the United Kingdom began in the 1980s, when the ruling
Conservative Party saw privatization as a solution to rising incarceration
rates, prison expenses, and the overall decline in the quality of public
prisons. They believed that private prisons would be more cost-effective and
provide higher-quality services.
Before constructing the
first private prison in Britain, a parliamentary committee researched prisons
in England, Wales, and the United States, compiling their findings in a 1987
report that endorsed prison privatization. Their recommendations came to fruition
in the early 1990s, as sentencing policies grew increasingly strict under
Conservative Prime Minister John Major, who argued that "society needs to
condemn a little more and understand a little less."[9]
In this era, the first
private prison in the United Kingdom, known as Her Majesty's Prison Wolds,
finally opened in May 1992. Following additional legislation, private companies
were eventually allowed to sign contracts with the government that permitted
them to construct and operate prisons in the United Kingdom. Prison
privatization continued to expand even after the Labour Party came to power in
1997 under Prime Minister Tony Blair. During his campaign, Blair pledged to be
"tough on crime and tough on the causes of crime." Being "tough
on the causes of crime" meant implementing social programs that would
prevent crime from occurring in the first place. Meanwhile, the "tough on
crime" stance involved a more punitive approach, such as strengthening
policing.
But what about the
effectiveness of the said method of deterrence and reform? Well, the prisons in
Brazil which have been privatised have. Different story to tell altogether.
Brazil is a country with high crime rates, crime growth rates and crime per 100
people. It has so happened in Brazil that there have been massacres reported
from the private prisons of Brazil also. The 2014 report published by the
Prison Ministry is based on visits to eight privatized prisons in six different
Brazilian states, managed by five different companies. According to the report,
the privatization of prisons has not benefited public administration. The
allocation of resources to privatized units reduces the amount transferred to
publicly-run prisons. The study also suggests that the lack of alternative
criminal policies has resulted in the privatization of prisons, which is less
favorable for those in conflict with the law. The report further highlights the
negative effects of privatization on the staff of privatized prisons, such as
high turnover, low wages, and minimal qualifications required for work in
prisoners' custody service. This leads to a lack of experienced staff, which
can negatively impact the safety of both staff and prisoners.[10]
Moreover, the report
considers the lack of transparency in the process of privatization of prisons,
which can result in a lack of accountability for the companies managing the
privatized prisons. Additionally, the report notes that the rigid discipline
observed in all privatized units has led to restrictions on the rights of
prisoners under the Law on Sentence Enforcement. The report suggests that this
kind of discipline is not conducive to rehabilitation and can lead to increased
recidivism rates.
How is the American
experience then? The prison-industrial complex (PIC) refers to the political
and financial interests involved in the rapid expansion of the US inmate
population, particularly in the context of private prison companies and
businesses that supply goods and services to government prison agencies.
According to this concept, not only the justice system benefits from
incarceration, but also construction companies, surveillance and corrections
technology vendors, companies that operate prison food services and medical
facilities, corporations that contract cheap prison labor, correctional
officers unions, private probation companies, lawyers, and the lobby groups
that represent them.
Moreover, there are
interest groups who prioritize financial gain over rehabilitating criminals in
their interactions with the prison system. The issue of sexual assaults and
violations of privacy in American private prisons is a growing concern,
especially for female prisoners who are at a higher risk of experiencing sexual
assaults or privacy violations by male prisoners. This is due to the lack of
proper safety measures and inadequate training of staff in private prisons.[11]
Female prisoners are
subjected to examinations and pat-down searches by male staff members, which
can be a degrading and humiliating experience. These searches are often
invasive and can leave female prisoners feeling violated. The absence of female
staff members in female prisons further exacerbates the situation, violating
the privacy of female prisoners and putting them at risk of physical and
emotional harm.
The higher rate of sexual
assaults and privacy violations is attributed to the lack of proper safety
measures and training of staff in private prisons, which are often compromised
due to the profit-driven nature of the business. As a result, corners are cut
in terms of hiring qualified staff and implementing proper safety procedures.
So what is in for the application of India?
CHAPTER 3: APPLICATION IN INDIA
To say that our prison
systems which are run by the government are effective and efficient would be a
long shot from reality as well as imagination as the prisons in India are
imagined and are places of low sanitation, security and hygiene but high levels
of corruptions and predators in prisons. The costs which the country spends on
prisons stands at a meagre 2,106 Crore INR. This has facilitated the
expenditure of the government billing down to about 106-108 INR per day on a
prisoner which has become and is abysmal. The nutritional needs of prisoners
are neglected to say the least, their housing conditions remain to be of that
of cramped and even unhygienic in many places. The sanitation is not healthy by
any means add women do nit have access to quality sanitation needs for their
menstruating periods. The Delhi Commission of Women in an outing to the Tihar
jail had found the usage of open washrooms by the female inmates. There is also
no dearth of corruption In Indian prisons for those privileged and with
political and muscle power. There are multiple instances such as the whitewashing
of the privileges given to Vivekananda Krishnaveni Sashikala popularly known as
VK Sashikala by D. Roopa IPS[12]
who served as the Deputy Inspector General of Prisons in Karnataka where VK
Sashikala was incarcerated and another example could also be the Satyendra
Jain, a politician who was found to have been enjoying the services of a
masseur in the jail where he was housed. Also not to mention the high levels of
over occupancy of Indian prisons and slow the high amounts of undertrial
prisoners.
In many cases, the
incomes sanctioned to the prisons are mostly spent on the inmates alone,
leaving very little to no money for the betterment of jails. While “Prisons”
fall under the category of State. Subjects, it is not clear as to if the state
can privatise prisons or not as it is not a PSU or a public sector undertaking
in any manner per so to say. But the state governments regularly engage in the
issuance of tenders for the services of certain components like the supply
chains to the state prisons. The work of research shall not look into the
process pf implementation of the decision but shall look into the feasibility
and the examination of the idea. There
is nowhere a mention in the Prisons Act regarding the status of the profit
making ability of the state but given the provisions of labour engagement, and
the fact that the prisons shave generated a revenue off 200 Crore INR in 2019
give enough grounds for its transfer by the Home Ministry as a Government
company for its incorporation into the Company Act making it feasible for the
conversion of the same. While the legal
process of conversion in to a company might be a dynamic which should be
managed by the Ministry of corporate affairs, there are also other key issues
which have to be engaged with.
There is also a huge
scope of the income creation form the usage of inmates other than hard labour.
We are presented with the fact that incarceration per say does not decrease the
crime rates and other deviant behaviours seen. NCRB data brings about the proof
that about 70% of all prisoners are illiterate or semi literate giving them a
higher chance of thriving in poverty than in financial welfare.[13]
There also has been a correlation drawn. While there exists enough
criminological literature to prove in theory that crimes are not related to
poverty than the situation in which an individual is present in, The study of
the Pankhurst prisons add on to the same.[14]
A research published in 2005 is of the opinion that the urban and poor classes
of populations have higher chances of encountering crime.[15]
It is also important to
look at jails as reformative structures also. If privatisation is to be brought
in Indian jails, the manager now also has access to individual who potential
has been untapped per say from a professional standpoint. Instead of harnessing
the physical labour alone and also making them work in low income generating
vocations and training them for the same, the private operator can as well
train them according to the needs of the corporation representing there by
enforcing a caveat that an amount of tangible performance might lead to the
employment in the company making the individual a member of the formal economy.
This move has the potential to not only generate profits are relatively lower
expenditures from a salary standpoint but for the prisoner also this brings an
opportunity to work and merge in the formal sector of employment thereby
bringing about certain level of financial security. This will have a multi
level effect from economy to the crime control and harnessing of Human
Resources, this shall be influential. This fulfils the purpose of crime
prevention and also the rehabilitation to the extent of social and financial
security thereby they in itself acting as a deterrent as the exhibition of recidivist
behaviour shall lead to the loss of employment and thereby the security as
well.
But no scheme can be this
perfect and cannot be implemented yet across the world. Privately owned
prisons, such as New York's Auburn and Sing Prisons, have a troubling history
of mistreatment and abuse of prisoners dating back to the 1800s. Consequently,
many prisons were closed due to overcrowding, malnourishment, and frequent
whippings. Unfortunately, these problems still exist today. Although there may
not be frequent whippings, private prisons continue to provide limited services
and lack proper security and inmate monitoring.
For-profit prisons, such
as the GEO Group and Corrections Corporations of America (CCA), have shown
patterns of abuse, especially against juveniles and the mentally ill. The GEO
Group, one of the biggest for-profit prison operators in the world, has been
accused of providing abysmal care to prisoners with serious medical and mental
health needs. Corporate officials with conflicting motives run these prisons
and sacrifice quality of care in their organizations in order to make a profit.
Problems arising in
private prisons are due in part to lack of government oversight and limited
accountability. For-profit prisons hope to generate the greatest possible
profit and do so by any means necessary. Lack of transparency and governmental
regulation encourages corruption in organizations and allows companies to cut
corners in order to boost revenue. Reduced security and inmate monitoring has
led to increased violence in private prisons. In one example in Mississippi, a
group of inmates rioted while taking hostages and killing a correctional
officer. It is important to recognize that private prisons are not the only
solution to the government's inefficiency and inability to operate state
prisons. In fact, evidence has shown that private prisons are not even
producing cost-savings. Cost savings from privatizing prisons are not
guaranteed and appear minimal. So why should we leave inmates at the mercy of
corporate officials who seek huge profits?
Drawing back to the
Indian scenario, there is also a high saturation of the undertrial prisoners
followed by high pendancy in the judiciary. This can be combatted with the
introduction of private prisons. It would be profitable for the company to have
a higher discharge of prisoners to their central work force provided they have
the facility to do so. But how can this be useful in the decrease of undertrial
prisoners? The said management or operator can also engage with lawyers on an
employment or contract basis with the purpose of follow ups and
conclusion/disposal of cases an optimal
Time rate thereby also resulting in the access of legal advice and services.
For the manager, the lower the overcrowding, the better the management. A
fundamental hurdle which lies with the majority of the undertrial prisoners is
the lack of quality legal aid and attention to their needs and this propels
them into perpetuity with their cases and this arrangement of the private
manager shall not only be beneficial for the business of his but also shall be
beneficial to the people who are not fortunate enough for timely legal
attention to receive help.
There is also an issue of
lack of adequate healthcare accessibility and the facilities of health
equipment with request to the prisoners in prisons for women and other inmates
also. Though there are government hospital with their separate partitions for
the prisons, it is not adequate. The overcrowding and lack of management can be
overcome with the expansion of the jail from a physical building perspective
for a price which can be half borne by the state. But why should the corporate
spend on the other half? It has an income derived from the jail and therein
falls a responsibility of theirs to keep the premises clean and safe.
But what about the
constitutional validity of the same? In the case of Israel, there is a judicial
ruling against the implementation of the private prisons which was delivered in
2007. Why was it opposed? It was felt that it was the state’s responsibility
and that no other authority had the power to mete out violence against the
citizens and this should also be kept in mind during the formulation of policy.
The same jurisprudence is also applicable to India.
Keeping this is in mind,
it is important to understand to whom can the power to administrate the prisons
be opened to? Keeping in mind the judicial ruling and the recommendations of
profit making ability, the researcher is of the opinion that the facility to
bid for the operation should be extended without prejudice to any operator with
the rule that they also have a separate company or a wing for prison
administration with lawyers, ex military servicemen or retired police personnel
for the internal maintenance and a retired officer not under the rank of
Lieutenant Colonel or equivalent in the tri services should be heading a prison
fulfilling the roles similar to that of the jailer. There should be
transparency of the happening of affairs in the jails to the government. The violation
of the deal or the finding of lapses should result in the dissolution of the
management of the private partner with the return of the funds of the
government so used for their benefits.
CONCLUSION
This work of research discusses the feasibility of prison privatization
in the Indian context, examining the effectiveness and efficiency of
government-run prisons and the potential benefits and drawbacks of
privatization. The current state of Indian prisons is characterized by
overcrowding, poor sanitation and hygiene, limited access to education and
healthcare, and high levels of corruption. The lack of resources and funding
allocated to prisons in India have resulted in a substandard system that fails
to meet the needs of its inmates or society at large. Privatization is seen as
a potential solution to the issues plaguing the Indian prison system. Countries
like the United States, the United Kingdom, Japan, New Zealand, Peru, Brazil,
and Mexico have implemented prison privatization, with varying degrees of
success. Proponents argue that privatization can lead to cost savings, improved
conditions for inmates, and better access to rehabilitation programs. They also
argue that private companies are more efficient and effective at managing
prisons and that competition can lead to better outcomes. However, critics
argue that privatization can lead to a lack of accountability and oversight,
reduced quality of care, and increased violence and abuse. For-profit prisons
have been accused of prioritizing profits over the well-being of inmates, and
examples of mistreatment and abuse have been reported in privately owned
prisons worldwide. Additionally, the potential for conflicts of interest
arising from private companies managing prisons is a concern.
Despite these concerns, prison privatization may hold potential for
India, as it has the potential to generate income, reduce the number of
undertrial prisoners, improve access to healthcare, and provide employment
opportunities for inmates. However, the process of implementation must be
carefully considered, and the potential risks and benefits must be weighed
before any decision is made.
While it has to be made clear that the Prisons Act as on May 30th
2023 does not have any provision for the privatisation of the prisons in India,
it still does not rule out the applicability of the move for the benefit of the
Indian populous.
The government must ensure that proper regulations and oversight are in
place, and that the rights and well-being of inmates are protected. In
conclusion, the issue of prison privatization is a complex one, with both
potential benefits and drawbacks. While it may hold potential for India in
addressing the issues with its current prison system, it is important to
consider the risks and limitations of privatization. Ultimately, the goal of
any prison system should be to promote public safety, reduce recidivism, and
provide humane and rehabilitative care for its inmates. The policy or doctrine
of laissez faire cannot be applied from a blunt perspective as ti can then also
have a disastrous result on the prisoners who can be subjected to abuse and
unreasonable contract also.
The powers and the terms and conditions of management should be very
strictly and closely be laid down without the scope of any arbitrary terms
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Article Information
PRIVATISATION OF PRISONS: AN EXAMINATION AND AN ANALYSIS TO UNDERSTAND IT’S APPLICABILITY IN INDIA
Authors: K. SAI KARTHIKEYAN
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/05/31
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
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