Privatization of Prisons and the Constitution in India

By Yagnesh Sharma



India is viewed as an emerging superpower in the world that we live in today, and one of the major reasons for this status of India is attributed is to the sheer workforce that is translated to the population of the country. This population, however, brings its own problems. While India grows by leaps and bounds in the domain of international relations, economic power and military might, several basic issues that need to be addressed within the country have gone unanswered over the past several decades. The biggest of these issues is the law and order situation of the country. While India has a rather elaborate framework of legislations to cover various areas of law, nothing has been able to answer the rate of crime and hence the number of criminals in the country. As a result, the pendency of matters in all courts across the country has continued to increase. But what is forgotten is the growing number of prisoners in the prisons of the country and the situation arising from the same. The Supreme Court itself has gone on to comment on the growing number of prisoners and the below-par conditions that exist within these prisons in India[1]. The biggest problem that can be seen to be coming across the prison system is the pressure on the officials to accommodate the growing number of prisoners and therefore forgetting to ensure the rights of the prisoners in such situations. At this point, to bring in the idea of private prisons in India is viewed by certain sections as a major improvement to the prevailing prison system in India and has even been voiced as being necessary. The present government at the centre is pushing for privatization. At the forefront of this push, the plans are being laid down by the NITI Aayog. It was perhaps not too much of a surprise when Amitabh Kant, the NITI Aayog CEO recommended that “jails, schools and colleges” also be “handed over” to the private sector[2]. The choice of the metaphor suggests that he isn’t talking about allowing private entities to perform these functions alongside government but for government to totally get out of running prisons, schools and colleges.


The Indian Constitution allows for economic freedom to all in provisions held in the form of fundamental as well as constitutional rights. The Supreme Court, which is the interpreter of the constitution and helps the document written in 1949 to reconcile with contemporary times has stated in Akasi Pradhan v. Orissa[3] that laws made for creation of state monopoly should be presumed to be in the interests of the general public. This line of reasoning was adopted in support of nationalization and privatization can be seen as the other to it. Furthermore, in Delhi Science Forum v. Union of India[4], the Supreme Court went on to say that the provisions regarding economic activities in the post-New Economic Policy era are well established and have gone on to say that all such questions can be answered by the parliament. Therefore, it can be seen that the Supreme Court has interpreted there to be no issues in any economic policy taken up by the government with the parliament as long as it does not go against the express provisions of the Constitution. However, the basic argument against any such move would be that certain essential state functions, like that of the prison system, has to be handled by the state and cannot delegate these functions to a private party irrespective of the gains that might come out of such privatization.


The most apt contemporary issue to relate to India’s situation in regard to private prisons would be the decision arrived at by the Israeli Supreme Court with regard to a private prison. The Israeli Supreme Court said that the execution of governmental powers by any staff employed by private profit-making organizations would lead to the violation of the basic rights of these prisoners. The Israeli Supreme Court, however, didn’t touch upon the issue of privatization of core powers[5]. Critics have noted that the absence of this point goes to show that this argument holds little ground in the contemporary world. Transferability of state function can exist as long as the basic rights of prisoners are protected. If this is made clear in the contracts with private owners, then the courts won’t have any ground to strike it down. That falls in line with the reasoning in India that the procedure to be followed should be fair, just and reasonable when power is transferred to private players. Even though the transfer of power to private players when it comes to prisons has not been initiated, but such transfer would be valid if the effective control through policies and regulations is maintained with the state.


The debate over the essential functions of the state is a permanent stalemate. It harbors upon values more than anything else and those against the privatization of this coercive power of the state will never be in favor of it based on the set of values they argue upon. However, another fundamental argument that is brought up is that of sovereignty and how privatization of prisons will be in breach of this sovereignty of the states. But upon reference to a decision of the Supreme Court of Philippines[6], some very pressing arguments can be deduced. In the decision, the court said that while taking into account the question of sovereignty a country cannot be deemed to be existing in a vacuum and if a state wishes to voluntarily delegate some of its sovereign charges, it can do so. They may do so for greater benefits arising out of the same for the state. However, various scholars speak contrary to this and say functions such as putting someone behind bars, to deprive citizens of liberty or to use coercive power against them are simply not delegable. But a distinction between allocation and administration of punishment needs to be drawn[7]. As long as the state allocates the punishments and adjudicates upon the rights of its citizens, and leaves the carrying out of such sentences to private forces which work under-regulated frameworks and the close watch of the government, it makes sure that the punishment so allocated by the state is carried out with proper regard to due process of law[8].


While the public constraints would be generally removed when privatization is conducted, it leads to the question of the removal of public immunities in such areas as well. The state can’t just be viewed as a coercive authority as was the case in the previous centuries. The state can only exercise authority via its officers. States have slowly distanced themselves from welfare activities for the creation of public corporations which would operate according to business principles and be separately accountable.

The minority view in Zee Telefilms Ltd. v Union of India[9] says that duties performed that are solely private in nature cannot be open to writ jurisdiction. However, every private entity performing governmental functions like prisons has been recommended to be included under the purview of writ jurisdiction. When it comes to prisons being privately operated, in the US, the due process clause is implicit in the law of the land while being explicitly mentioned in private prison contracts. The same could be done in India.


The economic implications, present prison scenarios of India and the international environment in regard to privatization of prisons points towards there being greater benefits out a system that privatizes prisons. However, there are multiple problems that also arise in this situation. In a country culturally and demographically diverse like India, the problems of privatization will have to be dealt with strict and effective measures by the government. As mentioned previously, while the government in India has up till now never shown any inclination towards the privatization of prisons, the recent privatization push of the incumbent central government and the comments made by the CEO of the NITI Aayog portray that it may not be a far reality anymore. In the question of the constitutional validity of such a move, it would be difficult for the courts to find a reason to scrap any legislation made by the Parliament on the ground of civil liberties or essential state functions as portrayed above. There is great scope in India for privatization of prisons, with the overcrowded and undermanned prison system and the high pendency of cases. Therefore, there should be a dedicated committee deputed by the government in order to look into the overall viability of the plan for India and the best possible models that can be constructed to make sure that even when privatized, prisons of India treat prisoners with dignity and provide them with a mandatory quality of life and fulfill all of their basic rights.

[1] Shatrughan Chauhan v. Union of India, 2014 (1) SCALE 437.

[2] Alok Prasanna Kumar, Don’t Privatize Our Prisons, Pragati (August 28th 1:00 PM)

[3] Akasi Pradhan v. Orissa, 1963 AIR 1047.

[4] Delhi Science Forum v. Union of India, 1996 SCC (2) 405.

[5] Barak Medina, Constitutional limits to privatization: The Israeli Supreme Court decision to invalidate Prison Privatization, 8 International Journal of Constitutional Law690–713 (2010)(August 28th 10:00 PM), .

[6] Tanada v. Angara, 272 SCRA 18.

[7] Flagg Brothers,Inc. v. Brooks, 436 U.S. 149(1978).

[8] Jordan King (et al), Private Prisons: An Evaluation Of Economic And Ethical Implications , Wharton PPI ( August

27th, 9:40 PM) .

[9] Zee Telefilms Ltd. v Union of India , (2005) 4 SCC 649.

[The author is a second-year student pursuing B.A. LL.B (Hons.) from the Maharashtra National Law University, Mumbai with a keen interest in criminal law and prosecution.]


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