Our prisons are in an abysmal state. Privatizing them can only be an improvement.
This is one of two pieces in a double-header on privatising prisons in India. Read Alok Prasanna Kumar’s counterview here.
At the ‘India PPP summit 2017’ last week, Amitabh Kant, Niti Ayog CEO, suggested that our infrastructure needs more Public Private Partnership (PPP). Mint reported him as saying “Government is incapable to handle the operation and maintenance of infrastructure projects.”
The last decade’s experience with PPPs in transport has been a mixed bag at best: Delhi’s airport express metro saw a bitter divorce, and in the custody battle each parent seemed eager to hand the baby over to the other; projects have gone way over time and cost budgets; and many private players gone into insolvency. Our major airports, though, saw a major upgrade, but not without very public spats about revenue shares.
Amitabh Kant pre-empted this historical recall by underlining that the private sector needs to do its due diligence, avoid aggressive bidding, and ensure that contracts are better understood. But he didn’t stop there, and suggested that “the privatization for operation and maintenance should be….. extended to jails, schools and colleges.”
For a libertarian like myself, this last assertion was challenging. The government – in the view I have closely held – has to take sole responsibilty for the judicial system, along with policing and defence. Schools and colleges are a ideological no-brainer, quite apart from the fact that Indian Universities are on a steady decline, and that government schools have gotten so bad that you can’t give that education away for free.
But jails? The tail-end of the judicial system, itself at the heart of property rights and personal liberty, the cornerstones of libertarian belief?
I think this system deserves some unpacking. At the front end are the charge-sheeting and investigating processes, the domain of the police. The assumption that a government monopoly delivers impartial process at the front end is severely tested in the Indian context, but viable alternatives seem difficult to construct. Ditto for the courts, which are intended to hear both sides with the impartial bandanna firmly tied on, and pronounce fair judgement, in the letter and spirit of the law.
Where such judgement envisages imprisonment, jails are the mechanism that delivers the incarceration. Two-thirds of our jail occupants are under-trial, about the highest ratio in the world. If our courts were better staffed and run, this should reduce the load on the penal system. Over-crowding would, presumably, reduce. Perhaps rehabilitation and counselling would improve, and the number of repeated convictions (recidivism) would also go down. Instead, though low by international standards, recidivism in Indian jails has been climbing since 2011.
Meanwhile, our jails are something of a mess. In the oft-cited ‘Ramamurthy vs. State of Karnataka’ judgement of 1996, the Supreme Court identified nine major problems with our jails, including over-crowding, torture and ill-treatment, neglect of health and hygiene, and (I love the way this is phrased) “prison vices”.
Nothing has changed – according to the National Crime Records Bureau (NCRB), our prisons have an occupancy of over 114%. In our largest state, Uttar Pradesh, the figure is 169%. Staff shortages, averaging 33%, are endemic, and in Delhi’s Tihar jail, the figure is 50%. Food and hygiene standards range from tolerable to sub-human.
Corruption in our jails is rampant. Hearsay apart, a citizen reporter in Maharashtra submitted videos to the Anti Corruption Bureau of prison officials demanding bribes for allowing prison visits. The favourite “Get out of jail, and into hospital” card has a going price. Mobile phones and weapons are available for a fee. And for a couple of crores, you can even get your own kitchen going. This July, the DIG of prisons Karnataka, D Roopa, was abruptly transferred for suggesting that Sasikala, Jayalalitha’s close associate, had dedicated catering inside Bengaluru’s central jail.
Under-resourced, and abysmally run, our jail system, like much else, is in radical need of an overhaul. Financial, personnel, and managerial resources need to be deployed to improve living conditions inside jails, and reduce the arbitrariness of service delivery. Resource constraints apart, government capacity in every sphere is severely limited, and I don’t see change without external inputs.
Over the last two decades, we have seen government delivery replaced, wholly or largely, by private service providers in several sectors: telecom, aviation, electricity distribution, motor vehicle licencing, and passport issuance. In each case, service delivery standards have gone up, vastly. The government had no business being in the first three; but the last two, it could be argued, come close to being core governmental functions. Yet, by retaining control over records systems and the proverbial rubber stamp, our government seems to have found a private-public partnership that satisfies their need to retain control.
All analogies break down when you stretch them too hard, but I would submit that the bulk of the prison function could be privatised for the benefit of all parties concerned. Most of it is really a mass-market hostelry, without even the need for the service staff to smile at the clientele. There is little to suggest, from the Ashoka hotel to railway retiring rooms, that the government is especially skilled at delivering either quality or cost efficiency.
The US has substantial experience with privately run jails, and the move was largely driven by the desire to bring costs down. There are studies that serve both sides of the debate, so the jury is still out on that one. I would focus therefore on service standards, where our public sector is uniformly appalling across verticals. Much of this is due to incentives, where the private entrepreneur has the economic incentive to serve customers well, if he wants them to return. In jails – private or government – this incentive has to be replaced by minimum acceptable standards, which need to be set by societal norms. I believe that if the government has to monitor these, rather than deliver and conform, adherence has a better chance. This requires that well-defined service delivery standards, are built into careful contracts. This way, poorly performing contractors can be outed, and ousted, unlike government functionaries, who have employment and rentier income for life.
Similarly, I believe that the security function could be equally well-served by the private sector, with clear staffing norms, and monitoring systems. Corruption by guards is better tackled by termination of the contractor than by the current system, where penalties, if any, are incurred by the smallest fish in the system, while the bulk of spoils flow to the top. Nevertheless, if the consensus is that security is better handled by our police, or the CISF, I wouldn’t overly debate the point.
In discussions I have been having on this matter, some friends have been very exercised by the fact that a large US corporation was found to have bribed judges to deliver sentences that increased the flow of inmates into a youth correctional facility. This, they believe, is the clinching argument against privatisation of jails. I am not convinced.
Fistly, a system needs more ‘customers’ when it has excess capacity. Indian jails have the opposite problem.
Secondly, our judges are already crowding prisoners to our jails by not delivering sentences. Our figure of 69% under-trials compares with 20% in the US, and 11% in Japan. This is a real human rights problem of enormous proportions, and needs immediate judicial reform. The US experience is a useful red flag that we need to build into policy, if we privatise jails. Meanwhile, we must not fall into the common public policy trap of allowing the perfect to become the enemy of the good.
The focus now needs to be on the crowding of our jails, and the living conditions of our prisoners. This is what needs to be tackled by redesigning delivery mechanisms. If private management can ameliorate conditions for our prisoners, let not a state-centric ideology throw the prospect of change out for 400,000 citizens of our nation.