COMMENTARY

Guidelines for Public-Private Partnership in Prison Management

Vijay Raghavan

A guarded approach must be taken while encouraging the idea of public-private partnership in prisons and correctional administration. Without developing a clearly laid down framework, already provided by a slew of government reports and committees in the past, the PPP model could lead to a backdoor entry for privatisation of prisons in the country.

Vijay Raghavan (vijay.r@tiss.edu) is with the Tata Institute of Social Sciences, Mumbai.

he development of psychosocial services for custodial populations is a direct consequence of a paradigm shift in the understanding of crime causation, whereby the individual alone is no more held responsible for his/her norm or lawbreaking behaviour. It has led to the development of a criminology that f ocuses on psychological, social, economic and political factors as being responsible for deviant behaviour in human beings. This shift has led to a gradual policy change away from torture and debilitating forms of punishment to imprisonment as and not for punishment, more humane custodial conditions, protection of legal and human rights, and finally a focus on retraining and rehabilitation. The case of private participation in social defence or correctional administration arises in this context. We live in an era where outsourcing and public-private partnership or the PPP model is being promoted in all areas of governance as a panacea for ills such as administrative corruption, financial crunch in developing infrastructure and human resources and dealing with labour trouble in the service delivery sector. Discussions on the pros and cons of using the PPP model in criminal justice governance, prison management and correctional a dministration have now reached the meeting and conference rooms of policymakers and academics dealing with these areas. This is a cause for worry. There is a need to develop a clearly laid down framework in this respect before one goes down the PPP road. The PPP model in prisons has to be viewed in the context of the constitutional provisions laid down for protection of l egal rights of prisoners, and the scope of civil society participation in prisons that emerges from court rulings and policy reports. In order to develop a framework for the PPP model in prison management, it is

important to first understand the legal status of prisoners, in terms of their rights and basic minimum standards in prison management, as also the policy developments in this field. The Indian Constitution contains comprehensive provisions to ensure that citizens are treated in consonance with various international conventions such as the Universal Declaration of Human Rights 1948 and the UN Convention of Treatment of Prisoners 1955. A rticles 14, 19, 20, 21, 22 and 39A lay down the overarching principles for all laws and policies enacted by the state and policymakers, in terms of the fundamental rights that must be respected, including when the State restricts or takes away the life and liberty of our citizens. If one looks at specific legislations with respect to prisoners, the Prisons Act of 1894 lays down the basic minimum standards that must be adhered to, when the state takes a citizen into lawful custody. Though an archaic legislation that needs drastic overhaul, the Prisons Act of 1894 lays down conditions for the upkeep and treatment of prisoners and imposes some limitations on custodial authorities to the type of treatment that can be given to those in penal custody. Section 4 provides for proper accommodation for prisoners. Section 7 casts an obligation on the state government to provide for temporary accommodation in case of overcrowding and outbreak of epidemic. Section 13 makes the medical officer (mo) responsible for sanitary conditions in prisons. Section 14 provides that the MO is required to submit a report regarding the mental condition of a prisoner whenever it appears that he is not fit. The Act also provides for separation of male from female prisoners, under trial from convicted prisoners and male prisoners under the age of 21 years from those above 21 years. The various provisions of the Prisons Act are the guiding force b ehind the prison manuals formulated by each state. The Model Prison Manual published in 1970 and again in 2003 have also laid down the guiding principles based on which many states have drafted or upgra ded their respective state prison manuals. What emerges from the above discussion is that certain functions of the state which pertain to maintaining the fundamental

16

january 22, 2011 vol xlvI no 4 EPW Economic & Political Weekly

COMMENTARY

freedoms and the right to life and liberty are sovereign in nature. These functions, also known as the law and order functions of the state, if outsourced, has dangerous implications in terms of the very nature of the state in which we live. It is in line with this thought that there should be a very clearly laid down policy which prohibits outsourcing of basic functions of custody and care in prison management. Services such as security, escort duties, food and medical care should be kept out of the ambit of private players. Any effort to encourage the PPP model in these areas needs to be opposed both on ideological and accountability grounds. The experience of privatisation of prisons in the west, for example the US, the UK and Australia, has become a matter of controversy, particularly from the point of view of prisoners. As Harding (2001: 265) says,
the principal debate revolves around such tangle matters as regime quality, value for money, public accountability and the efficacy of regulatory procedures, and whether the private sector has improved standards and outcomes in the prison business as a whole.

The Supreme Court and various high court rulings on prisoners rights have inter preted the laws of the land based on writ petitions and public interest litigations (PILs) filed from time to time on the issue. In the case of Patnaik (All India R eporter 1974 Supreme Court 2092), j ustice Chandrachud held that
convicts are not, by mere reason of the conviction, denuded of all the fundamental rights which they otherwise possess. A compulsion under the authority of law, following upon a conviction, to live in a prison-house entails by its own force the deprivation of fundamental freedoms like the right to move freely throughout the territory of India or the right to practice a professionBut the Constitution guarantees other freedoms like the right to acquire, hold and dispose off property for the exercise of which incarceration can be no impediment.

Similarly, in Writ Petition No 1822 of 1985 of the AP High Court, while considering the question of wages for work done by prisoners, said that
In the general realm of reason too, one can find no support for the view that the State can deny payment to the prisoners work or that the State is under no obligation to p rovide any work to the prisoner. Idleness, particularly forced idleness, is sure to d estroy a mans life and personal liberty.

In the landmark judgment in the Hussainara Khatoon case (1979 Cr LJ 1045) and earlier in Hoskot (AIR 1978 SC 1548), the SC declared that the right to free legal services is an essential ingre dient of r easonable, fair and just procedure implicit in the right to personal liberty under A r ticle 21. In the Francis Coralie case (AIR 1981 SC 746), the court observed that the right to life for prisoners includes the right to live with human dignity and includes adequate n utrition, clothing, shelter, facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing with fellow human beings. These judgments make it amply clear that it is the duty of the State to provide legal aid and basic services to prisoners, so that the right to life enshrined in our Constitution, is given true meaning. If we decide to privatise these aspects of prison management, it would be difficult to prove culpability and hold the state accountable, when there is a miscarriage of justice or non-fulfilment of its basic duties. In fact, the apex court judgments have expanded the ambit of prisoners rights to include political rights as well. The right to express ones views, including in writing or by publishing ones writings was made available to prisoners, within reasonable restrictions (as laid down in the censorship rules of Prison Manuals), in the Pandurang Sanzgiri case (AIR 1966 SC 424). The Supreme Court observed that any procedure which permits the impairment of the individuals rights without giving him a reasonable opportunity of being heard should be condemned as unfair and unreasonable. In the Prabha Dutt case, the Supreme Court (AIR 1982 SC 6) ruled that a prisoner is entitled to give a press interview, if the press is willing to take his interview. A prisoner on death row, who is willing to write something which is of great scientific, historical or educational value may be given enough opportunity and time to complete his work by suspending execution of death penalty for a reasonable period. Such enlargement of rights only becomes possible when state authorities, and not private parties, can be asked by the courts to fulfil their obligations towards the citizens, as laid down by the Constitution.

Civil Society Participation

There are, however, some judgments and policy documents which encourage civil society participation in prison management and reintegration of prisoners in s ociety. In a landmark judgment in the S unil Batra case (AIR 1980 SC 1579), the Supreme Court laid stress on the UN D eclaration that
the treatment of prisoners should emphasise not their exclusion from the community but their continuing part in it. Community agencies should, therefore, be enlisted wherever possible to assist the staff of the institution in the task of the social rehabilitation of the prisoners. There should be, in connection with every institution, social workers, charged with the duty of maintaining and improving the desirable relations of a prisoner with his family and with valuable social agencies. Steps should be taken to safeguard to the maximum extent compatible with law and the sentence, the rights relating civil interests, social security and physical security of prisoners.

The first initiative towards reforming the prison system in the country was made with the setting up of the Indian Jails Committee in 1919, which made some farreaching recommendations on the issue. After independence, the All India Jail Manual Committee was set up in 1957 in an effort by the Government of India, to standardise the practices and facilities o ffered to prisoners in the various states in the country. An expert from the United Nations, Walter C Reckless was invited to help formulate a national correctional policy and he had an instrumental role to play in the setting up of this committee. Based on the recommendations of this committee, the model prison manual was published by the central government in 1970. This manual served as a standard for the states and union territories to upgrade their manuals. A working group on prisons was set up in 1972 which gave its report a year later, reiterating some of the recommendations of earlier committees and reports and adding some new ones. The Government of India constituted the now much discussed Mulla Committee (Report of the All India Committee on Jail Reforms 1980-83) to inquire into prison conditions and make recommendations to improve the situation of prisoners. Some of the recommendations of the report which highlights public-private interface include special emphasis on involvement of community participation and role

Economic & Political Weekly EPW january 22, 2011 vol xlvI no 4

17

COMMENTARY

of NGOs in corrections. The report spells out creation of community-based treatment progra mmes and the involvement of the community with institutional aftercare and rehabilitation of offenders. It calls for involvement of the services of experts from the field of education, medicine, psychiatry, law, social work and journalism in framing and running the correctional p olicy at functional and advisory levels (Vol I, Chapter XXI of the report). Another important document in this connection is the Report of the National Expert Committee on Women Prisoners, 1987 (Krishna Iyer Committee Report). This committee was set up by the department of women and child development, Govern ment of India to make recommendations to ameliorate the conditions of women in custody. Some of the recommendations of this committee were supportive to public-private interface in prison and c orrectional administration. The committee has recommended an active reaching out to the prisoner to effectively deal with the anxieties of inmates, particularly under trials, with respect to their families and children. To assist the prisoners more usefully, and especially to serve the function of liaison between the prisoner

and her family, it is necessary to have trained social workers whose specific duties would not be custody and security, but to work towards the social integration of the prisoners. Such social workers could also arrange activities for undertrial inmates to help them to spend their time meaningfully, without compulsion. Such social workers would be useful as a tool to prison management to understand social and group dynamics and to use it to the advantage of the prisoner as well as the custodial staff. The s ocial workers counselling input should encompass the custodial staff as well as the inmates (Vol I, paras 363 and 364, pages 243 and 244 of the report). To increase legal literacy and assist in social and emotional mainstreaming of women prisoners, the committee has r ecommended the induction of para-legal and social workers to help solve personal, family and legal problems of prisoners. It has also recommended activating the system of prison visitors, setting up socio- legal counselling services, organising legal camps and offering functional and legal literacy to prisoners (Vol I, paras 380 and 381, p 251 of the report). The committee has recommended the appointment of women social workers in the districts as non-official

visitors. The panels terms of reference should include monitoring of prison conditions, implementation of prison reforms, legal, mental and rehabilitative assistance, prisoners grievances and staff problems (Vol I, para 383, p 252 of the report). For improved legal and social preparedness of the prisoner, and aid to the overall adjustment process in prison as well as release from custody, the committee has recommended setting up of socio-legal counselling cells in prisons, consisting of social workers and lawyers, law students or para-legal workers (Vol I, para 384, p 253 of the report). The committee also recommended that aftercare services should be merged with the prison department and suggested the setting up of at least one aftercare hostel per district with temporary or long-term accommodation, employment placement programme, quota for recruitment in govern ment jobs, bank loans and subsidies for selfemployment, follow-up of cases, dissemination of information through m edia and the setting up of a nodal point, embracing probation, socio-legal counselling cells and aftercare services, designated as Centre for Relief to the Discharged Prisoner (Vol I, paras 417 to 422, pp 264 to 267 of the report).

Who reports the news that the Indian media blacks out?

TheHoot.org

The Media Watchdog with bite

Regional Media Media and Conflict Media Ethics Media Books and Research Media and Gender Online Media Community Media Media Activism Columns
18
january 22, 2011 vol xlvI no 4 EPW Economic & Political Weekly

COMMENTARY

A recent initiative in the series of such exercises is the model prison manual drafted by the bureau of police research and development, ministry of home a ffairs, Government of India (2003). The report has separate chapters related to e ducation, vocational training and work programmes, welfare, aftercare and rehabilitation of prisoners. Some of the recommendations from the model prison manual which has scope to include the PPP model are in the areas of education, vocational training and work programmes, prisoner welfare, and aftercare and rehabilitation programmes. The manual recommends that specialised personnel should be a ppointed and trained with the above o bjectives in mind and NGOs should be extensively involved in these programmes. It emerges from these policy recommendations that there is scope and maybe even a need to involve civil society and non-state actors in certain areas of prison management and correctional administration. These aspects pertain mainly to issues such as the attending to the welfare needs of prisoners, their education and training, providing family support and counselling services, liaison with prison authorities to access basic rights and facilities, and rehabilitation and deve lopmental needs. These areas of work could be g reatly strengthened through a partnership b etween government and civil society, which should include financial support to the players involved in service delivery. Good practice models of PPP in this area do exist abroad and in the country, whereby prisoners have been trained through certified courses in specific trades or vocations and then employed by the private sector with payment of wages at market rates, and with the possibility of being absorbed in the same jobs after their release from prison. The important point to be noted is that care has to be taken by the prison department to ensure that prisoners interests are protected and they are not farmed off to the private sector as cheap labour.

An Emerging Framework
If privatisation and the PPP model is kept limited to the areas highlighted above, it may help the prison authorities and the

criminal justice apparatus to focus on aspects such as security, custodial care and management, provision of legal aid and an effective case management system which is able to provide speedy and effective justice to those awaiting their trials for years on end. However, unfettered privatisation of prisons can lead to exploitation of prisoners as cheap labour by the private sector. Fenwick (2005) points out that prison labour is put to use by the private sector in three situations prisoners working in private prisons, prisoners working in a state-managed prison but where the prison industry is managed or run by the private sector and where prisoners on work release are working in a privately run industry. It is observed that the first two mentioned situations are more commonly in operation than the last mentioned. Fenwick further highlights that the history of private sector involvement in the exploitation of prisoners labour is littered with examples of harmful practices inflicted on prisoners He quotes Henriksson and Krech (2001: 308) that the risk with these types of projects is that they can lead to abuses of prison workers, n egating the original purpose of rehabilitation in the pursuit of financial profits (cited in Fenwick 2005). Fenwick quotes from an International Labour O rganisation document on Prison Labour (1932), which very poignantly states wherever human labour is performed in conditions of s ubordination, dangers arise; and with prison labour these conditions and the r esulting dangers are pushed to the e xtreme (2005: 249). Allowing the PPP model in all areas of prison administration could in fact, pave the way for a gradual acceptance of the idea of privatisation of prisons. Apart from the ideological and accountability issues that have been raised through this paper in the earlier sections, the experience of privatisation of prisons in the west has revealed that private prisons tend to gradually move away from the welfare and rehabilitation role. It has been observed that privatised prisoners tend to downsize the staff as part of their cost-cutting measures and the axe first falls on welfare and correctional staff. As Blank (2000) rightly points out, in the social services sector, when standards are difficult to observe, or

when the recipients of the service are not in a position to make decisions about who should be the service-providers, it may be better that the service deliver structures and mechanism remain with the government. In prisons, the welfare aspects i nclude issues such as correctional treatment and rehabilitation, whereby outcomes are not easy to measure. In such situations, it is sometimes necessary to maintain standards of services irrespective of whether such services are amenable to measurement and assessment. It is difficult to think that the private sector would be willing to invest in services where the results are not tangible and are delivered to the client population, both as a service per se, as well as a s y mbol of the values that we cherish as a progressive society. PPP model may work when it is viewed as supportive to State efforts in addressing the humanising and rehabilitative aspects in prisons. Civil society, NGOs and academia can play an effective role in reaching out to socially-excluded populations such as prisoners and ex-prisoners. This can be possible when an atmosphere of mutual collaboration is created between the prison administration and the collaborating agencies. The experience of academic i nstitutions of social work such as the Tata Institute of Social Sciences (TISS) has demonstrated how this partnership can benefit prisoners and prison admini stration and contribute to better prison governance. Students of social work and law can provide counselling, legal guidance and aid, family support and post- release servi ces to prisoners and their families, especially their children. Similarly, field action projects can be initiated in prisons such as the one initiated through TISS, known as Prayas, with which the author has been associated since the last 20 years.
References
Blank, R M (2000): When Can Public Policy Makers Rely on Private Markets? The Effective Provision of Social Services, The Economic J ournal, Vol 110, No 462, Conference Papers: C 34-C49. Fenwick, C (2005): Private Use of Prisoners' Labour: Paradoxes of International Human Rights Law, Human Rights Quarterly, Vol 27, No 1, pp 249-93. Harding, R (2001): Private Prisons, Crime and Justice, Vol 28, 265-346.

Economic & Political Weekly EPW january 22, 2011 vol xlvI no 4

19