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IS THE PRIVATIZATION OF PRISONS A SOLUTION TO THE FAILURE OF THE PRISON SYSTEM IN INDIA?

Author(s) – 1. Gayatri Singh (UPES Dehradun)

2. Hardik Manoj Manwani (UPES Dehradun)

3. Avantika Verma (UPES Dehradun)

ABSTRACT  

One of the most crucial components of the criminal justice system in our nation is prison. The term “correctional facility” also applies to prisons, where the individual who has been charged or found guilty is detained and loses the privileges that the state has granted them as a citizen. In ancient and medieval India, there were prisons. The legacy of the British colonial government includes the contemporary penitentiary. Prior to our country’s independence from the British Empire and the adoption of its own constitution, prisons were known for their inhumane conditions, torture, and cruelty to inmates. However, since then, with the help of Fundamental Rights and Directive Principles of state policies, our country has placed an emphasis on liberty, equality, and fraternity[1]

Prison privatization as a notion dates back to the 16th century and was first popularized in the United Kingdom. In the 1980s, the concept experienced a revival in the US. This model has been tested in numerous nations. The seventh schedule of the Indian Constitution’s State List, item 4, of the State List, deals with prisons. Therefore, the state government is responsible for managing prisons. India never gave the idea of a private prison a thought, and they never weighed its benefits and drawbacks against the current structure. This paper compares the public and private jail systems, analyses the advantages and disadvantages of private prisons, and evaluates the sustainability of private prisons in India. It also attempts to cover the subject of how public-private collaborations may improve the present prison system[2]

INTRODUCTION 

“It is said that no one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens, but its lowest ones.”

– Nelson Mandela

All lawbreakers under trial are punished by the law, and in various cases they face imprisonment. A prison is a place where these criminals are detained and segregated from society, they possess limited freedom in accordance with their crimes. Till now, the requirement and number of prison systems have increased as society advanced, earlier states were crude and uncivilized, and since then there’s been a progression towards the civilization of states, where states control the society that is civilized. Salmond’s theory explains why, it states that with the advancement there arose a need to monitor and control criminal activities. Prisons run under general or special orders of government and are temporary or permanent in nature[3].

The governance of the prisons in India is a matter covered under Item 4 of the Seventh Schedule of the Constitution of India, which lays out that the governance and management of Indian prisons fall under the state list. These prisons are run by the state government as per their prison manuals and in harmony with the Prisons Act, 1894, which is the oldest legislation is dealing with prison laws in India. On top of this, regular guidance over prisons and prisoners is provided to the states and the union territories via the Ministry of Home Affairs[4]

What if the state ran prison systems were privatized?

Privatisation of prison systems has been a controversial topic across the globe for a while now. There are some countries that have already adopted the approach, but the results are not uniform or beneficial for all of them. A comment by Amitabh Kant, head of Niti Aayog, has again raised the notion of privatizing prisons in India with schools and colleges. Should the state step outside of its necessary functions and hand them over to private organizations? Will privatization be the only way to effectively reform our prison system?  We are to find out[5].  

According to Michelman, privatization reduces a state’s government to an “empty shell.” Privatization won’t strip the government of its essential duties since it doesn’t divest the state of all responsibilities, notwithstanding what Elaine Genders said in the context of the prison system. For instance, the state will continue to be in charge of negotiating the contract, the terms and standards, the monitoring and accountability mechanisms, etc. The radically new idea of privatization had an impact on the entire world. This idea was applied by the majority of nations to better their countries overall. However, India didn’t accept this idea until 1991, in an effort to elevate its international standing[6].  

According to the Indian Government, public private partnerships, is “a partnership between a public sector entity (sponsoring authority) and a private sector entity (a legal entity in which 51% or more of equity is with the private partner/s) for the creation and/or management of infrastructure for the public purpose for a specified period of time (concession period) on commercial terms, and in which the private partner has been procured through a transparent and open procurement system[7].”

Over the past few decades, public-private partnerships have been increasingly popular. To improve efficiency and viability, nations including the USA, Canada, the UK, Australia, and others have embraced this approach. The Prisons Act, 1894, the Prisoners Act, 1990, and the prison manuals of each state government are the pieces of legislation pertaining to the management and administration of prisons[8].

OUR PRESENT PRISON SYSTEM 

The British colonial administration left behind the prison system that is in place today. Numerous committees were established to change our system, but neither the legislation nor the reports created an effective solution. In Shri Rama Murthy v. State of Karnataka[9], the court found nine issues with our system, including:

1. Overcrowding 

2. Abuse of prisoners 

3. Insufficient food and clothing 

4. Trial delays 

5. Vices in jail

6. Neglect of health and hygiene

7. Lack of communication

8. Streamlined visits to jail, and 

9. Management of open-air prisons.

According to the apex court in the Sunil Batra vs. Delhi Administration[10] case, the court has identified the gross violation of human rights of prisoners in jails and laid down three basic grounds; a person does not cease to be a human when placed behind the bars, he is entitled to all human rights within the confines of imprisonment, and there is no justification for increasing the sufferings already embedded in the process of detention[11].

Today, it is difficult to assert that prisons are a place for reform, considering their dismal condition. According to the most recent data between 2018 and 2019, the occupancy rate of prisons has increased from 117.6% to 118.5%. The high occupancy rate refers to a problem of overcrowding and congestion because under trial prisoners made up 69.1% of the total prison population in 2019. After making so many efforts, the prisoners still lack access to necessities and endure inhumane treatment such as unhygienic, unsatisfactory living conditions, an improper diet, poor sanitation, outdated infrastructure, solitary confinement, a lack of medical facilities, the arbitrary use of physical force, being chained in leg irons, and many other things[12].

STUDY OF THE USA PRISON SYSTEM 

The privatization of prison systems is an established concept that was first implemented in the United Kingdom in the 16th century. In this arrangement, private players are hired by the government on a contractual basis, and in exchange for capital, they take care of all or most of the prison management. This so-called stipend is an amount that is generally calculated by the housing cost of a prisoner given his time and the size of the prison[13]

Privatization of prisons is also a concept that was adopted by the United States of America, during the 1980s. In the case of Pischke v. Litscher[14], a number of questions were brought up, including whether private government power exercises are substantially shielded from constitutional oversight. Will growing privatisation seriously jeopardise the idea of a constitutionally responsible government?

It was also laid out that confining a prisoner in a private prison over a government prison is conditional. In the early stages, the Federal Bureau hired private correctional institutions to confine some federal inmates in order to curb high costs and overcrowding. There were contracts between the government and private sector only regarding the medical and health facilities, to limit their role, but later it expanded to management and running the whole prisons for the private sector[15]

Now, the federal bureau is in charge of the management and maintenance of the prisons, so there’s again a shift from private to government prison systems. The prisons in the USA are known as correctional institutions. The history of private prison systems in the USA indicates that the shift from a government to a private system proved beneficial and was done during troubled times. But there was a requirement to shift back to government-held prisons because the Bureau facilities are much better. As in the case of correctional programs and services, they are much better offered by the government than by the private sector. Additionally, the private systems did not demonstrate significant cost savings, and according to the Office of Inspector General, they do not provide the same level of security and safety[16].

Furthermore, since the prisons are rehabilitation centres, in this area to the Bureau provides educational programs and job training that are unmatched and very difficult for private systems to carry out. Since these services play a major role in improving public safety and welfare, the concept of private prisons was discarded and limited; this has been applied in the USA and Canada. There now exist government-controlled prison systems[17].

HISTORY OF PRIVATE PRISONS IN THE UNITED KINGDOM

In the late 1970s and early 1980s, the management of prisons experienced tremendous change in western countries. The economic effectiveness of prison in terms of cost was heavily taken into consideration from a management perspective. The optimal delivery cost was prioritized by the jail administration. Private prisons rapidly increased in number in the 1990s in countries including Australia, the United States, and the United Kingdom. Through privatization and under particular conditions, the best possible use of resources can be made at the lowest possible cost[18].

In Western Europe, the greatest rate of prisoners per 100,000 people is found in the United Kingdom. There were 85,427 inmates in England as of May 27, 2016. Both governmental and private jails are present. In 2016, there were 123 prisons in England and Wales. Publicly owned but privately run prisons, privately built and operated prisons, or in a few extremely unusual circumstances, both. Her Majesty’s Prison Service, an executive agency supported by the Ministry of Justice, oversees public sector prisons in the United Kingdom, England, and Wales. 14 of the 123 prisons—referred to as “contracted-out private prisons” – are managed privately[19].

In Western Europe, the largest proportion of prisoners per 100,000 people has been found in the United Kingdom. The number of prisoners in England as of May 27, 2016, is 85,427. There are jails in both the public and private sectors. In England, as of May 27, 2016, there were 85,427. There are jails in both the public and private sectors. In England and Wales, there were 123 prisons in 2016. Prisons can be privately run, publicly owned but privately run, or, in rare cases, both[20]

The United Kingdom was the first nation in Europe to adopt private prisons. The first private jail in the UK opened for business in 1992. HMP Wolds, the first privately run prison in the UK, opened its doors in May 1992. Margaret Thatcher led England as prime minister in the 1980s. She has a strong desire to increase the availability of public services on the free market, based on the dubious assumption that doing so would increase systemic change and make private sector providers more effective and efficient[21].

THE LONG HISTORY AND THE PRESENT STATUS OF PRISONERS IN INDIA 

The use of prisons originates from ancient India. The Mughal and British India periods saw a rapid improvement in the prison system. Particularly during the British India era, several prisons were constructed to confine and torment Indians. However, the Pakwasa committee was established in 1949, following the declaration of independence, to develop rules for the treatment of inmates. The committee recommends using prisoners as workers without close monitoring. Additionally, the wage system was introduced. They also advised that convicts who behave well will be given a sentence reduction. The Indian government requested Dr. W.C. Reckless, a UN expert on custodial labour, to present a report and provide recommendations for legislative changes in 1951. He produced a report named “Jail Administration in India” and recommended the modification of old jail manuals[22].

Even after that, the Indian government established numerous committees to continue the system’s improvement along with other countries. Under the leadership of former Justice A.N. Mulla, the All India Prison Reforms Committee, the R.K. Kapoor Committee, and the Justice Krishna Iyer Committee reviewed the circumstances that existed in that era. All of the committees provide recommendations for enhancing jail conditions while keeping in mind the current situation. As a result, it also offered a suggestion to improve the conditions of the jails, and the staff who work in them across the country[23].

The Indian prison system has nine major problems and issues, the court said in the case of Rama Murthy vs. the State of Karnataka[24]. Out of these, the prisoner’s five main issues are living conditions, overcrowding, medical care, food, and sanitation. The National Crime Record Bureau (NCRB) reports that 114% of the prisons are occupied. The highest percentage of prisoners is in Uttar Pradesh (169%). The vast majority of these prisoners are still involved in the pre-trial stages of their cases. The majority of prisoners are confined due to their incapacity to pay the court-imposed bail amount or because they are unaware that a bail system is available. In the case of Hussainara Khatoon v. Home Secretary[25], the Supreme Court of India took into consideration the issue of inmates who are awaiting trial. The court began by noting that the country’s bail system is extremely inadequate. In this case, the Indian Supreme Court upheld Article 39A[26] of the Indian Constitution, which mandates that the state must give deserving individuals access to legal aid[27].

Prisoners are excluded from society and are restricted from using various rights as per the crimes that they have committed. So naturally, it’s very likely for society to not pay attention to their needs – physically, mentally, financially, emotionally, and morally. But legally, the judiciary plays a very valuable role in providing prisoners with the rights that they deserve via the constitution and judicial pronouncements; these rights include interpretation of Articles 19[28], 21[29], 22[30], 32[31], 37[32], and 39A[33] of the Indian Constitution. Stated below are the most important rights that exist to safeguard the interests of the prisoners: 


1. Right to Reasonable Classification.
2. Right of young prisoners to be housed separately from the old prisoners. 
3. Various special rights for women prisoners. 
4. Right to live in a Healthy Environment 
5. Right to access Bail 
6. Right to speedy justice, i.e. Speedy trial.
7. Right to access free legal representation/service

8. Right to access basic requirements, including food, water, shelter, etc. 
9. Right to converse with designated legal representation 
10. Right to be detained for not more than a designated period 
11. Right against forceful sexual activities 
12. Right to not be unlawfully handcuffed and fettered
13. Right to not be unlawfully punished, in a cruel, torturous or degrading manner. 
14. Right to be safeguarded from an arbitrary punishment when in prison. 
15. Right to seek an effective remedy 
16. Right to Habeas Corpus
17. Right to seek remedy and compensation for violation of Human Rights 
18. Right to meet visiting family members 
19. Rights to write appropriate letters to friends & family and to receive appropriate print media such as newspapers, magazines etc.
20. Right to be a part of reformative and rehabilitative initiatives 
21. Right to reasonable access to prison employment and wages 
22. Right to be informed about general rules of prison 
23. Right to access healthcare and emergency treatments
24. Right against unlawful solitary confinement 

The rights mentioned above are not comprehensive in nature but are being evolved by the legislature and mainly via judicial pronouncements. 

In terms of prison labour solely, the public-private partnership model has previously been successful in Indian prisons. Tihar jail was included into this system in the 1990s. Prisons used the detainees to generate revenues of Rs 12–15 crores annually. They hired them to do things like weave, build, and tailor. With DEIEM India and Century Pvt Ltd, the Tihar jail engaged into a PPP arrangement that primarily focuses on educating the prisoners about the goods they produce. PPPs are a big success in this industry. The convicts’ living conditions can be enhanced with better food and medical facilities by employing this concept. Along with raising people’s quality of life, this will also help people develop their abilities[34].

WHY PRIVATIZATION OF PRISONS CAN’T WORK IN INDIA?

Exploring the private jail system is unquestionably necessary because the government in this area is ineffective and incompetent to change the situation. Undoubtedly, there are problems with our prison system, and in 1991, the privatization of prisons was a wise decision. However, it is not feasible in our nation to entirely contract out prison administration and upkeep to the private sector[35].

Academic Centre for Law and Business v. Minister of Finance[36], a landmark case in Israel, pointed out the main issues with the privatization of prisons. The “risk of abuse of power” and the inmates’ “right to liberty and human dignity” were the two reasons the court overturned the legislation relating to the privatization of prisons[37].

Risk of abuse of power

The jury determined this can be inappropriate use of force by private individuals who work for the government, which poses a significant amount of risk. The legitimate use of power by private parties violates basic rights. When authority is used by a person, they should do it  to advance society’s interests rather than their own. When this use of force is not have democratic representation and regarded as an inappropriate and unnecessary use of violence when it is not carried out by the state’s competent organs, by the authority granted to them, to further the general public instead of private interests. The limitation on the state’s use of force. The entire exercise of authority becomes unconstitutional if it is not performed within the confines of the constitution’s principles[38].

Inmate’s Right to Liberty and Human Dignity

The quasi-public entities doctrine, which holds that anyone with governmental authority must abide by the public laws, including Israel government courts and the HC of justice, is a supplement to privatization in Israel. The Supreme Court of Israel stated that the simple fact that private parties use their authority to keep prisoners in private prisons raises questions about the rights of prisoners who are under private control. Additionally, it raises concerns about the inmates’ rights from a human rights perspective. The court ruled that placing inmates in privatized controlled prisons results in a situation where its public purposes of detainment are twisted or degraded by unrelated factors caused by individual economic interest, specifically the aim of private companies running the jail to earn a profit from them. Therefore, it is obvious and reasonable to worry that looking up individuals managed by private jail will turn them it in to a source of income for the company that operates and manages the prison and earns a profit. Therefore it should be highlighted that the existence of such a prison demonstrate the disrespect of the prisoners as humankind and that this infringement of the individual’s integrity is independent of such prison’s ability to make a profit[39]

Prison privatization should be prohibited for several reasons, but most importantly because justice should never be served for financial gain. Private companies shouldn’t be allowed to take away people’s freedoms. The police, courts, and prisons are all parts of our criminal justice system, so even if one of them is privatized, the state as a whole will also be immediately impacted, as well as the other two systems. If we give them to the private sector, there is a potential for corruption. For instance, some convicts, particularly those who are wealthy and influential, may receive preferential treatment. People will eventually begin to question and lose faith in our justice system as a result of this[40].

Second, due to their focus on making a profit, the private sector might not offer necessary care to convicts. Private prisons can make more money if they have prisoners. Incentives are lacking for them to address prison congestion and decrease the number of prisoners awaiting trial. Therefore, regardless of whether it is within the public or private sector, there is no way to remedy the issue because it is with the judicial system, not with the prison system[41].

Thirdly, the state frequently employs force to complete its tasks. And this would result in a violation of fundamental rights, for which the state is subject to writs of habeas corpus. In accordance with Article 13 of the Indian Constitution, if we transfer these responsibilities to the private sector, private parties are not subject to writ enforcement. It will take a very long time to file civil or criminal petitions against them. Also, the situation is likely to get worse or, at best, stay the same given that private prisons are only held accountable to the government and not the general public[42].

Last but not least, corruption permeates every level of our system, starting with the lower posts and moving up to the higher ones. Numerous examples exist where powerful prisoners have received special treatment. Therefore, it is extremely questionable how private jails will address this issue. This will simply make the problem worse because we already know that private jails will only serve the government and not the general population. The “Kids for Cash” scandal, which occurred in Luzern County, Pennsylvania, demonstrates how hazardous and deadly regulatory capture may be. This happened when a private jail contractor paid judges to sentence young criminals who had committed minor offences to be imprisoned in his prison without being tried. This resulted in the wrongful detention of almost 2,000 juveniles. It demonstrates just how much worse corruption may become. Therefore, it is not feasible in India to entirely privatize the prison system[43].

THE CONCEPT OF REGULATORY CAPTURE 

The NITI Aayog can’t seem to find anything anymore that it does not want to privatize. Giving the job to the private sector seems to be the only effective solution, whether it’s for healthcare or airlines. Amitabh Kant, the CEO of Niti Aayog, suggested that “jails, schools, and colleges” also be handed over to the private sector, so his recommendation may not have come as much of a surprise. The metaphor he uses shows that he is not proposing for the government to continue operating jails, schools, and colleges in cooperation with private enterprises, but rather that it completely discontinues doing so  (it may not be a pure coincidence that he used these 3 in the same breath)[44]

Kant never really explained why he believes this, but the rest of the speech and recent actions of the NITI Aayog indicate that privatization is regarded as India’s one-shot solution to all of the country’s problems with the government. The advantages and disadvantages of private sector participation in any given sector are not really examined. Involving and “handing over” certain economic sectors has certainly been attempted, whether in India or elsewhere, but privatization appears to be more dogma than legally coherent policy[45].

Kant did not go into further detail, but it is possible that he was proposing that the government send convicts to for-profit prisons, where they would serve out their sentences. This has been tried in the United States and has generally been shown to be disastrous for everyone except for the shareholders of such companies[46].  

In general, there are two strong arguments against privatizing prisons: that doing so amounts to stripping the government of its core functions (the Israeli Supreme Court, for example, ruled that a law permitting private prisons was unconstitutional for this reason) and the high likelihood of regulatory capture[47]

When we talk about the general fear of privatization in India and the rest of the world, for the most part, we see regulatory capture at the top. The concept of “regulatory capture” was made popular by Nobel Prize-winning economist, Mr. George Stigler. It’s when a private player is hired to distribute his services for the welfare of the public and starts to work against public welfare and profit generation or any other selfish cause. Regulatory capture can be found across the globe and on various levels[48]

But to balance out regulatory capture, there exists a system of checks and balances. Basically,, there could be multiple stakeholders in a private firm who can balance out the power and check that the decisions are being made in the public interest. There have been various companies like TRAI that have protected their neutrality through the division of power[49].

Talking about the privatization of prisons, when the prisons are privatized, the government takes on the role of a regulator. The private company is bound by its contractor. This means the private players have no say in the socioeconomic matters of how a prison should be run, and they are just hired for the convenience of the government. We can conclude that the main beneficiary of this system is the government, and for economic reasons, there’s a clear compromise on social welfare when opting for a private system[50]

In our nation’s prisons, inmates endure terrible living circumstances. This was brought to light by the Byculla prison murder, which wouldn’t have received any media coverage at all if Indrani Mukherjee hadn’t been a famous inmate there. The jail system in India is still a creation of colonial institutions, much like the police force, and was designed to terrorize and intimidate the populace rather than serve as a place where criminals might be punished and reformed.

Inmates from underprivileged origins and minority groups make up a large portion of the prison population in India. They are unable to pay bail because they lack the resources and knowledge necessary to complete the entire legal process. They were a component of colonial architecture, and despite their best efforts to build a fairer and equitable society, India’s aristocratic class never got around to demolishing them. It’s disappointing to see that the focus seems to be solely on making money, rather than discussing turning prisons into reformatory facilities[51]

ARGUMENTS TO PRIVATIZE PRISONS THROUGH CONTRACTS IN INDIA 

Privatization of prisons on a contractual basis makes a lot more sense for the government and other parties as the terms can be varied and customized according to the requirements of the contractors. Listed below are the reasons for the government to privatize our prison system, using a contract: 


1. It’s a standard procedure for private organizations to make use of the finest skills and latest technologies, whereas we rarely see such standards while monitoring a public facility. This happens mainly because the government has limited resources and they need to maintain a basic structure throughout the region/country[52]


2. Cost reduction is a very prominent reason for the privatization of the prison system. By contracting prisons to private entities the government will save up managerial costs to any extent of its choosing. 


3. When it comes to market advancement and competition, a government’s monopoly might not always be the best answer. A shift to a private system along with a healthy approach towards bringing multiple private players into the market may generate more competition and better options. 


4. The private players will offer more efficiency. Basically, they can provide more and better services at any given cost compared to the government, and this will also help in cost reduction. This happens because of various reasons:

  • There exists a system of checks and balances, as the private’s main motive is profit generation mainly for the shareholders. These shareholders keep a check on private companies’ activities, ensuring that they generate maximum profit with minimum cost via efficiency.
  • Private also uses various tactics to maintain its efficiencies like flexible hiring, firing and promotions. They also provide an infrastructure and facilities that help a worker mentally and physically to work more along with incentives as rewards[53]

ARGUMENTS NOT TO PRIVATIZE PRISONS THROUGH CONTRACT IN INDIA 

When you read the reasons below, you will understand why the government hasn’t privatized our prison system and is hesitant to do so. Each and every reason, individually and collectively, make sense for India not to opt for the privatization of the prison system:


1. With the formation of the state, some of the very basic and crucial responsibilities were vested with the state, these are solely operated by the state to keep its integrity intact as a sovereign. For example, National Security, and Internal Protection which includes Police and Prisons[54]

2. The private sector involves high risk. Basically, the private sector runs on finance and experience. The grounds for privatization of the prison system will be fragile to the mistakes made by inexperienced private players or financial instability. 


3. The private sector also has a very strong reach, some of the private players are economically so powerful that they not only run the economy but also have the power to influence politics. Due to such outstanding reach, if the prison system is opened to private players and any such player contractually takes over and establishes a monopoly, it may prove to be unpromising for the nation, to say the least. 


4. Opening up the prison system to private players is also a very expensive and time-consuming process. There are requirements for negotiations and monitoring of the private players. There is supposed to be rigidity, flexibility and a great range of laws which are to be followed. To come up with a contract that is fool proof and with legal procedures to be followed by the private that is comprehensive and apt for all cases is not an easy task. Lack of range and certain rigid conditions may increase suffering for many, not only the prisoners but the experienced government employees who are associated with the current prison system, if they’re not included in the new contract with the private company. 


5. Private players are profit makers and this profit motive will hinder them from providing the proper services to the prisoners and can also lead to poor management which will be ironic. Again if we provide private players incentives for quality service, we will risk losing money and control. 


6. Lastly, the selection process among the private players is going to be challenging. There’s a requirement for a person who has a strong moral character and expertise in the field. Which will be very tough to find without being biased as corruption, lobbying and conflict of interests will arise when such a crucial area is opened to private[55].

SUGGESTIONS

Some solutions can fix the issue with our system: 

1. One potential solution can be the intervention of private firms to partially assist the government in running the jail system more effectively.  Contractual agreements between the public sector organization and private sector investors for the delivery and financing of public projects and services are known as Public Private Partnerships (PPPs). These jails may be used to detain under trial prisoners who have committed petty offences[56].

As an illustration, Tihar Jail began using this approach in the 1990s. It entered into a PPP agreement with DEIEM India, Minda Furukawa Electric Pvt. Ltd., and many others that gives great opportunities for reformation and rehabilitation to prison inmates through training and eventual incorporation into their respective organizations.

2. The main issues affecting prisons include an overburdened judiciary, low funding for prisons, and rampant government corruption. To address the issues with prison, reforms are necessary in these areas.

3. The issue of crowding and congestion can be resolved by having a speedy trial for the undertrial prisoners. The court said in Hussainara Khatoon v. Home Secretary State of Bihar that the right to a speedy trial is protected by Article 21 of the Indian constitution, which guarantees the right to life and liberty.

4 Utilizing alternatives to incarceration is another way to address overcrowding. These are a fine, a civil commitment, and probation. Releases on bail also help to reduce overcrowding. The norm should be bail rather than jail. 

5. There is a need to increase the number of prison training institutes in our country. Currently, there are only 3 institutes which are in Kolkata, Vellore, and Chennai that are tasked with instructing prison staff on dealing with high-risk offenders.

6. In our country, there is a need to expand the number of jail training institutes. Currently, only three such institutes are located in Chennai, Kolkata, and Vellore that are loaded but the task of training prison officers specifically on how to cope with high-risk offenders.

7. The following resolution has been recommended for adoption by the MHA in order to improve prison administration: 

       (a) All prisons have video conferencing facilities.

       (b) The jail department needs to fill all vacant positions quickly. 

       (c) Welfare wing correctional and probation services will be available in prisons

       (d) Adopting the 2016 Prison Manual’s provisions.

8. The Delhi High Court has recommended specific prison reforms: vocational training, skill development, and educational opportunity to enable a means of livelihood and occupational status; participation in sports activities and creative art therapy; the formulation of a post-release rehabilitation program for the appellant well in advance to make himself – sufficient; and adequate counselling is given to the appellant to be sensitized to realize why he is in prison[57].

CONCLUSION  

The primary goal of the prison should be to reform the prisoner, and the government’s facilities are the only way to accomplish this. However, if we examine the current situation, it is just making prisoner life more difficult. The government must be held accountable for this since it is not doing enough to address the problems that are already present, such as the violent environment, overpopulation, and numerous other difficulties[58].

One of the most crucial duties of the government is the management of the jail system in our nation. Delegating this significant government task to the private sector won’t provide any positive outcomes for either party. It is now widely accepted that, in order to enhance the administration of the justice system and the prison system in our nation, we must also make improvements to other aspects of the justice system. Only then will we be able to accomplish our goal of improving the prison system. A private prison system’s efficiency and cost-effectiveness should not be taken into account when analysing this because the loss of freedom is the maximum punishment that can be imposed on a person in our liberalized society. As a result, such an action should be handled by the state and not by private organizations or anyone else.

We believe that the best way to address the issue is for the private sector to partially assist the government in doing so, which would entail developing a model of public-private partnership to manage the prison system effectively. Thus, all responsibilities that fall under the purview of the state, such as those relating to health care, medical services, living conditions, sanitation, and the placement of prisoners, may be transferred to private parties through the use of a well-drafted contract and based on the skills and expertise of the companies. The government will have less work to do and operate more efficiently after this system is implemented. The privatization system is not anticipated because it is still being established in our nation. Profit is the primary driver of a private prison. Therefore, the entire privatization of prisons is not the answer to India’s prison problems and won’t do much to address the current challenges with our prison system[59]


[1] H Arun Jaganathan, ‘Feasibility of Prison Privatization in India’ (Lex Forti, April 2020) < https://lexforti.com/legal-news/wp-content/uploads/2020/08/Feasibility-of-prison-privatisation-in-India-H-ARUN-JAGANATHAN-2.pdf> accessed 4 November 2022

[2] Ibid

[3] Tanvi Goswami, ‘Is Privatization Of Prisons A Solution To Rotting Prisons Of India?’ (Legal Services India E – Journal, 27 May 2021) <https://www.legalserviceindia.com/legal/article-5891-is-privatization-of-prisons-a-solution-to-rotting-prisons-of-india-.html#:~:text=Private%20prisons%20receive%20a%20stipend,depends%20on%20the%20prison%20size.> accessed 3 November 2022

[4] Ibid

[5] Tanvi Goswami (n 3)

[6] H Arun Jaganathan (n 1)

[7] Ibid

[8] H Arun Jaganathan (n 1)

[9] Shri Rama Murthy v. State of Karnataka, AIR 1997 SC 1739.

[10] Sunil Batra vs. Delhi Administration, (1978) 4 SCC 409.

[11] Tanvi Goswami (n 3)

[12] Ibid

[13] Tanvi Goswami (n 3)

[14] Pischke v. Litscher, 178 F.3d 497.

[15] Tanvi Goswami (n 3)

[16] Ibid

[17] Tanvi Goswami (n 3)

[18] H Arun Jaganathan (n 1)

[19] Ibid

[20] H Arun Jaganathan (n 1)

[21] Ibid

[22] H Arun Jaganathan (n 1)

[23] Ibid

[24] Rama Murthy vs. the State of Karnataka, (1997) 2 SCC 642.

[25] Hussainara Khatoon v. Home Secretary, 1979 AIR 1369.

[26] Constitution of India, 1950, art 39A

[27] H Arun Jaganathan (n 1)

[28] Constitution of India, 1950, art 19

[29] Constitution of India, 1950, art 21

[30] Constitution of India, 1950, art 22

[31] Constitution of India, 1950, art 32

[32] Constitution of India, 1950, art 37

[33] Constitution of India, 1950 (n 26)

[34] H Arun Jaganathan (n 1)

[35] Tanvi Goswami (n 3)

[36] Academic Centre for Law and Business v. Minister of Finance

[37] Tanvi Goswami (n 3)

[38] H Arun Jaganathan (n 1)

[39] Ibid

[40] Tanvi Goswami (n 3)

[41] Ibid

[42] Tanvi Goswami (n 3)

[43] Ibid

[44] Alok Prasanna Kumar, ‘Don’t Privatize our Prisons’ (Pragati, 1 Aug 2017) < https://www.thinkpragati.com/opinion/1919/dont-privatize-prisons/> accessed 4 November 2022

[45] Ibid

[46] Alok Prasanna Kumar (n 44)

[47] Ibid

[48] Alok Prasanna Kumar (n 44)

[49] Ibid

[50] Alok Prasanna Kumar (n 44)

[51] Ibid

[52] H Arun Jaganathan (n 1)

[53] Ibid

[54] H Arun Jaganathan (n 1)

[55] Ibid

[56] Tanvi Goswami (n 3)

[57] Ibid

[58] H Arun Jaganathan (n 1)

[59] Tanvi Goswami (n 3)

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