PRISONERS RIGHTS
Smt. Kewal Pati, Petitioner V. State Of U.P. And Others, Respondents.
DATE OF DECISION: 06-04-1995
CITATION(S) : 1995-(101)-CRLJ -2920 -SC
JUDGE(S) :
R M Sahai
S B Majmudar
ORDER
This petition was entertained on a letter sent by the wife of
the deceased Ramjit Upadhaya who was killed by a co-accused while
serving out his sentence under Section 302 IPC in Central Jail,
Varanasi. The petitioner and her children have claimed compensation
both in law and on compassionate grounds, Reports were obtained
from the Inspector General of Prisons, U.P. and the Superintendent,
Central Jail, Varanasi. They confirm that Ramjit Upadhaya was
killed by a co-accused. A counter-affidavit was also filed by
Deputy Jailor, Central Jail, Varanasi, admitting that Ramjit Upadhaya
was killed by co-accused, Happu, against whom case under Section
303 has been registered. Affidavit was filed on behalf of the
Government as well stating that there was no provisions in the
U.P. Jail Manual for grant of compensation to the family of the
deceased convict.
2. Ramjit Upadhaya was a convict and was working as a Nambardar
in the jail. He was strict in maintaining discipline amongst the
co-accused. It was due to this strictness in his behaviour as
Nambardar that he was attacked and killed by Happu a co-accused.
Even though Ramjit Upadhaya was a convict and was serving his
sentence yet the authorities were not absolved of their responsibility
to ensure his life and safety in the jail. A prisoner does not
cease to have his constitutional right except to the extent he
has been deprived of it in accordance with law (see Francis Coralie
Mullin v. Administrator, Union Territory of Delhi and A. K. Roy
v. Union of India). Therefore, he was entitled to protection.
Since the killing took place when he was in jail, it resulted
in deprivation of his life contrary to law. He is survived by
his wife and three children. His untimely death has deprived the
petitioner and her children of his company and affection. Since
it has taken place while he was serving his sentence due to failure
of the authorities to protect him, we are of opinion that they
are entitled to be compensated.
3. In the result this petition is allowed by directing that the
State of U.P. shall deposit a sum of Rs. 1,00,000 within three
months from today, with the Registrar of this Court. A sum of
Rs. 50,000 out of this amount shall be deposited in fixed deposit
in any nationalised bank and the interest of it shall be paid
to the wife and the children. The remaining amount shall be paid
to the wife by the Registrar after being satisfied about the identification
of the petitioner. The amount in deposit shall be paid to the
wife on her option after all the children become major. In case
of petitioner's death prior to the children becoming major, the
amount shall be divided equally between the surviving children.
Gurdev Singh And Others Etc., Petitioners V. State Of Himachal
Pradesh And Others, Respondents.
DATE OF DECISION: 14-03-1991
CITATION(S) : 1992-(098)-CRLJ -2542 -HP
JUDGE(S) :
Bhawani Singh
Devinder Gupta
HIMACHAL PRADESH HIGH COURT
JUDGMENT
BHAWANI SINGH, J. :- These criminal writ petitions, being common
in nature, scope and effect are being decided by a common judgment
and the learned counsel for the parties also agree that they should
be so decided.
2. The petitioners, in both these petitions, are undergoing imprisonment
in the jails of the State. They submitted the petitions to this
Court which were placed on Judicial side for examination and decision
by Chief Justice P. D. Desai, as he then was. In Criminal Writ
Petition 6 of 1985 (Gurdev Singh & 6 others v. State of H.P.
and 2 others) the petitioners complain that they are employed
for work but are being paid Rs. 1.50 per day for the labour. They
also say that no wages are paid for the first three months of
labour. In Criminal Writ Petition No. 49 of 1985 (Bhag Singh Chauhan
v. State of H.P.), in addition to the allegation of the improper
management of wage amounts by the Superintendent of Jail and Store
Keeper, they also say that they are forced to work with contractors
either at less wages or no wages at all. The allegation as to
mis-utilization of wage amounts were inquired into by the District
& Sessions Judge, Shimla on the directions by this Court.
However, the report discloses that the allegation of Bhag Singh,
convict regarding the mis-utilization of the wage amounts against
the jail officials has no substance. We have, therefore, no material
before us to arrive at a conclusion favourable to the petitioner
and against the jail officials. However, there is something to
be said on the engagement, rate of wages, their receipt and management
by the jail authorities which aspect, we will turn to, at an appropriate
place in the succeeding part of this judgment.
3. In his reply, the Inspector General of Prisons stated that
the payment of wages to prisoners for rendering services in the
jail factory/garden/kitchen etc. is regulated by the provisions
of the Wage Earning Scheme applicable in respect of Model Central
Jail, Nahan and District Jail, Dharamshala. Prisoners are paid
wages @ Rs. 3/- (skilled), Rs. 2.25 (semi-skilled) and Rs. 1.50
(un-skilled) for full task. The wages are paid to the workers
of various categories in the following manner :-
"(a) A worker who performs the prescribed task of standard
quality is entitled to the payment of wages prescribed for the
trade or work in which he is employed.
(b) A worker who performs task of standard quality in excess of
the prescribed task is entitled to payment of additional wages
in proportion to the additional work at the rate prescribed i.e.
Rs. 3/- Rs. 2/25 and Rs. 1/50 respectively for skilled, semi-skilled
and unskilled labour.
(c) No prisoner who does not accomplish the prescribed task of
the standard quality is entitled to any payment of wages provided
that 50 percent of the wages prescribed in Rs. 3/-, Rs. 2/25 and
Rs. 1/50 respectively for skilled semi-skilled and unskilled work,
are payable in the following cases :-
(1) to convicted criminal prisoners in skilled trades for duration
of the period of training in excess of three months provided the
prisoners accomplished a task of the standard quality exceeding
50 percent.
(2) Undertrails and simple imprisonment prisoners after three
months of admission of the wage earning scheme/system provided
they accomplish the task of the standard quality exceeding 50
percent.
(3) The unskilled workers recommended hard, medium and light work
by the Medical Officer concerned get wages @ Rs. 1/50, Rs. 1/25
and Rs. 1/- respectively per day.
For the purpose of payment of wages prison labour is classified
into three categories as defined below :-
(I) "Skilled workers those employed on work which involve
either physical or mental or both kinds of skill in its execution
and which cannot be accomplished by ordinary labour with proficiency
without sufficient skill".
(II) "Semi-skilled Worker" means worker engaged on a
task which cannot be performed by untrained hands but which can
be executed with some training and practice but does not require
any strict standard of precision.
(III) "Unskilled worker" means worker engaged on a task
which does not require any skill or training.
Classification of each prisoner eligible for employment on various
industries and trades allocated to each jail are made in accordance
with the above categories by the Superintendent Jail concerned
for the purpose of payment of wages in accordance with the nature
of work on which the prisoner is employed with the approval of
the Inspector General of Prisons.
Out of the wages earned by the prisoners they are allowed to spend
Rs. 25/- per month to purchase items such as Ghee, bidies, cigarettes
etc. The balance is deposited in their personal account. If they
so desire amount is also remitted to their families. But no such
payment is made to the prisoners.
The following categories of prisoners are eligible for employment
under the scheme :-
(i) All prisoners sentenced to rigorous imprisonment.
(ii) Criminal prisoners sentenced to simple imprisonment as long
as they so desire provided that no prisoner not sentenced to rigorous
imprisonment shall be punished for neglect of work.
(iii) All convicted criminal prisoners with their consent.
(iv) Civil prisoners subject to provisions of Paras 797 and 798
of Punjab Jail Manual.
Provided that women prisoners during prenatal and postnatal period
and convalescent prisoners shall be exempted from work on the
recommendations of the Medical Officer.
While allotting work to the prisoners the following factors are
taken into consideration :-
i) Physical and mental health;
ii) Age;
iii) Length of sentence;
iv) Requirements of security and discipline;
v) Previous occupation, training and experience;
vi) Result of vocational aptitude tests, where given;
vii) Area (Urban and rural) where the inmate is likely to resettle
after released and possibilities of employment;
viii) Level of work-skills and abilities;
ix) Rehabilitation needs;
x) Possibilities of imparting multiple skills;
xi) Vocational training needs;
xii) Inmate's occupational performance so far as they are compatible
with institutional conditions and available facilities for work
and training.
Note :- Prisoners are assigned work carefully on the basis of
their interests, abilities, training needs and trust-worthiness.
But questionable and superficial interests are not considered.
The allotment of work in the above manner is subject to the following
conditions :-
i) Requirements of the institution for essential services and
maintenance jobs are considered on priority basis;
ii) Only volunteers are employed in conservancy work.
Under the Scheme there is no provision for payment of compensation
to prisoner who may sustain injury while on work."
4. The State has also placed its case through various affidavits,
filed at various stages of this case. In the affidavit of 5-8-1985
of Special Secretary (Home) to the Government by Himachal Pradesh,
it has been stated that the State Government is profoundly concerned
over the welfare of prisoners and the need for jail reforms which
it would like to do within its resource limits. It has been admitted
that the present conditions of jails are not as ideal as the Govt.
would like it to be and in order to ameliorate the conditions
in the jails, the necessary steps in that behalf are under consideration.
5. It has further been stated that payment of minimum wages to
all prisoners including those undergoing rigorous imprisonment
would amount to abolition of rigorous imprisonment which has remained
so far an accepted principle of jurisprudence and as long as the
statute recognizes the concept of rigorous imprisonment, providing
of minimum wages to all prisoners would, in essence, oboliterate
the difference between rigorous imprisonment and simple imprisonment.
6. According to the Government, manual work by prisoners sentenced
to labour is recognized part of Jail Administration and discipline
as envisaged by Prisons Act, 1894 and the Punjab Jail Manual,
as applicable to Himachal Pradesh. To prescribe minimum wages
for such labour of the prisoners inside the prison the benefit
of which goes mostly to the prisoners themselves would adversely
affect Jail Administration, discipline and morale. Moreover, the
stipulation of minimum or reasonable wages combined with the concept
of rigorous imprisonment denotes some kind of assured employment
to the prisoners in preference to the law-abiding unemployed citizens
outside the prison wall, and since the Government has not been
able to provide employment to all such unemployed citizens, it
does not consider it proper to do so in the case of prisoners.
It has further been stated that the Government also feels that
the stipulation of minimum wages for manual work done by the prisoners
in the jail will restrict the discretion of the Government to
introduce different kinds of jail reforms in future, because any
such step would bind it to inflexible quantums of wages which
the Government may not always be able to provide for. The jail
reforms, in the forms of education and technical training, would
prove immensely useful for postrelease rehabilitation and the
claim for minimum or reasonable wages is thus not acceptable.
7. Then, it has been stated that in pursuance of this Court's
directions of 16-9-1985, the Government has deleted from clause
12 of the Wage Earning Scheme sub-clauses (iii) & (iv) vide
order dated 28-9-1985 to remove the disability clause against
prisoners sentenced imprisonment for three months or less and
the prisoners for the first three months of their imprisonment.
By affidavit of September 30, 1985, it has been stated by the
Inspector General of Prisons that no prisoner, whose services
were utilized in the jail factory/garden/kitchen and/or at any
other place during the last five years, has/had received any injury
by accident arising out of and in the course of his employment
for such work.
8. While giving reply in Criminal Writ Petition 49/85, Deputy
Inspector General of Prisons, Himachal Pradesh has filed the relevant
extract relating to "labour and wages" from out of the
scheme of the Government applicable to "Open Air Jail"
(Annexure R. 2/A). Further, it has been stated that after the
construction work of the work for the prisoners of the Open Air
Jail with the Public Works Department of the Government. In such
a situation, the work for the prisoners was procured from other
Government or semi-Government agencies like H.P. Housing Board,
State Electricity Board, Irrigation Wing of Public Works Department,
Himachal Pradesh Mines Industrial Development Corporation and
M/s. Piters India Limited Bilaspur, where the work is got done
by the Company through private contractors. This was necessary
in the interest of the inmates of the Open Air Jail, Bilaspur,
to keep them busy on the one hand and to give them an opportunity
to earn money on the other hand. The prisoners are engaged where
ever the work is available for them. The employers are asked to
place their demands for prison labour in writing to the Superintendent
of the Jail, stating therein the number of prisoners required
by them, the rate of daily wages and the probable period for which
the prison labour is required. When ever, there is any increase
in the wages of the free market and the Government rates, the
prison labour also gets the same wages. The prisoners are sent
to work sites in prison van with one warder, in charge of each
gang. In order to improve the counting system of prisoners' wages,
the employers are requested to remit the amount of wages preferably
through crossed cheques in the recorded showing the deposit of
wages received on the jail office.
9. The prisoners are allowed Rs. 20/- per month as pocket money
to purchase cigarettes, beedis, Ghee, butter etc. This amount
of pocket money is allowed to be withdrawn from their pass books
on their written request by a Chit in the name of Post Master
of the Post office concerned. The prisoners are given their pass
books to withdraw the money from the Post Office by presenting
refund voucher under their own signatures to the extent authorised
by the Superintendent of Jail. By this way, they get a chance
to examine their balance amount in their pass books and in case
they come across any discrepancy, they are at liberty to bring
the same to the notice of the Superintendent, Jail, Jail Visitors
and the Prison Inspectorate.
10. In pursuance of the directions, the second respondent evolved
and issued exhaustive wage accounting scheme to the Superintendent,
Open Air Jail, Bilaspur on 22-2-1986 for immediate adoption. This
fact finds mention in the affidavit of Deputy Inspector General
of Prisons dated 7-4-1986 with which the copy of the scheme has
also been filed.
11. Finally, there is the order of Government dated 20th October,
1986 whereby the wages of prisoners under the Wage Earning Scheme
have been enhanced with immediate effect to the following extent
:-
"Wage Earing Scheme Revised Rates. (Existing) ----------------------------------------------------
1) Skilled Rs. 3.00 Rs. 6.85. 2) Semi-skilled Rs. 2.25 Rs. 5.15.
3) Un-skilled Rs. 1.50 Rs. 3.45."
12. Since the petitions were preferred by the prisoners directly
to this Court and looking to the importance of the matter involved,
Shri K. D. Sood and Shri D. D. Sood, Advocates, were requested
to appear amicus curiae. We record our appreciation for the help
they rendered in these cases.
13. Principally, four questions arise for determination in this
case. The first question is whether a prisoner is entitled to
claim wages in return for his work and, if so, what should be
the wages payable to him. The second question relates to the reasonableness
of the provision debarring prisoners from claiming wages for a
period of three months from the say of their incarceration. The
third is about the compulsory deduction of some part of the wages
towards maintenance and the fourth relates to the initiation of
reforms in various jails in the State.
14. The stand taken by the State, through various replies and
affidavits in these two cases has been extracted and during the
course of the hearing of these cases, the learned counsel for
the State, referred to them in order to oppose the claim of the
petitioners. However, it was pointed out that during the pendency
of these petitions, the Government has increased the wages by
an order of 20-10-1986 and the prohibition against payment to
prisoners till completion of three months has also been dispensed
with. It was also stated that the implementation of Para 702 and
Explanation to paragraph 703 of Punjab Jail Manual, as applicable
to the State, has been cancelled. We are not impressed by the
stand taken by the State relating to the main demand of the petitioners
in these cases for reasons being recorded in this judgment.
15. The Constitution of India is the supreme law of the nation
and all other laws have to be enacted within the parameters laid
down by it. The same test has to be passed by all laws which were
in force on the commencement of the Constitution (Art. 13). The
Preamble sets the human tone and tamper of the Constitution and
envisages, among other things, justice, equality and the dignity
of the individuals. Art. 21 is the repository of human values,
prescribes fair procedure and forbids arbitrariness, barbarities,
punitive or processual. Art. 23 prohibits forced labour when it
says :
"23. Prohibition of traffic in human beings and forced labour.
(1) Traffic in human beings and begar and other similar forms
of forced labour are prohibited and any contravention of this
provision shall be an offence punishable in accordance with law.
(2) Nothing in this Article shall prevent the State from imposing
compulsory service for public purposes, and in imposing such service
the State shall not make any discrimination on grounds only of
religion, race, caste or class or any of them."
16. The apex Court had occasion to interpret the meaning of this
provision in large variety of cases, however, for the purpose
of this case, it would be necessary to refer to two important
decisions. First case is AIR 1982 SC 1473 (People's Union for
Democratic Rights v. Union of India. In paras 14, 15 and 16, the
Court said :
"14. When the Constitution makers enacted Art. 23 they had
before them Art. 4 of the Universal Declaration of Human Rights
but they deliberately departed from its language and employed
words which would make the reach and content of Art. 23 much wider
than that of Art. 4 of the Universal Declaration of Human Rights.
They banned "traffic in human beings which is an expression
of much larger amplitude than 'slave trade' and they also interdicted
"begar and other similar forms of forced labour."
The question is what is the scope and ambit of the expression
'begar and other similar forms of forced labour' ? Is this expression
wide enough to include every conceivable form of forced labour
and what is the true scope, and meaning of the word "forced
labour ?" The word 'begar' in this Article is not a word
of common use in English language. It is a word of Indian origin
which like many other words has found its way in the English vocabulary.
It is very difficult to formulate a precise definition of the
word 'begar', but there can be no doubt that it is a form of forced
labour under which a person is compelled to work without receiving
any remuneration. Molesworth describes 'begar' as "labour
or service exacted by a government or person in power without
giving remuneration for it." Wilson's glossary of Judicial
and Revenue Terms gives the following meaning of the word 'begar'
:
"a forced labourer, one pressed to carry burthens for individuals
or the public. Under the old system, when pressed for public service,
no pay was given. The Begari, through still liable to be pressed
for public objects, now receives pay. Forced labour for private
service is prohibited."
"Begar" may therefore be loosely described as labour
or service which a person is forced to give without receiving
any remuneration for it. That was the meaning of the word 'begar'
accepted by a Division Bench of the Bombay High Court in S. Vasudevan
v. S. D. Mital, AIR 1962 Bombay 53. 'Begar' is thus clearly a
film of forced labour. Now it is not merely 'begar' which is unconstitutionally
prohibited by Art. 23 but also all other similar forms of forced
labour. This Article strikes at forced labour in whatever form
it may manifest itself, because it is violative of human dignity
and is contrary to basic human values. The practice of forced
labour is condemned in almost every international instrument dealing
with human rights. It is interesting to find that as far back
as 1930 long before the Universal Declaration of Human Rights
came into being. International Labour Organisation adopted Convention
No. 29 laying down that every member of the International Labour
Organisation which ratifies this convention shall "suppress
the use of forced or compulsory labour in all its forms"
and this prohibition was elaborated in Convention No. 105 adopted
by the International Labour Organisation in 1957. The words "forced
or compulsory labour" in Convention No. 29 had of course
a limited meaning but that was so on account of the restricted
definition of these words given in Art. 2 of the Convention. Article
4 of the European Convention of Human Rights and Article 8 of
the International Covenant on Civil and Political Rights also
prohibit force or compulsory labour. Art. 23 is in the same strain
and it enacts a prohibition against forced labour in whatever
form it may be found. The learned counsel appearing on behalf
of the respondent laid some emphasis on the word 'similar' and
contended that it is not every form of forced labour which is
prohibited by Art. 23 but only such form of forced labour as is
similar to 'begar' and since 'begar' means labour or service which
a person is forced to give without receiving any remuneration
for it, the interdict of Art. 23 is limited only to those forms
of forced labour where labour or service is exacted from a person
without paying any remuneration at all and if some remuneration
is paid, though it be inadequate, it would not fall within the
words 'other similar forms of forced labour'. This contention
seeks to unduly restrict the emplitude of the prohibition against
forced labour enacted in Art. 23 and is in our opinion not well
founded. It does not accord with the principle enunciated by this
Court in Meneka Gandhi v. Union of India (1978) 2 SCR 621 : AIR
1978 SC 597 (supra) that when interpreting the provisions of the
Constitution conferring fundamental rights, the attempt of the
court should be to expand the reach and ambit of the fundamental
rights rather than to attenuate their meaning and content. It
is difficult to imagine that the Constitution makers should have
intended to strike only at certain forms of forced labour leaving
it open to the socially or economically powerful sections of the
community to exploit the poor and weaker sections by resorting
to other forms of forced labour. Could there be any logic or reason
in enacting that if a person is forced to give labour or service
to another without receiving any remuneration at all, it should
be regarded as a pernicious practice sufficient to attract the
condemnation of Art. 23, but if some remuneration is paid for
it, then it should be outside the inhibition of that Article ?
If this were the true interpretation, Art. 23 would be reduced
to a mere rope of sand, for it would then be the easiest thing
in an exploitative society for a person belonging to a socially
or economically dominant class to exact labour or service from
a person belonging to the deprived and vulnerable section of the
community by paying a negligible amount of remuneration and thus
ascape the rigour of Art. 23. We do not think it would be right
to place on the language of Art. 23 on interpretation which would
emasculate its beneficient provisions and defeat the very purpose
of enacting them. We are clear of the view that Art. 23 is intended
to abolish every form of forced labour. The words "other
similar forms of forced labour" are used in Art. 23 not with
a view importing the particular characteristic of 'begar' that
labour or service should be exacted without payment of any remuneration
but with a view to bringing within the scope and ambit of that
Article all other forms of forced labour and since 'bagar' is
one form of forced labour, the Constitution makers used the words
"other similar forms of forced labour". If the requirement
that labour or work should be exacted without any remuneration
were imported in other forms of forced labour, they would straightway
come within the meaning of the word 'begar' and in that event
there would be no need have the additional words "other similar
forms of forced labour". These words would be rendered futile
and meaningless and it is a well recognised rule of interpretation
that the court should avoid a construction which has the effect
of rendering any words used by the legislature superfluous or
redundant. The object of adding these words was clearly to expand
the reach and content of Art. 23 by including in addition to 'begar',
other forms of forced labour within the prohibition of that Article.
Every form of forced labour, 'begar' or otherwise, is within the
inhibition of Art. 23 and it makes no difference whether the person
who is forced to give his labour or service to another is remunerated
or not. Even if remuneration is paid, labour supplied by a person
would be hit by this Article if it is forced labour, that is,
labour supplied not willingly but as a result of force or compulsion.
Take for example a case where a person has entered into a contract
of service with another for a period of three years and he wishes
to discontinue serving such other person before the expiration
of the period of three years. If a law were to provide that in
such a case the contract shall be specifically enforced and he
shall be compelled to serve for the full period of three years,
it would clearly amount to forced labour and such a law would
be void and offending Art. 23. That is why specific performance
of a contract of service cannot be enforced against an employee
and the employee cannot be forced by compulsion of law to continue
to serve the employer. Of course, if there is a breach of the
contract of service, the employee would be liable to pay damages
to the employer but he cannot be forced to continue to serve the
employer without breaching the injunction of Art. 23. This was
precisely the view taken by the Supreme Court of United State
in Bailey v. Alabama, (1910) 219 US 219 : 55 Law Ed. 191 while
dealing with a similar provision in the Thirteenth Amendment.
There, a legislation enacted by the Alabama State Providing that
when a person with intent to injure or defraud his employer enters
into a contract in writing for the purpose of any service and
obtains money or other property from the employer and without
refunding the money or the property refuses or fails to perform
such service, he will be punished with a fine. The constitutional
validity of this legislation was challenged on the ground that
it violated the Thirteenth Amendment which inter alia voluntary
servitude ..... shall exist within the United States or any place
subject to their jurisdiction. "This challenge was upheld
by a majority of the Court and Mr. Justice Hughes delivering the
majority opinion said :
'We cannot escape the conclusion that although the statute in
terms is to punish fraud, still its natural and inevitable effect
is to expose to conviction for crime those who simply fail or
refuse top perform contracts for personal service in liquidation
of debt, and judging its purpose by its effect that it seeks in
this way to provide the means of compulsion though which performance
of such service may be secured. The question is whether such a
statute is constitutional. "The learned Judge proceeded to
explain the scope and ambit of the expression 'involuntary servitude'
in the following words :
'The plain intention was to abolish slavery of whatever name and
form and all its badges and incidents, to render impossible any
state of bondage; to make labour free by prohibiting that control
by which the personal service of one man is disposed of or coerced
for another's benefit, which is the essence of involuntary servitude.'
Then, dealing with the contention that the employee in that case
had voluntarily contracted to perform the service which was sought
to be compelled and there was therefore no violation of the provisions
of the Thirteenth Amendment, the learned Judge observed :
'The fact that the debtor contracted to perform the labour which
is sought to be compelled does not withdraw the attempted enforcement
from the condemnation of the statute. The full intent of the constitutional
provision could be defeated with obvious facility if through the
guise of contracts under which advances had been made, debtors
could be held to compulsory service. It is the compulsion of the
service that the statute inhibits, for when that occurs the condition
of servitude is created which would be not less involuntary because
of the original agreement to work out the indebtedness. The contract
exposes the debtor to liability for the loss due to the breach,
but not to enforced labour.'
'Peonage is sometimes classified as voluntary or involuntary,
but this implies simply a difference in the mode of original,
but none in the character of the servitude. The one exists where
the debtor voluntarily contracts to enter the service of his creditor.
The other is forced upon the debtor by some provision of law.
But peonage however created is compulsory service, involuntary
servitude. The peon can release himself therefrom, it is true,
by the payment of the debt, but otherwise, the service is enforced.
A clear distinction exists between peonage and the voluntary performance
of labour or rendering of services in payment of a debt. In the
latter case the debtor though contracting to pay his indebtedness
by labour or service, and subject like any other contractor to
an action for damages for breach of that contract can elect at
any time to break it, and no law or force compels performance
or a continuance of the service.'
It is therefore clear that even if a person has contracted with
another to perform service and there is consideration for such
service in the shape of liquidation of debt or even remuneration,
he cannot be forced, by compulsion of law or otherwise, to continue
to perform such service, as that would be forced labour within
the inhibition of Art. 23. This Article strikes at every form
of forced labour even if it has its origin in a contract voluntarily
entered into by the person obligated to provide labour or service
vide Pollock v. Williams, (1943) 322 US 4 : 88 Law Ed. 1095. The
reason is that it offends against human dignity to compel a person
to provide labour or service to another if he does not wish to
do so, even though it be in breach of the contract entered into
by him. There should be no serfdom or involuntary servitude in
a free democratic India which respects the dignity of the individual
and the worth of the human person. Moreover, in a country like
India where there is so much poverty and unemployment and there
is no equality of bargaining power, a contract of service may
appear on its face voluntary but it may, in reality, be involuntary,
because while entering into the contract, the employee by reason
of his economically helpless condition may have been faced with
Hobson's choice, either to starve or to submit to the exploitative
terms dictated by the powerful employer. It would be a travesty
of justice to hold the employee in such a case to the terms of
the contract and to compel him to serve the employer even though
he may not wish to do so. That would aggravate the inequality
and injustice from which the employee even otherwise suffers on
account of his economically disadvantaged position and lend the
authority of law to the exploitation of the poor helpless employee
by the economically powerful employer. Art. 23 therefore says
that no one shall be forced to provide labour or service against
his will, even though it be under a contract of service."
"15. Now the next question that arises for consideration
is whether there is any breach of Art. 23 when a person provides
labour or service to the State or to any other person and is paid
less than the minimum wage for it. It is obvious that ordinarily
no one would willingly supply labour or service to another for
less than the minimum wage, when he knows that under the law he
is entitled to get minimum wage for the labour or service provided
by him. It may therefore be legitimately presumed that when a
person provides labour or service to another against receipt of
remuneration which is less than the minimum wage, he is acting
under the force of some compulsion which drives him to work though
he is paid less than what he is entitled under law to receive.
What Art. 23 prohibits is 'forced labour' that is labour or service
which a person is forced to provide and 'force' which would make
such labour or service 'forced labour' may arise in several ways.
It may be physical force which may compel a person to provide
labour or service to another or it may be force exerted through
a legal provision such as a provision for imprisonment or fine
in case the employee fails to provide labour or service or it
may even be compulsion arising from hunger and poverty, want and
destitution. Any factor which deprives a person of a choice of
alternatives and compels him to adopt one particular course of
action may properly be regarded as 'force' and if labour or service
is compelled as a result of such 'force', it would be 'forced
labour'. Where a person is suffering from hunger or starvation,
when he has no resources at all to right disease or to feed his
wife and children or even to hide their nakedness, where utter
grinding poverty has broken his back and reduced him to a state
of helplessness and despair and where no other employment is available
to alleviate the rigour of his poverty, he would have no choice
but to accept any work that comes his way, even if the remuneration
offered to him is less than the minimum wage. He would be in no
position to bargain with the employer; he would have to accept
what is offered to him. And in doing so he would be acting not
as a free agent with a choice between alternatives but under the
compulsion of economic circumstances and the labour or service
provided by him would be clearly 'forced labour'. There is no
reason why the word 'forced' should be read in a narrow and restricted
manner so as to be confined only to physical or legal 'force'
particularly when the national character, its fundamental document
has promised to build a new socialist republic where there will
be socio-economic justice for all and everyone shall have the
right to work, to education and to adequate means of likelihood.
The Constitution makers have given us one of the most remarkable
documents in history for ushering in a new socio-economic order
and the Constitution which they have forged for us has a social
purpose and an economic mission and therefore every word or phrase
in the constitution must be interpreted in a manner which would
advance the socio-economic objective of the Constitution. It is
not unoften that in a capitalist society economic circumstances
exert much greater pressure on an individual in driving him to
a particular course of action than physical compulsion or force
of legislative provision. The word 'force' must therefore be construed
to include not only physical or legal force but also force arising
from the compulsion of economic circumstances which leaves no
choice of alternatives to a person in want and compels him to
provide labour or service even though the remuneration received
for it is less than the minimum wage. Of course, if a person provides
labour or service to another against receipt of the minimum wage
it would not be possible to say that the labour or service provided
by him is 'forced labour' because he gets what he is entitled
under law to receive. No inference can reasonably be drawn in
such a case that he is forced to provide labour or service for
the simple reason that he would be providing labour or service
against receipt of what is lawfully payable to him just like any
other person who is not under the force of any compulsion. We
are therefore of the view that where a person provides labour
or service to another for remuneration which is less than the
minimum wage, the labour or service provided by him clearly falls
within the scope and ambit of the words "forced labour"
under Art. 23. Such a person would be entitled to come to the
Court for enforcement of his fundamental right under Art. 23 by
asking the Court to direct payment of the minimum wage to him
so that the labour or service provided by him ceases to be 'forced
labour' and the breach of Art. 23 is remedied. It is therefore
clear that when the petitioners alleged that minimum wage was
not paid to the workmen employed by the contractors, the complaint
was really in effect and substance a complaint against violation
of the fundamental right of the workmen under Art. 23."
"16. Before leaving this subject, we may point out with all
the emphasis at our command that whenever any fundamental right
which is enforceable against private individuals such as, for
example, a fundamental right enacted in Art. 17 or 23 or 24 is
being violated, it is the constitutional obligation of the State
to take the necessary steps for the purpose of interdicting such
violation and ensuring observance of the fundamental right by
the private individual who is transgressing the same. Of course,
the person whose fundamental right is violated can always approach
the court for the purpose of enforcement of his fundamental right,
but that cannot absolve the State from its constitutional obligation
to see that there is no violation of the fundamental right of
such person, particularly when he belongs to the weaker section
of humanity and is unable to wage a legal battle against a strong
and powerful opponent who is exploiting him. The Union of India,
the Delhi Administration and the Delhi Development Authority must
therefore be held to be under an obligation to ensure observance
of these various labour laws by the contractors and if the provisions
of any of these labour laws are violated by the contractors, the
petitioners vindicating the cause of the workmen are entitled
to enforce this obligation against the Union of India, the Delhi
Administration and the Delhi Development Authority by filing the
present writ petition ............"
17. The second case is AIR 1983 SC 328 (Sanjit Roy v. State of
Rajasthan) where the Supreme Court reiterated what it had said
in the People's Union case (AIR 1982 SC 1473) (supra). In this
case also, similar kind of question arose for consideration and
determination. In a drought hit area, the State Government undertook
the relief work evidently with the object of providing those affected
with some form of work, but the wages paid were unremunerative,
much less than the minimum wages. The view taken in the People's
Union case (supra) was reiterated again when the Court said (at
p. 333) (of AIR 1983 SC 328).
"I must, therefore, hold consistently with this decision
that where a person provides labour or service to another for
remuneration which is less than the minimum wage, the labour or
service provided by him clearly falls within the meaning of the
words 'forced labour' and attracts the condemnation of Art. 23.
Every person who provides labour or service to another is entitled
at the least to the minimum wage and if anything less than the
minimum wage is paid to him, he can complain of violation of his
fundamental right under Art. 23 and ask the court to direct payment
of the minimum wage to him so that the breach of Article 23 may
be abated."
Article 10 of the International Covenant on Civil and Political
Rights also envisages under :-
"Article 10 :- All persons deprived of their liberty shall
be treated with humanity and with respect for the inherent dignity
of the human person.
And in the words of Justice Felix Frank Furter, "the history
of liberty has largely been the history of observance of procedural
safeguard" and, in Maneka Gandhi's case AIR 1978 SC 597 it
has been stated :
"The ambit of personal liberty protected by Art. 21 is wide
and comprehensive. It emphasises both substantive rights to personal
liberty and the procedure provided for their deprivation."
18. In Sunil Batra's case (AIR 1978 SC 1675) : (1978 Cri LJ 1741),
the Constitution Bench of the Court held that imprisonment does
not, ipso facto, mean that fundamental rights desert the detainee.
19. In para 6 of the Supreme Court decision reported in AIR 1974
SC 2092 : (1975 Cri LJ 556) (D. B. M. Patnaik v. State of A.P.)
Chief Justice Chandrachud, J., as the learned Chief Justice then
was, stated thus :
"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 rights to "practise" a
profession. A man of profession would thus stand stripped of his
right to hold consultations while serving out his sentence. But
the Constitution guarantees other freedoms like the right to acquire,
hold and dispose of property for the exercise of which incarceration
can be no impediment. Likewise, even a convict is entitled to
the precious right guaranteed by Article 21 of the Constitution
that he shall not be deprived of his life or personal liberty
except according to procedure established by law."
20. A similar view was expressed by the United States Supreme
Court in a motion made by an inmate of the Nebraska State prison,
on behalf of himself and other inmates. His complaint was that
prison disciplinary proceedings did not comply with the due process
clause of the Federal Constitution. Justice White speaking for
the Court said in that case. Charles Wolff v. Mc. Donnel. (1974)
41 Law Ed 2d 935 at p. 950 :
"Petitioners assert that the procedure for disciplining prison
inmates for serious misconduct is a matter of policy raising no
constitutional issue. If the position implies that prisoners in
State institutions are wholly without the protections of the Constitution
and the Due Process Clause, it is plainly untenable. Lawful imprisonment
necessarily makes unavailable many rights and privileges of the
ordinary citizen, a "retraction justified by the considerations
underlying our penal system". Price v. Johnston (1948) 334
US 266, 285 : 92 Law Ed 1356 : 68 S ct. 1049. But though his rights
may be diminished by the needs and exigencies of the institutional
environment a prisoner is not wholly stripped of constitutional
protections when he is imprisoned for crime. There is no iron
curtain drawn between the Constitution and the prisons of this
country."
Wolff's case is referred to in Sunil Batra's case AIR 1978 SC
1675 : (1978 Cri LJ 1741). Krishna Iyer, J., observed in that
case (at p. 1691 (of AIR) : (at p. 1757 of Cri LJ), paragraph
57) thus :
"So the law is that for a prisoner all fundamental rights
are an enforceable reality, though restricted by the fact of imprisonment.
The omens are hopeful for imprisoned humans because they can enchantingly
invoke Meneka (1978) 1 SCC 248 : AIR 1978 SC 597 and, in its wake,
Articles 14, 19 and even 21, to repel the deadening impact of
unconscionable incarceratory inflictions based on some lurid legislative
text or untested tradition. As the twin cases unfold the facts
we have to test contentions of law on this broader basis".
Desai, J., speaking for himself and on behalf of Chief Justice
and two other Judges said in that case (para 212) :
"It is no more open to debate that convicts are not wholly
denuded of their fundamental rights. No iron curtain can be drawn
between the prisoner and the constitution. Prisoners are entitled
to all constitutional rights unless their liberty has been constitutionally
curtailed (See Procunier v. Martineg (1974) 40 Law Ed 224 at p.
248). However, a prisoner's liberty is in the very nature of things
circumscribed by the very fact of his confinement. His interest
in the limited liberty left to him is then all the more substantial.
Conviction for a crime does not reduce the person into a non-person
whose rights are subject to the whim of the prison administration
and, therefore, the imposition of any major punishment within
the prison system is conditional upon the observance of procedural
safeguards (see Charles Wolff v. Mc Donnel, (1974) 41 Law Ed 935
at p. 973). By the very fact of the incarceration prisoners are
not in a position to enjoy the full panoply of fundamental rights
because these very rights are subject to restrictions imposed
by the nature of the regime to which they have been lawfully committed."
21. From the aforesaid statement of law by the Supreme Court,
it is plainly clear that remuneration, which is not less than
the minimum wages, has to be paid to anyone who has been asked
to provide labour or service by the State. The payment has to
be equivalent to the services rendered, otherwise it would be
'forced labour' within the meaning of Article 23 of the Constitution.
Here, there is no difference between a prisoner serving sentence
inside the prison walls and a free man in the society. Although
on account of incarceration, a prisoner may lose enjoyment of
some of the rights, but there is no total extinction by reason
of the jail sentence. Section 53 of the Indian Penal Code may
provide for assignment of work in cases of rigorous imprisonment,
however, it does not say that the labour provided by such a prisoner
has to be free. Again, it does not envisage subjecting the prisoner(s)
to obnoxious, harsh and uncalled for duties which are ex facie
condemnable. Here, reference can be made to Nawal Kishore Thakur
v. Brahmu Ram ILR (1984) Him Pra 381 : (1985 Cri LJ 244 at p.
245) :
"7. Provisions such as those made in paragraph 702 read with
the Explanation to paragraph 703 of the Manual are, prima facie,
violative of Article 21 of the Constitution because they could
be regarded as an infraction of liberty or life in its wider sense
without prescribing in respect thereof by law a procedure which
is right, just, fair and reasonable. In fact, those provisions
involve forced labour for a prisoner because no payment is contemplated
to be made for such work, although, for other work within the
jail, which could be classified as jail industry, payment at the
usual rate is required to be made. Employment of a prisoner for
such private work of menial nature against his will and without
remuneration also offends human dignity which again is infraction
of life and liberty as understood in its wider sense. Besides,
such provisions also, prima facie, violative of Article 14 of
the Constitution because they are arbitrary, irrational, unjust
and unfair in their operation."
"8. Under the circumstance, the operation of Paragraph 702
and the Explanation to Paragraph 703 of the Manual is suspended
with immediate effect. The State Government is directed to issue
instructions forthwith to all jail authorities in the State not
to take from any prisoner the work of the nature contemplated
by paragraph 702 and the Explanation to paragraph 703 of the Manual.
The State Government will also immediately take up for consideration
the question of the repeal of provisions of paragraph 702 read
with Explanation to Paragraph 703 of the Manual and such or similar
provisions of anachronistic nature in light of the observations
made hereinabove and a report as regards the action taken in the
matter will be placed on the record of this proceeding on or before
July 30, 1984."
22. As recorded in the preceding part of this judgment, the State
Government has complied with this Court's Directions by issuing
notification of July 28, 1984.
23. We, therefore, proceed to reject the submission that the State
can put the prisoners, sentenced to rigorous imprisonment, to
hard labour without payment of any wages in view of the nature
of the sentence they serve. Equally untenable is the plea that
giving of better facilities and payment of wages to them would
mean creating an impression that committing of crime and going
to the prison is a better mode of living and earning wages. This
kind of understanding of the matter is completely misconceived.
It is difficult to comprehend the matter in this way. No one,
would like to commit crime, suffer indignity and undergo obligatory
hard labour by losing all benefits which a free man can otherwise
a avail in the society. While examining this kind of argument,
the learned Judges of the Kerala High Court in AIR 1983 Kerala
26 (In the matter of : Prison Reforms Enhancement of Wages of
Prisoners) said in para 14 of the judgment that :
"It appears to us that it would be unreasonable to assume
that merely because a person is moderately well-fed and looked
after under humane conditions in the jail he is unconcerned with
the sentence or feels happy in the jail. To a person under restraint
the most valuable right the absence of which he feels deeply,
is his personal freedom, the freedom to move about freely in society
the freedom to associate with his kith and kin and the freedom
to work as he likes to earn and maintain his dependants. The absence
of access to the affection of the members of his family makes
him emotionally upset and he waits for the day when he will be
able to go back to his home for a reunion with his close relations
and friends. Everyday of his sentence is of count to him materially.
Quite often we have come across prisoners sentenced to imprisonment
for a fairly long terms feeling aggrieved about a mistake of a
few days in computing set off of their term of imprisonment they
have to undergo. It may appear that it matters little to a prisoner
who is to be released 7 years later that there has been a failure
to deduct 5 days by way of set off. But it is not so. We have
seen that really it matters to him much. He is keenly alive to
the mistake and seeks to get the mistake corrected at the earliest.
He is always and at all times certain of how many years, days
and months he had spent in jail. All these indicate how valuable
to him the prospect of freedom after the period of sentence is.
Many accelerate their release by purchasing remission parting
with the few paise that they earn by way of wages and by donating
blood in the hope that this process takes them nearer to the day
when they can be back in the affectionate atmosphere at home.
The most deterrent factor in imprisonment is really the fact of
curtailment of personal freedom. It may not be necessary to make
it harsh and inhuman in order to render the sentence of imprisonment
a deterrent."
24. We are told that there are various kinds of prisoners in the
jail. However, compulsory work is necessary in the case of those
who are sentenced to rigorous imprisonment while in other cases
the prisoners are subjected to work after receiving their consent.
Now, the question arises whether all kinds of prisoners should
be put to work and paid accordingly. In our opinion, subjecting
prisoners, sentenced to rigorous imprisonment, to hard work and
providing work to others is not at all bad. However, the same
has to be done keeping in view their will, physical strength and
the upper-most obligation to make payment for the work got done
from them. There has to be no distinction between the work inside
the prison and outside it. Similarly there has to be no distinction
between 'open prisons' and 'closed prisons'.
25. We have no information about other prisons in the State except
the Open Air Jail at Bilaspur and we are happy to note that the
in charge of the said jail makes all efforts to secure work for
the engagement of the prisoners with various organisations near
and around the jail premises thereby not only keeping the prisoners
busy but also enabling them to have social contacts outside the
jail and earn wages for themselves and their dependants. These
efforts should not only increase in the Open Air Jail at Bilaspur
but also in other jails in the State so that the prisoners are
engaged in various kinds of works, obviously, subject to security,
jail discipline, their physical capacities and other weighty reasons
to be duly recorded relating to certain cases). This all will
create sense of discipline and responsibility amongst them. It
would educate the prisoners in various vocations and help them
to rehabilitate themselves suitably as soon as they are out of
the jails.
26. Now, the question arises about the quantum of wages payable
to them. On the Court's insistence, the Government appears to
have considered the matter and revised the wages, as already stated
above, but this increase is woefully inadequate. They cannot be
justified on any basis and we are not convinced by the submission
that these are conventional. In case they have linkage with the
past, its continuance cannot be sustained after the commencement
of the Constitution of India. Moreover, it appears that it proceeds
on the assumption that in every treatment towards the prisoner,
there has to be some indication of retribution for the crime committed
by the prisoner. As a matter of fact, the propounders of this
kind of thought have lost sight of the fact that as against the
retributive theory of punishment, reformatory theory has been
brought to the fore by the social scientists, scholars and law
professors and they lay great emphasis on the rehabilitation of
the prisoners and call for extensive, effective and rewarding
reforms in this field. The information supplied to us by the learned
counsel for the State discloses that the State Government is not
paying even the minimum wages, fixed by the State Government under
the Minimum Wages Act, 1948 and notified on 26-1-1990, to the
prisoners. Payment of minimum wages, as already noticed above,
is a mandatory requirement under the Minimum Wages Act, 1948.
It has to be paid compulsorily since the non-payment thereof renders
one liable to prosecution. Shri K. D. Sood referred to paras 16
and 17 of the Kerala judgment and submitted that the State Government
has to pay reasonable wages/living wages which are decidedly higher
than the minimum wages. We quote these paras of the judgment as
under :
"..... Payment of reasonable wages to a prisoner would enable
him to have sufficient funds to meet the minimum personal requirements
in jail. It may help the prisoner in providing his dependants,
may be an old mother, an invalid father or orphaned children with
the minimum to keep them, not in comfort, but out of hunger. That
may go a long way to remedy an evil which is necessarily attendant
upon imprisonment. Quite often it is not merely the criminal who
is punished. Of course, he undergoes the sentence. But the people
who depend upon him, such as old parents may be unable to make
a living for themselves. The wife and children of the prisoner
may have no means to answer their primary needs. In these circumstances
the dependants are severely punished in fact more than the criminal
himself. That would be quite unfair. No civilised law can conceive
of imposing a punishment, the impact of which is on the innocent
dependants. To some extent this unfairness and injustice envisaged
in our present penological approach could be mitigated by making
a provision for minimum sustenance for dependants which would
be the case if one third or even one-half of the reasonable wages
is passed on to them. Though that by itself may not be sufficient
to maintain them from utter starvation and misery.
1. The punishment would appear to be just and fair and not as
an exhibition of vindictiveness.
2. There would be a possibility of the prisioner being rehabilitated
on release.
3. The severity of the resultant punishment on the dependants
of the prisoner may be softened by payment of a substantial part
of the fair wages due to the prisoner to them.
4. Any provision for payment of wages to a prisoner is a recognition
of his humanhood, his right as an individual. That may preserve
his self respect.
5. Such a measure would take away reasons for nursing vengeance
against the society.
6. A humane approach would make it easier for the prison authorities
to enforce discipline.
7. The prisoner may be induced to dedicate himself to the work.
8. More than all these, the State can absolve itself of the charge
that it is exploiting the prisoners by taking free labour, a charge
which in the case of a civilised Government, is certainly not
commendable."
27. Similar question came for consideration before the Full Bench
of the Gujarat High Court in Reference on the report of Jail Reforms
Committee v. The State of Gujarat (Criminal Reference No. 2/84
decided on 31-1-1985) where the relevant observations can be reproduced
as under :
"We are happy to note that the State Government accepted
the view expressed by this Court that minimum wages that is being
paid in similar industries must be paid to the prisoners. It is
a very progressive approach by this State Government ............."
28. While dealing with the question of the extent of wages payable
to the prisoners, the Kerala High Court AIR 1983 Kerala 261 said
in paras 29 and 30 of the judgment that :
"29. We have therefore to decide the case before us on the
basis of the approach made by the Supreme Court in the cases adverted
to. In the case of those sentenced to simple imprisonment the
stand taken by the Government is that the work taken from them
is on the basis of their consent. If so necessarily they have
to be paid fair or living wages. We have been in this judgment
using the terms 'fair wages', 'living wages' and 'reasonable wages'
not intending thereby a different content for each of these terms
or giving them any technical meaning. By the employment of these
terms we only mean wages that would be reasonable. What would
be paid to an employee, who is free to negotiate and has the support
of the welfare and labour legislations, should determine the standard
of reasonable wages. There is no justification for the State to
claim that it is free to take prison labour without payment that
whatever it pays is ex gratia and is not as of right and therefore
there can be no claim for proper wages. A prisoner who undergoes
the sentence in jail must necessarily have his movement restricted.
That is involved in the very concept of imprisonment. His communication
with the rest of the world would also be necessarily restricted.
His right to practise his profession, however fundamental it may
be, will not be available to him while in the jail. But there
are other valuable rights, any curtailment of which will have
no relevance to the nature of the punishment. The right not to
be exploited in contravention of Article 23(1) is a right guaranteed
to a citizen and there is no reason why a prisoner should lose
his right to receive wages for his labour. In other words there
is no reason why a prisoner should be compelled to do forced labour,
forced in the sense that such labour is unremunerative or not
paid for. We have taken pains to explain by way of preface to
the discussion on the material issue in the case that it would
be quite consistent with a civilised approach that wages are paid
to a prisoner for the work taken from him. We have enumerated
the advantages of such payment. If on a proper understanding of
Article 23(1) of the Constitution there is no justification to
read that Article as excluding the case of a prisoner who is asked
to do work on payment if illusory wages we see no compelling reason
to do so. The consequence is that to deny a prisoner reasonable
wages in return for his work will be to violate the mandate in
Article 23(1) of the Constitution. Consequently the State could
be directed not to deny such reasonable wages to the prisoners
from whom the State takes work in its prisons.
30. That necessarily takes us to the final question, namely what
should be the reasonable wages to be paid to the prisoners. Of
course there could be no two opinions that the wages now paid
cannot be taken seriously at all. It cannot be said to be even
inadequate wages for 50 paise minimum and Rs. 1.60 maximum per
day cannot at all be said to possess the character of remuneration
for the work taken from the prisoners. The minimum wage laws of
this country prescribe what minimum wage has to be paid in each
industry. These minimum wages, it must be understood, are fixed
at a much lower level than living wages. Irrespective of the capacity
of the industry to pay, it has obligation to pay minimum wages
and if it cannot pay even such minimum wage it does not deserve
to exist. Reasonable wages would therefore always exceed minimum
wages. Having said so we think we should leave it to the Government
what reasonable wages should be paid to the inmates of the prisons.
A unanimous wage structure would of course be desirable lest there
be charge of discrimination in assigning work. It is for the Government
to consider all aspects of the question so that a just and reasonable
wage structure is designed for the inmates of the prisons. We
can appreciate that time must necessarily be taken by the Government
in deciding upon such a wage structure. Until then it cannot be
that the present situation is to continue. There must be an ad
hoc measure, a measure which takes into account the current wages
in several industries, the minimum wages fixed, the increase in
cost of living in the recent days and such other matters of relevance.
After considering all these matters and going through the minimum
wages notifications in regard to various industries we think that
as ad hoc measure we may safely fix Rs. 8/- per day as reasonable
wages subject of course to alteration later, when as a result
of further study, research and assessment the Government is able
to decide upon appropriate wages to be paid to the prisoners."
29. After carefully considering the various aspects of the matter,
we are of the considered opinion that all the prisoners of various
categories in all the jails in the State are entitled to be paid
reasonable wages for the work they are called upon to do in the
jails and outside the jails. These wages are left to be decided
by the State Government within a reasonable period, say, one year
from the date of decision of these cases. However, the prisoners
will be paid the minimum wages as notified by the State Government
from time to time under the Minimum Wages Act, 1948 from the date
of filing of these petitions in this Court. These wages will be
worked out within a period of three months from today and deposited
in the account of each prisoner.
30. The second question does not call for any decision since the
State Government has dispensed with this practice, as already
stated, by the learned counsel for the State and recorded in the
preceding part of this judgment.
31. On the third question, it was contended that the deduction
of Re. 1/- out of each day's earning from a prisoner put to work
is towards his maintenance on which the State is otherwise spending
much more than this deduction. No statutory provision has been
shown to us in support of this deduction. We feel that this kind
of deduction is indefensible. There is no acceptable rationale
behind this kind of deduction especially from those prisoners
who have been put to work. No maintenance charges are taken from
other prisoners who may not like to do any work. When a prisoner
is sent to prison, his maintenance is the primary concern of the
State. Similar view on this aspect of the matter has been taken
by the Gujarat High Court in the case (supra) when the Full Bench
was directly concerned with this kind of deduction. It is necessary,
therefore, to reproduce the view of the Full Bench in para 9 of
the judgment when it said that :
"9. A prisoner is not a free agent. Extracting work from
him is not a matter of contract wherein parties freely enter into
agreement as to the work to be done and the payment to be made.
The prisoner undergoes incarceration in the jail not because of
his volitation. The right to be paid for work done is a right
which any person who works has. It is not that the prisoner has
any choice about his food or his clothing. Given the choice no
prisoner may like to wear the cloth supplied to him in the jail.
That could also be said of the food supplied to him. It is not
as if in a case where a prisoner is not obliged to work he need
not be fed or clothed by the State. There are prisoners who undergo
a sentence of simple imprisonment. They have no obligation to
do any labour. The Government which keeps such a prisoner in jail
cannot contend that since he does not work no food will be given
to him and no clothing will be supplied. Undertrials are in custody
in Jails and sub-jails. They are not to do any work and nevertheless
they have to be fed and clothed. There are detenus under the laws
of preventive detention who are also provided with food and clothing
in jails without any return by way of work. There are prisoners
sentenced to rigorous imprisonment who are sick and are unable
to do work and they have necessarily to be fed. They cannot be
told that since they do not work they will not be fed. Even those
who are able to work and who could be compelled to do labour may
not be given labour due to absence of work as the reply affidavit
of the State Government shows. It mentions that at times the sales
of produce manufactured in jails are poor and then many go without
work. It cannot be said that they will not be fed when there is
no work. These would illustrate beyond doubt that feeding of a
prisoner is a responsibility of those who keep the prisoner in
custody irrespective of any return from him. It is so not only
human beings, but even to animals. When they are not allowed to
be free they have to be fed. It will be uncivilised, if not cruel,
to extract from such prisoners the return for the food and clothing
supplied to them, not food and clothing of their choice, not food
and clothing of excellence, but only a bare subsistence which
any authority that keeps another in custody and retain must necessarily
meet as a compulsory obligation. If the prisoners' wages is appropriated
for the food naturally the prisoner must have a choice of saying
no and making his own choice of the food. That cannot be the case."
32. In view of what has been said above, we direct that the provision
permitting the realisation of maintenance charges from the prisoners
be dispensed with forthwith and no future recovery be made in
this behalf.
33. The last question relates to the initiation of jail reforms
in the State of Himachal Pradesh. We advert to this aspect now.
34. In India, prison system has existed from the earliest times,
although their management had not been good. Prisoners used to
be lodged in those prisons but no attention was ever paid towards
their proper unkeep since the whole object had been to punish
them for the crime they had once committed. During the period
preceding the British Rule, the prisoners were ill treated, tortured
and subjected to barbarous treatment. However, with the advent
of the British Rule, some serious efforts to improve the condition
of prisons and prisoners were initiated. Many Committees were
appointed from time to time to look into the system of prison
management and suggest measures to eradicate evils which were
existing there. It was as a result of these recommendations by
the Committees that better amenities to the various kind of jail
inmates were extended and the number of prisoners which could
be accommodated in each of the existing jails was also prescribed.
Then came the Committee for Jail Reforms headed by Justice A.
N. Mulla which gave suggestions on various aspects of jail administration
including those relating to modernisation of jails and segregation
of young prisoners from hardened criminals. The culture of transforming
the criminals into good citizens and rehabilitating them suitably
on completion of jail sentence became so prominent that various
facilities were provided in the prisons for their training. They
were engaged against works inside and outside the jails so that
they could earn something and spend the same on themselves and
their families. By keeping them busy, there was radical improvement
in prison discipline and decline in jail crimes. The situation
improved to such an extent that in many jails the prisoners were
associated in the internal management of the jails. Prison labour
was held as the best alternative to engage the prisoners to keep
them physically and mentally alert. It created in them self confidence
and by keeping in touch with various kinds of activities inside
and outside the jails, they could return back after serving the
sentences with clear confidence to settle themselves suitably
and effectively.
35. In this state, we are told, there are various kinds of jails,
namely, Open Air Jail, Bilaspur, Model Central Jail, Nahan, District
Jails and the Sub-Jails. The functioning of Open Air Jail is different
from others. Different Schemes are in operation for the functioning
of the jails. We understand that the management at the Open Air
Jail, Bilaspur, is more democratic, advanced, liberal and reformative
as compared to other closed jails; it is also apparent from the
material placed before us by the State. At the suggestion of the
Court, certain steps have been taken for the management of prisoners'
wages so that there is no cause for complaint by any of them that
his/their wages were not efficiently dealt with. It is undeniable
that there are many reasons for the criminal to commit crimes.
A prisoner who has committed an offence is not to be condemned
outright. Crime is a kind of disease which has to be cured like
other diseases by various methods so that the criminal is usefully
cultivated for the society and in order to do so, successful results
have been achieved. We may usefully refer to the establishment
of Open Air Jail for rehabilitation of hardened and habitual criminals
at Munjoli in Guna District of Madhya Pradesh of notorious dacoits
of Chambal ravine like Mohar Singh and Madho Singh. The jail is
spread over sufficient land looked after by the prisoners for
which they are paid wages to enable them to support their families.
They have been granted Bank loans for starting dairying, poultry
farming, tailoring and agricultural farming. They have their own
bank accounts, canteens run on co-operative basis, their own Panchayats
to settle their mutual disputes. They are allowed 15 days parole
in six months to meet their relatives and families. Similarly,
there is Open Air Jail 'Navjiwan Shiver' at Lakhimpur for the
rehabilitation of surrendered dacoits from Bundelkhand region
spread over 124.75 acres of land with adequate housing and irrigation
facilities. There is Open Air Jail at Durgapur in Rajasthan where
the sole object is to render correctional and rehabilitational
services to the prisoners. This is also a kind of agricultural
colony spread over 160 acres of land. The unique feature is that
the prisoners stay in the farm along with their families in the
residential quarters provided for this purpose. They do work daily
and receive wages for that. If we study the management pattern
of Open Prisons in Andhra Pradesh, Assam, Gujarat, Maharashtra,
Mysore, Rajasthan and Uttar Pradesh, we understand that State's
Open Air Jail at Bilaspur, established in 1968, calls for fundamental
improvements. When the position in this Open Air Jail is not very
satisfactory, we can very easily conclude that in other closed
jails in the State drastic changes and radical improvements are
immediately called for. The necessity is of will to do and in
case the same is there, reforms are not difficult. In his affidavit
dated August 5, 1985, the Special Secretary (Home) states :
"The State Government is profoundly concerned over the welfare
of the prisoners and the need for jail reforms and would like
to introduce necessary jail reforms from time to time within the
resource limits of the Government. The present conditions of the
jails are not as ideal as the Government would like it to be.
However, the Government is considering steps to ameliorate the
conditions in the jail within its means."
36. But except for the good wishes for the prisoners, jail reforms
have not been undertaken after the filing of this affidavit. We
feel the State Government should undertake comprehensive jail
reforms within a year by appointing a high power committee comprising
of men from jail administration, social activists and criminologists
to advise the State Government in this field. In addition to various
other important aspects, the Committee will also look into matters
like : (1) opening of more Open Air institutions with sufficient
agricultural land attached to it so that prisoners hailing from
rural areas with agriculture background may continue to work in
the same atmosphere and rehabilitate suitably in their villages;
(2) provision for adequate work inside and outside jails; (3)
provision for different jails/correctional institutes for young
prisoners, juvenile offenders, hardened criminals and other prisoners
who suffer from mental aberrations; (4) opening of more Open Air
Jails in the State and one exclusively for women; (5) provision
for education and vocational training; (6) liberal remissions
and regular paroles; (7) greater opportunities to meet friends
and near relatives and facilities to allow them to discuss their
problems away from the policemen's gaze; (8) proper attention
for health and entertainment facilities for prisoners; (9) comprehensive
scheme for procurement of work for them and payment of reasonable/living
wages therefor; (10) provision for better dieting facilities etc.;
(11) comprehensive management of their wage funds and (12) provision
for after release guidance and help.
37. The petitions are, therefore, allowed in the aforesaid terms.
However, the parties are left to bear their own costs.
Home
HOME 