# STATE OF GUJARAT AND ANR v. HON'BLE HIGH COURT OF GUJARAT

- **Citation:** [1998] Supp. 2 S.C.R. 31
- **Court:** Supreme Court of India
- **Decided:** 1998-09-24
- **Bench:** M.M. Punchhi, K.T. Thomas, D.P. Wadhwa
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-gujarat-and-anr-v-hon-ble-high-court-of-gujarat-16467
- **Pages:** 56

## Headnote

Constitution of India-Article 23 (/)-Forced labour and BegarMeaning of-Words and Phrases.
A
B
)
Cons:itution of India-Article 23 (1)-Forced labour and Begar- C
Meaning of-Prisoners convicted for rigorous imprisonment-Labour without
consent imposed on by authority of law-Effect of-Whether violative of
Constitution of India-Article 23(2)-Public Purpose-Instance ofPrisoners convicted for rigorous imprisonment-Forced to do labour for
wages-Whether done for a public purpose-Held, (per Thomas, J.) D
imprisonment is for reformative and rehabilitative purpose which is a public
purpose.
Constitution of India-Article 23-Labour by prisoners undergoing
rigorous imprisonment-Payment for-Whether prisoners entitled to any
wages-Wages-Quantum of-Deduction on account of expenditure on the E
food and clothing of the prisoner-Whether permissible-Minimum Wages
Act, I 948-Section 3.
Indian Penal Code, 1860-Section 53-Kinds of punishmentsDifference between.
Penology-Punishment-Object of-Theories-Reformative and
rehabilitative theories of punishment-Desirability of
F
Victimology-Theories of-Restorative and Reparative theoriesDesirability of-Reparation-Meaning of-Held, victims of crime should not G
be ignored-Rules/law must be framed for providing compensation to victims/
their family-Constitution of India-Article 300 A.
The question of law which arose for determination in the present case
was as to what. should be the wages paid to the prisoners who are required
to do labour as a part of their punishment and whether any part of the wages H
31
32
SUPREME COURT REPORTS [1998] SUPP. 2 S.C.R.
A as payable to the prisoners but spent on their clothes and other amenities
etc. can be deducted.
B
Article 23(1) of the Constitution of India prohibits any "traffic in
human being and begar and other similar forms of forced labour". However,
by virtue of Article 23(2), State is not prevented from "imposing compulsory
service for public purposes". Originally, the draft of the constitution as
adopted by the Advisory Committee banned "forced labour in any form
including begar and in voluntary servitude except as punishment for crime
whereof the party shall have been duly convicted" However, no such exception
has been made for convicted persons in Article 23 in the Constitution of
C India as adopted by the Constituent Assembly.
A Division Bench of the Kera la High Court while dealing with prison
reforms held that the wages paid to the prisoners must be at par with the
wages fixed under the Minimum Wages Act, 1948. It turned down the request
of the Government to allow it to deduct the cost of clothes and food provided
D to the prisoner from the wages payable to him. The Division Bench d_irecl.ed
the State Government to design a just and reasonable wage structure for the
inmates of prisons and as interim measure pay Rs. 8 per day to the prisoners.
The stand taken by the Division Bench of the Kerala High Court was adopted
by the Gujarat High Court in another judgment.
E
F
The Rajasthan High Court directed the State Government to appoint a
commission to go into the wage structure for the convicted prisoners and to
frame rules. In the meanwhile, the Government was directed to pay @ Rs.
14 per day to skilled convict labour, Rs. 12 per day to semi-skilled convict
labour and Rs. 9 per day to non-skilled convict labour.
The High Court ofHimachal Pradesh also directed the Government to
appoint a Committee to look into the wage structure of the prisoners and
prohibited deduction of maintenance charges from the wages payable to the
•.
prisoners.
G
Being aggrieved, the various State Governments filed appeal~ before
this Court.
Disposing of the appeals, this Court
HELD : Per Thomas, J. (M.M. Punchhi, CJI., and D.P. Wadhwa, J.
H concurring on the conditions and directions issued to various State
STA TE OF GUJARAT v. H.C. OF GUJARAT
33
Governments).
I.I. It is lawful to employ the prisoners sentenced to rigorous
imprisonment to do hard labour whether he consents to do it or not. At

## Text

_Characters 0–39,723 of 133,914. This is a partial read: ask again with offset=39723 for what follows._

STATE OF GUJARAT AND ANR.
v.
HON'BLE HIGH COURT OF GUJARAT
SEPTEMBER 24, 1998
[M.M. PUNCHHI, C.J., K.T. THOMAS AND D.P. WADHWA, JJ.]
Constitution of India-Article 23 (/)-Forced labour and BegarMeaning of-Words and Phrases.
A
B
)
Cons:itution of India-Article 23 (1)-Forced labour and Begar- C
Meaning of-Prisoners convicted for rigorous imprisonment-Labour without
consent imposed on by authority of law-Effect of-Whether violative of
Constitution of India-Article 23(2)-Public Purpose-Instance ofPrisoners convicted for rigorous imprisonment-Forced to do labour for
wages-Whether done for a public purpose-Held, (per Thomas, J.) D
imprisonment is for reformative and rehabilitative purpose which is a public
purpose.
Constitution of India-Article 23-Labour by prisoners undergoing
rigorous imprisonment-Payment for-Whether prisoners entitled to any
wages-Wages-Quantum of-Deduction on account of expenditure on the E
food and clothing of the prisoner-Whether permissible-Minimum Wages
Act, I 948-Section 3.
Indian Penal Code, 1860-Section 53-Kinds of punishmentsDifference between.
Penology-Punishment-Object of-Theories-Reformative and
rehabilitative theories of punishment-Desirability of
F
Victimology-Theories of-Restorative and Reparative theoriesDesirability of-Reparation-Meaning of-Held, victims of crime should not G
be ignored-Rules/law must be framed for providing compensation to victims/
their family-Constitution of India-Article 300 A.
The question of law which arose for determination in the present case
was as to what. should be the wages paid to the prisoners who are required
to do labour as a part of their punishment and whether any part of the wages H
31
32
SUPREME COURT REPORTS [1998] SUPP. 2 S.C.R.
A as payable to the prisoners but spent on their clothes and other amenities
etc. can be deducted.
B
Article 23(1) of the Constitution of India prohibits any "traffic in
human being and begar and other similar forms of forced labour". However,
by virtue of Article 23(2), State is not prevented from "imposing compulsory
service for public purposes". Originally, the draft of the constitution as
adopted by the Advisory Committee banned "forced labour in any form
including begar and in voluntary servitude except as punishment for crime
whereof the party shall have been duly convicted" However, no such exception
has been made for convicted persons in Article 23 in the Constitution of
C India as adopted by the Constituent Assembly.
A Division Bench of the Kera la High Court while dealing with prison
reforms held that the wages paid to the prisoners must be at par with the
wages fixed under the Minimum Wages Act, 1948. It turned down the request
of the Government to allow it to deduct the cost of clothes and food provided
D to the prisoner from the wages payable to him. The Division Bench d_irecl.ed
the State Government to design a just and reasonable wage structure for the
inmates of prisons and as interim measure pay Rs. 8 per day to the prisoners.
The stand taken by the Division Bench of the Kerala High Court was adopted
by the Gujarat High Court in another judgment.
E
F
The Rajasthan High Court directed the State Government to appoint a
commission to go into the wage structure for the convicted prisoners and to
frame rules. In the meanwhile, the Government was directed to pay @ Rs.
14 per day to skilled convict labour, Rs. 12 per day to semi-skilled convict
labour and Rs. 9 per day to non-skilled convict labour.
The High Court ofHimachal Pradesh also directed the Government to
appoint a Committee to look into the wage structure of the prisoners and
prohibited deduction of maintenance charges from the wages payable to the
•.
prisoners.
G
Being aggrieved, the various State Governments filed appeal~ before
this Court.
Disposing of the appeals, this Court
HELD : Per Thomas, J. (M.M. Punchhi, CJI., and D.P. Wadhwa, J.
H concurring on the conditions and directions issued to various State
STA TE OF GUJARAT v. H.C. OF GUJARAT
33
Governments).
I.I. It is lawful to employ the prisoners sentenced to rigorous
imprisonment to do hard labour whether he consents to do it or not. At the
same time, it is imperative that the prisoners should be paid equitable wages
for the work done by them. [53-F-G)
In the matter of Prison Reforms, Enhancement of Wages to persons,
(1983) KLT 512 and Gurdev Singh v. State, AIR (1976) HP 76, referred to.
1.2. Article 23 of the Constitution of India prohibits three unsocial
practices: (1) Traffic in human beings, (2) Begar and (3) Similar forms of
A
B
>
forced labour. The ban against traffic in human beings is absolute while C
prohibition against "forced labour" is made subject to one exception, i.e.
State is permitted to impose compulsory service if such service is necessary
for public purpose. [43-G-H; 44-A-B)
1.3. Forced labour may arise in several ways, it may be physical force,
it may he force exerted through a legal provision such as the provision for D
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. [44-D-E]
Naib Singh v. State of Punjab, AIR (1983) SC 855; G. V. Godse v. State,
AIR (1961) SC 600; Vasudevan v. Mittal, AIR (1962) Born 53 and People's
Union for Democratic Rights v. Union of India, (1982] 3 SCC 235, referred
to.
2.1. Imposition of forced labour on a prisoner will get protection from
the ban under Article 23 of the Constitution oflndia only if it can be justified
'
as a necessity to achieve some public purpose. (46-A]
E
F
2.2. The modern diagnosis made by the criminologists is causing a sea
change to the whole approach towards crime and punishment. The emphasis G
involved in punishment has now been transposed from retribution of cure and
reform so that the original man, who was mentally healthy, can be recreated
from the ailing criminal. Reformative approach is now very much intertwined
with rehabilitative aspect to a convict prisoner. Reformation and rehabilitation
of a prisoner are of great public policy. H~nce they serve a public purpose.
(46-E; 47-F-G] H
34
SUPREME COURT REPORTS [1998) SUPP. 2 S.C.R.
A
2.3. It is hence reasonable to conclude that a directive from the court
under the authority of law to subject a convicted person (who was sentenced
to rigorous imprisonment) to compulsory manual labour gets legal protection
, •.
under the exemption provided in Clause (2) of Article 23 of the Constitution
oflndia. [47'-G-H)
B
The Framing of India's Constitution by B. Shiv Rao, referred to.
2.4. Reformation should be the dominant objective of a punishment and
during incarceration every effort should be made to recreate the good man
out of a convicted prisoner. An assurance to him that his hard labour would
eventually snowball into a handsome saving for his own rehabilitation would
C help him to get stripped of the moroseness and desperation in his mind while
toiling with the rigours of hard labour during the period of his jail life.
[47-E-F)
D
Mohammad Giasuddin v. State of Andhra Pradesh, [1977) 3 SCC 287,
referred to.
3.1. Like any other workman a prisoner is also entitled to wages for
his work. Paying a pittance to him is virtually paying nothing. Even if the
amount paid to them is a little more than a nominal sum the resultant
· position would remain the same. However, the request of the Government to
E permit them to deduct the expenses incurred for food and clothes of the
prisoners from the minimum wages rates is a reasonable request. There is
nothing uncivilised nor unsociable in it. (48-E-F; 51-F-G)
Bhuvan Mohan Patnaik v. State of Andhra Pradesh, [1975] 3 SCC 185
and Express Newspaper Ltd. v. Union of India, [1959) SCR 12, referred to.
F
3.2. The State Government has the obligation to bear the expenses
needed for providing food and clothes and other amenities to every pris~ner,
r
whether his detention is during post conviction period or pre-conviction
<._
· period as under-trial prisoner or has been preventively detained or is interned
as a consequence of defaulting payment of fine imposed as punishment. If
G wages at the rates fixed under the Minimum Wages Act, 1948 are paid to
a prisoner without making any deduction for such expenses, its net effect
would be that he gets wages apparently more than the emoluments of a
workman who does the same type of work outside the jail. This is because
the latter has to meet his expenses for food and clothes from the minimum
wages paid to him. Even the Minimum Wages Act, 1948 permits the employer
H to make deductions of certain kinds from the wages of an employed person.
STA TE OF GUJARAT v. H.C. OF GUJARAT
35
The deduction of cost of clothes and food supplied to an employee from his A
wages is not inconsistent with legislative policy. [50-G; 51-A-B; D-F]
3.3. The Government, however, cannot deduct any substantial portion
from the wages on that account. The Government can arrive at the reasonable
percentage to be deducted from Minimum Wages taking into account the
average amount which the Government is spending per prisoner for providing B
food, clothes and other amenities to him. [51-G-H]
4.1. It is recent trend in sentencing policy to listen to the wailing of
the victims. Rehabilitation of the prisoner need not be by closing the eyes
towards the suffering victims of the offence. Restorative and reparative
)
theories have developed from the aforesaid thinking. [52-B-D]
C
4.2. Section 357 of the Criminal Procedure Code, 1973 provides some
reliefs to the victims as the court is empowered to direct payment of
compensation to any person for any loss or injury caused by the offence. But
in practice the said provision has not proved to be of much effectiveness.
Many persons who are sentenced to long term imprisonment do not pay the D
compensation and instead they choose to continue in jail in default thereof.
It is only when fine alone is the sentence that the convicts invariably choose
to remit the fine. But those are cases in which the harm inflicted on the
victims would have been far less serious. Thus the restorative and reparative
theories are not translated into real benefits to the victims. [53-B-D]
4.3. It is constructive thinking for the State to make appropriate law
for diverting some portion of the income earned by the prisoner when he is
E
in jail to be paid to deserving victims. In the absence of any law for that
purpose no direction can be issued to set apart any portion of the prisoner's
earned wages for payment to the victims because of the interdict contained F
in Article 300A of the Constitution of India. [53-D-E]
5. The discussion detailed above leads to the following conclusions.
(i)
It is lawful to employ the prisoners sentenced to rigorous
imprisonment to do hard labour whether he consents to do it or
not.
(ii) It is open to the jail officials to permit other prisoners also to do
any work which they choose to do provided such prisoners make
a request for that purpose.
G
(iii) It is imperative that the prisoner should be paid equitable wages H
36
A
B
c
D
SUPREME COURT REPORTS [1998] SUPP. 2 S.C.R.
for the work done by them. In order to determine the quantum of
equitable wages payable to prisoners the State concerned shall
constitute a wage fixation body for making recommendations. It
should be done as early as possible.
(iv) Until the State Government takes any decision on such
recommendations every prisoner must be paid wages of the work
done by him at such rates or revised rates as the Government
concerned fixes in the light of the observations made in the
judgment For. this purpose, all the State Governments are directed
to fix rate of such interim wages within six weeks from the date
of the judgment and report to this Court of compliance of this
direction.
(v)
The State concerned is recommended to make law for setting
apart a portion of the wages earned by. the prisoner to be paid as
compensation to deserving victims of the offence the commission
of which entailed the sentence of imprisonment to the prisoner,
either directly or through a common fund to be created for this
purpose or in any other feasible mode. (53-E-H; 54-A-B)
Per Wadhwa (Partly dissenting)
1.1. Putting a prisoner to hard labour while he is undergoing sentence
..
E of rigorm s imprisonment awarded to him by a court of competent jurisdiction
cannot b._'equated with 'begar' or 'other similar forms offorced labour' and
there is no violation of clause (1) of Article 23 of the Constitution of India.
(82-E]
1.2. Article 23 of the Constitution oflndia prohibits 'begar' and 'other
F similar forms of forced labour'. The meaning of these words can be applied
to cases where labourers are paid at a rate lower than that fixed under the
Minimum Wages Act, 1948. In those cases labourers though entitled to
minimum wages are forced to accept remuneration at a lower rate because
of poverty, unemployment or other similar circumstances. On the other
G hand, the prison authorities are obliged to put the prisoners to hard work
otherwise they will be disobeying the court mandate and may be liable for
court's wrath. A prisoner is forced to do hard labour as part of his punishment
for the crime committed by him and this punishment is imposed upon him
by a court of competent jurisdiction in accordance with law. It cannot be said
that a prisoner sentenced to undergo imprisonment with hard labour would
H be doing 'begar' if prison authorities put him to hard labour. It cannot also
)
STATE OF GlJJARA T v. H.C. OF GUJARAT
37
be 'other similar forms of forced labour'. (75-F-H; 76-A)
A
1.3. There will be no violation of Article 23 of the Constitution oflndia
if prisoners doing hard labour when sentenced to rigorous imprisonment are
not paid wages. Wages are payable only under the provisions of Prisons Act
and.Rules made thereunder. Though prison reforms are must and prisoners
doing hard labour are now being paid wages but the message must be loud B
and clear and in unmistakable terms that crime does not pay. [76-F)
1.4. The Constitution of India, however, does not bar a State, by
appropriate legislation, from granting wages (by whatever name called) to
prisoners subject to hard labour under courts' orders, for their beneficial C
purpose or otherwise. [82-F)
1.5. It is not that prisoner is entitled to minimum wage fixed under the
Minimum Wages Act, 1948. But there has to be some rational basis on
which wages are to be paid to the prisoners. [67-A)
Rama Murthy v. State of Karnataka, (1997) 2 SCC 642; People's
Union for Democratic Rights and Ors. v. Union of India and Ors., [1982) 3
SCC 235; Gurdev Singh and Ors. v. State of Himachal Pradesh and Ors.,
(1992) Cal. L.J. 2542; Paola Bhaskara Vijayakumar v. State of Andhra
Pradesh and Anr., AIR (1988) AP 295; Sanjit Roy v. State of Rajasthan,
D
·-I
(1983) l SCC 525; Olga Tellis and Ors. v. Bombay Municipal Corporation E
and Ors., [1985) 3 SCC 545 and S. Vasudevan and Ors. v. S.D. Mital and
Ors., AIR (1962) Born. 53, referred to.
Twenty-one Detained Persons against The Federal Republic a/Germany
(decided on April 6, 1968 by the European Convention on Human Rights); F
United Nations Study on Prison Labour, (1955), referred to.
The Framing of India's Constitution by B. Shiva, referred to.
2.1. A victim of crime cannot be a "forgotten man" in the criminal
justice system. It is he who has suffered the most. His family is ruined G
particularly in case of death and other bodily injury. This is apart from the
factors like loss of reputation, humiliation, etc. An honour which is lost or
life which is snuffed out cannot be recompensed but then monetary
compensation will at least provide some solace. The victim is certainly
entitled to reparation, restitution and safeguards of his rights. Criminal
justice would look hollow if justice is not done to the victim of the crime. H
38
SUPREME COURT REPORTS (1998) SUPP. 2 S.C.R.
A Subject of victimology is gaining ground. [81-A-C]
2.2. Reparation is taken to mean the making of amends by an offender
to his victim, or to victims of crime generally, and may take the form of
compensation, the performance of some service or the return of stolen
\ ..,
property (restitution), these being types of reparation which might be described
B as practical or material. The term can also be used to describe more intangible
outcomes, as whether an offender makes an apology to a victim and provides
some reassurance that the offence will not be repeated, thus repairing the
psychological harm suffered by the victim as a result of the crime.[81-D-F]
'
2.3. To bar any objection to the payment of reparation to the victim on
C the ground of violation of Article 300 A of the Constitution of India, rules
can be framed under the Prisons Act or otherwise. When a Body is set up
to consider the amount of equitable wages for the prisoners, a Prison Fund
can be created in which a certain amount from the wages of the prisoners
be credited and out of that an amount be paid to the victim or for the upkeep
D fJf his family, as the rules may provide for the purpose. [82-C-D]
E
Jagmohan Singh v. The State of UP., [1973] 1 SCC 20; Palaniappa
Gounder v. State of Tamil Nadu and Ors., [1977] 2 SCC 634; Sarwan Singh
and Ors. v. State of Punjab, [1978] 4 SCC 111 and Hari Singh v. Sukhbir
Singh and Ors., [1988] 4 SCC 551, referred to.
Payne v. Tennessee, III S. Ct. 2597, referred to.
Black's Law Dictionary, referred to.
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
p 308 of 1.986 Etc. Etc.
From the Judgment and Order dated 31.1.85 of the Gujarat High Court
in Reference No. 2 of 1985.
Soli_. J. Sorabjee, Attorney General, Dr. N.M. Ghatate, Kapil Sibal, (AC),
G A.S. Nambiar, N.N. Goswami, Dr. Rajeev Dhawan, Ms. Meenakshi Arora, Ms.
H. Wahi, Ms. Sumita Hazarika, G. Prakash, Aruneshwar Gupta, Ms. Reena
Bagga, Srilok Nath Rath, Manoj K. Das, Dr. Nafis A Siddiqui, H.K. Puri, Rajesh
Srivastava, Ujjwal Banerjee, (R.B.B. Ray) (AC) (NP), Ashok Kumar Sharma, P.
Parmeswaran, Gopal Jain, Devika Bezbarwah, Arun Sharma, B.K. Prasad, D.S.
Mehra, L.R. Singh, S.K. Mehta, Dhruv Mehta, Fazlin Anam, Ms. Shobha, A.K.
H Jha, M. Veerappa, K.H. Nobir Singh, S.K. Agnihotri, Naveen Kumar Singh,
..
STATE OF GUJARAT v. H.C. OF GUJARAT [THOMAS, J.]
39
Sakesh Kumar, Uma Nath Singh, Kailash Vasdev, C.K. Sasi, K.B. Rohtagi, Ms. A
Aparna Rohtagi Jain, Gopal Singh, A. Mariarputham, Ms. Aruna Mathur, V.G.
Pragasam, Ranjan Mukherjee, Ms. S. Janani, Ms. Bina Gupta, S.K. Nandy,
Dilip Sinha, J.R. Das, K. Swami, C.V.S. Rao, M.T. George, Ms. A. Subhashini,
N.K. Sharma, K.V. Venkataraman, L.R. Singh, R. Sathish, R.B. Misra, Kamlendra
Misra, N. Ganpathy, P.N. Misra, S.A. Syed, Ashok Mathur, T. Sridharan, T.A. B
Khan, D.M. Nargolkar, G. Prabhakar, Ms. Lira Goswami, Ms. Ameeta Duggal,
Rajiv Mehta, R.S. Sodhi, Jasbir Malik, Prem Malhotra, Anil Shrivastav, Sunil
Kumar Jain, Vijay Hansaria, J.K. Bhatia, B.B. Singh and Ashok Mathur,
Advocates with them for the appearing parties.
The following Judgments/Order of the Court were delivered :
C
While concluding his opinion my learned brother K.T. Thomas, J. has
made certain directions to the respective governments to which conclusion
my learned brother D.P. Wadhwa, J. in his separate opinion has accorded
assent. I too would accord approval to those directions and order disposal
of these appeals and writ petitions.
D
THOMAS, J. A delicate issue requiring very circumspective approach
is mooted before us : Whether prisoners, who are required to do labour as
part of their punishment should necessarily be paid 'wages for such work at
the rates prescribed under Minimum Wages law. We have before us appeals
filed by some State Governments challenging the judgments rendered by the E
respective High Courts which in principle upheld the contention that denial
of wages at such rates would fringe on infringement of the constitutional
protection against exaction of forced labour.
Shri Rajeev Dhawan, senior counsel put before us the view points of
National Human Rights Commission (NHRC) which favours the principle that F
prisoners should be paid wages at the rates prescribed under the Minimum
Wages law. On the request of this Court Shri Kapil Sibal, senior counsel
addressed arguments as Amicus Curiae. During the course of hearing we felt
the need to hear the Attorney General for India on this important question.
Shri Soli J. Sorabjee, Attorney General, in response to our request addressed G
arguments substantially in tune with the approach made by the other two
senior counsel. We are grateful to all the learned counsel who assisted us
with their valuable contributions.
The State Governments which preferred the appeals are generally in
agreement with the view that prisoners should be paid wages and that the H
40
SUPREME COURT REPORTS [1998] SUPP. 2 S.C.R.
A present rates of wages paid to them are too meagre and hence they must be
enhanced. To what extent is the plank on which the State Government contested
these causes by challenging the judgments under appeals.
A Division Bench of the High Court ofKerala (Subramoniam Poti CJ and
Chandrasekhara Menon, J) in the decision entitled as "In the matter of prison
B reform enhancement of wages of prisoners" (1983 KLT 512), seems to have
taken the lead in this area and suggested that the wages given to prisoners
must be at par with the wages fixed under the Minimum Wages Act (for short
MW Act) and the request to deduct the cost for providing food and clothes
to the prisoner from such wages was spurned down. The Division Bench
C directed the State Government to design a just and reasonable wage structure
for the inmates of the prisons who are employed to do labour, and in the
meanwhile to pay the prisoners at the rate of Rs. 8 per day until Government
is able to decide the appropriate wages to be paid to such prisoners. Learned
counsel for the State submitted before us that the challenge is limited to the
. question whether deduction of cost of food and clothes is permissible.
D
Gujarat High Court adopted the same stand as the Division Bench of
#
Kerala had taken in the decision cited supra (1983 KL T 512). The judgment
was rendered by a Division Bench headed by P Subramaniam Poti, CJ and the
reasons adverted in the decision of the Kerala High Court were reiterated.
E
A Single Judge of Rajasthan High Court suggested that the State
Government shall appoint a Commission to go into the entire wage Structure
for the convicted prisoners, and to lay down rules, and in the meanwhile
directed the State to pay to the prisoners at the rates tentatively fixed by the
learned Ju?ge. A Division Bench confirmed the said judgement which is now
F challenged by the State of Rajasthan.
A Division Bench of the High Court of Himachal Pradesh (Bhawani
Singh and Devendra Gupta, JJ) vide Gurdev Singh v. State, AIR (1976) HP
76 directed the State Government to undertake comprehensive jail reforms and
appoint a high powered comm'.ttee within a year to look into the various
G aspects including payment of reasonable minimum wages to the prisoners. At
the same time the Division Bench directed that "the provisions permitting
realisation of maintenance charges from the prisoners be dispensed with
forthwith and no future recovery be made in this behalf." State of Himachal
Pradesh has now challenged the said judgment before us.
H
All the above appeals and two writ petitions filed by some prisoners (or
STATE OF GUJARAT v. H.C. OF GUJARAT [THOMAS, J.]
41
on their behalf), for directing the State Government concerned to enchance A
the wages payable to the prisoners have been heard by us in extenso.
Indian prisons are now crammed with prisoners. In many jails they are
so over-crowded that the amenities designed for a far less number of inmaces
are now being shared by disproportionately large number of internees therein,
e.g. In Bihar jails, as against a prison capacity of 26,300 the actual number B
of internees during first halfof 1996 was 36, 700. In Madhya Pradesh the figure
is 27,300 as against a prison capacity of 17,720. Even in Delhi it has crossed
8,300 as against a prison capacity of 2,400.
There are principally two categories of prisoners: (1) under-trial prisoners C
and (2) convicted prisoners (besides them there are those detained as
preventive measure, and those undergoing detention for default of payment
of fine). Those in the first category cannot be required to do any labour while
they remain in jail, but they far outnumber all the remaining categories put
together. Statistics show that in most of the States the under-trial prisoners
have overwhelming majority when compared with the number of convicted D
prisoners, e.g. Under-trial prisoners in Bihar jails are 84.04% of the total
inmates of the jails. In U.P. the percentage is 85.17. In Madhya Pradesh it is
64.22% and in most other States the percentage of under-trial prisoners is
above 50.
Jail authorities are enjoined by law to impose hard labour on a particular E
section of the convicted priscners who were sentenced to rigorous
imprisonment. Section 53 of the Indian Penal Code which falls under the
Chapter entitled "Of Punishments" vivisects punishments into five categories,
of which the category "imprisonment" has been further sub divided into two
sub categories as "rigorous" and "simple". Rigorous imprisonment is explained F
as "imprisonment with hard labour". Section 60 of the Indian Penal Code
confers power on a sentencing court of direct that "such imprisonment shall
be wholly rigorous or that such imprisonment shall be wholly simple, or that
any part of such imprisonment shall be rigorous and the rest simple". The
sentence of "imprisonment for life" tagged along with a number of offences
delineated in the Indian Penal Code is interpreted as "rigorous imprisonment G
for life" and not simple imprisonment. (Vide the decisions of constitution
Bench in G.V Godse v. State, AIR (1961) SC 600, a:id Naib Singh v. State of
Punjab, AIR (1983) SC 855.
A person sentenced to simple imprisonment cannot be required to work
unless he volunteers himself to do the work. Section 374 of the IPC makes H
42
SUPREME COURT REPORTS [1998) SUPP. 2 S.C.R.
A . imposition of work on an unwilling person as an offence. The section reads
thus :
"Whoever unlawfully compels any person to labour against the will
of that person shall be punished with imprisonment of either
descriptions, for a term which may extend to one year or with fine or
B
with both."
But the jail officer who requires a prisoner sentenced to rigorous
imprisonment to do hard labour would be doing so as enjoined by law and
mandated by the court. No prisoner sentenced to rigorous imprisonment can
conceivably complain that the jail authorities committed the offence under
C Section 374 of IPC by compelling him to do work during the term of his
imprisonment. So the 1ask to do labour can be imposed on a prisoner only
if he has been sentenced to rigorous imprisonment Neither the under-trial
internees nor the detainees with simple imprisonment nor even detenus who
are kept in jails as preventive measures can be asked to do manual work
D during their prison term. It is a different matter that he is allowed to do it at
his request.
Two profiles emerge from the above discussion. First is, a vast majority
of prisoners are not concerned about the wages for the labour in jails. It is
only for a small section of the detainees that this exercise would benefit.
E Second is that hard labour is enforced on those sentenced to rigorous
imprisonment by the sanction of law and jail authorities cannot disobey the
directions of the court which passed the sentence.
The first contention before us was that when hard labour is made a part
of punishment as lawfully imposed, can it be equated with the normal employerF employee phenomenon so as to entitle the prisoner to the social and legislative
benefits which a free employee gets outside the walls of the prison. The
picture endeavoured to be portrayed before us, in support of the contention,
is that in a country like ours where unemployment among youth is so rampant
and acute, a life assuring reasonably good living and a minimum income at
the rates fixed for employees of industrial and commercial establishments
G would provide great incentive to the unemployed youth to resort to crimes
for carving out a route to the jails, albeit under conditions of incarceration.
This would gallop the crime rates upward as many among the unemployed
may feel tempted to avail themselves of such advantages despite the
disadvantages, apprehends the aforesaid school of thought.
H
But that argument will not and should not deter us from considering
'·
)
STATE OFGUJARATv. H.C. OF GUJARAT [THOMAS, J.]
43
mm1mum wages for prisioners for the average individual would abhor A
incarceration in jails, whatever comfort and monetary benefit it may provide
to them. The reality is that even those inside the jails, by and large, are
looking forward to the day of their release so as to get their personal freedom
restored so that they can move about freely in society, live with their beloveds
and to enjoy the free atmosphere of life. Most of them are in certitude of the B
precise number of months, weeks and days they had already spent in jails as
well as the number of days they secured by way of remissions and also the
remaining period they have to continue in jails before attaining the cherished
exit from the iron gates of the bastions.
Learned Chief Justice P. Subramaniam Poti, speaking for the Division C
Bench of the Kerala High Court, in the decision cited above (1983 Kerala Law
Times 512) has frescoed a picture of reality that "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 car. be back in the affectionate atmosphere at home ..
The most deterrent factor in imprisonment is really the fact of curtailment of D
personal freedom. It may not be necessary to make it harsh and inhuman in
order to render the sentence of imprisonment a deterrent."
Article 23 of the Constitution prohibits "forced labour" and mandated
thaf any contravention of such prohibition shall be an offence punishable in
accordance with law. That Article reads thus :
"23. Prohibition of traffic in human beings and forced labour-
(!) Traffic in human beings and begar and other similar forms of
forced iabour are prohibited and any contravention of this provision
E
shall be an offence punishable in accordance with law.
F
(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 of grounds only of religion,
race, caste or class or any of them."
Articles 23 and 24 are the only two provisions subsumed under the G
heading "Right against exploitation." The latter provision prohibits children
being employed in factory or mine or other hazardous employments. In the
former three unsocial practices are prohibited: (I) Traffic in human beings, (2)
Begar and (3) similar forms of forced labour. Traffic in human beings means
trade in human beings. The ban against traffic in human beings is absolute H
44
SUPREME COURT REPORTS [1998) SUPP. 2 S.C.R.
A while prohibition against "forced labour" is made subject to one exception,
i.e., State is permitted to impose compulsory service if such service is necessary
for public purpose. Otherwise the ban against forced labour is also absolute.
The expression "forced labour" seems to be collected with the word "begar".
The word "begar" was of Indian origin and has, in due course of time gained
B entry into the English vocabulary. That word is understood to be the labour
or service which a person is forced to give without receiving any remuneration
for it. It was so held by a Division Bench of the Bombay High Court in
Vasudevan v. Mittal, AIR (1962) Bombay 53 and that was approved by this
Court in People's Union for Democratic Rights v. Union of India, [1982] 3
SCC235.
c
When the Constitution qualified "forced labour" by associating it with
other words "begar and other similar forms" it was not for shrinking the scope
of the prohibition to some types of forced labour. Learned Judges in People's
Union for Democratic Rights have observed that forced labour may arise in
several ways, it may be physical force, it may be force exerted through a legal
D provision such as the 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. The Bench observed
thus:
E
"We are, therefore, of the view that where a person provides labour
or service to another or 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 Article 23."
F
We are in respectful agreement with the aforesaid view.
Would the Constitution-makers have thought that imposition of hard
labour on the convicted prisoners is not included within the concept of
"forced labour" envisaged in Article 23. In many other Republican
Constitutions protection against forced labour is subjected to the exception
G that hard !abour imposed on convicted persons would not be "forced labour."
In the Constitution of United States of America Section I of the
Thirteenth amendment 1865 contains the following provision :
"(i) Neither slavery nor involuntary servitude, except as a punishment
H
for crime whereof the party shall have been duly convicted, shall
'
.,.
i
)
....
STATE OF GUJARATv. H.C. OF GUJARAT (THOMAS, J.]
45
exist within the United State, or any place subject to their jurisdiction." A
(emphasis supplied)
Same exception is seen incorporated in the analogous provisions of the
Constitution of a large number of other Republics. For example, Burma, Japan,
Cyprus, Republic of Korea, Malaysia, Nepal, Pakistan etc. to cite one example, B
Article 19 of the Constitution of Burma, 1948 reads thus :
"i .. Traffic in human beings, and
ii. Forced labour in any form and involuntary servitude, except as a
punishment for crime whereof the party shall have been duly convicted, C
shall be prohibited
Explanation:- Nothing in this section shall prevent the State from
imposing compulsory service for public purpose without any
discrimination on grounds of birth, race, religion or class.
(emphasis supplied) D
In this connection it is worthy of notice that during the making ()f our
Constitution the same exception was thought of in the original draft. Clause
11 of the Chapter for Fundamental Rights as adopted by the Advisory
Committee read like this :
"11. (a) Traffic in human beings, and
(b) forced labour in any form including begar and involuntary servitude
except as a punishment for crime whereof the party shall have been
duly convicted,
are hereby prohibited and any contravention of this prohibition shall
be an offence."
Explanation - "Nothing in this sub-clause shall prevent the State
from imposing compulsory service for public purposes without any
E
F
discrimination on the ground of race, religion, caste or class."
G
After a full debate the Constituent Assembly adopted clause 11 by
chiselling it down to the form in which Article 23 of the Constitution is now
shaped. (vide page 252 to 257 of "The Framing of India's Constitution" - A
Study by B. Shiv Rao). B.N. Ambedkar in his summing up remarks said in the
Constituent Assembly that the exception envisaged in sub-clause (2) regarding H
J
46
SUPREME COURT REPORTS [1998] SUPP. _2 S.C.R.
A "public purposes" is very wide enough to contain all such exceptional
conditions. Thus it is apparently clear that imposition of forced labour on a
prisoner will get protection from the ban under Article 23 of the Constitution
\
only if it can be justified as a necessity to achieve some public purpose.
So the question now to be considered is, whether such compulsory
B labour can be justified by testing it on the touchstone of "public purpose".
What public purpose possibly be served by exacting such labour work from
convicted prisoners? It is said that hard labour imposed on the proved
offenders would have a deterrent effect against others from committing crimes
and th!ls society would, to that extent, be protected from perpetration of
c criminal offences by others.
'
This is the context to consider whether deterrence is the main objective
for punishment. Among the conflicting theories for punishment modem
criminologists are highlighting the reformative effect on the punished criminal
as the most germane aspect. Jereme Bentham who propounded the theory of
D deterrence is now considered as apostle of a conservative old school of
thought. Retributive theory of punishment has waned into a relic of the
permittivity because civilised society has realised that retribution cannot
solve the problem of escalating criminal offences. Crime is now considered to
be a problem of social hygiene. That modem diagnosis made by criminologists
is now causing a sea change to the whole approach towards crime and
E punishment. The emphasis involved in punishment has now been transposed
from retribution to cure and reform so that the original man, who was mentally
healthy, can be recreated from the ailing criminal.
To Mother Teresa "the prisoner is Jesus to me". The world renowned
F philanthropist, as she was, would have been very much inspired by the
scriptural words pronounced by Lord Jesus as quoted in the gospel according
to Mathew (chapter 25 verse 36) :
"Then the King will say to those on his right hand -'Come ye, who
are blessed by my Father in Heaven, for, I was ......... in prison and you
G
came to see me you cursed ones, for, I was ........ in prison and you
did not visit me".
It is a grand transformation recorded in the epics that the hunter Valmiki
turned out to be a poet of eternal recognition. If the powers which brought
about that transformation had remained inactive the world would have been
H poorer without the great epic "Ramayana." History is replete with instances
)
)
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STATE OF GUJARATv. H.C. OF GUJARAT [THOMAS, J.]
47
of bad persons transforming into men of great usefulness to humanity. The A
causes which would have influenced such swing may be of various kinds.
Forces which condemn a prisoner and consign him to the cell as a case of
irredeemable character belong to the pessimistic society which lacks the
vision to see the innate good in man.
Theory of reformation through punishment is grounded on the sublime B
philosophy that every man is born good but circumstances transform him into
a criminal. The aphorism that "If every saint has a past every sinner has a
future" is a tested philosophy concerning human life: V.R. Krishna Iyer. J. has
•
taken pains to ornately fresco the reformative profile of the principles of
sentencing in Mohammad Giasuddin v. State of Andhra Pradesh, [1977] 3 C
SCC 287. The following passage deserves special mention in this context:
"If the psychic perspective and the spiritual insight we have tried to
project is valid, the police bully and the prison drill cannot 'minister
to a mind diseased', nor tone down the tension, release the repression,
unbend the prevention, each of which shows up as debased deviance, D
violent vice and behavioural turpitude.