Full Judgment Text
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PETITIONER:
STATE OF GUJARAT AND ANOTHER
Vs.
RESPONDENT:
HON’BLE HIGH COURT OF GUJARAT
DATE OF JUDGMENT: 24/09/1998
BENCH:
D.P. WADHWA, J.
ACT:
HEADNOTE:
JUDGMENT:
CIVIL APPEAL Nos. 8443-44/83, W.P.(Crl.) Nos. 1113-1122/83
W.P.(C) No. 14150/84, W.P.(Crl.) 19/93, 494/92
C.A. No. 6125/95 AND W.P.(C) No. 12223/84
JUDGMENT
D.P.WADHWA, J.
I agree with the directions issued by my learned
brother K.T. Thomas, J. I, however, find myself unable to
subscribe to the view that putting prisoner to hard labour
and not paying wages to him would be violative of clause (1)
of Article 23 of the Constitution and this violation is
saved only under clause (2) thereof which provides that
nothing in Article 23 shall prevent the State from imposing
compulsory service for public purposes.
This is yet another decision in string of decisions
of this Court dealing with prison reforms and prison
administration, last one being Rama Murthy Vs. State of
Karnataka (1997 (2) SCC 642) - judgment delivered on
December 23, 1996. In the case of Rama Murthy this Court
while considering various earlier decisions dealt with the
problems of overcrowding, torture and ill-treatment, neglect
of health and hygiene, insubstantial food and inadequate
clothing, deficiency in communication, streamlining of jail
visits, management of open air prisons and delar in trials
of inmates in the prisons. After listing all these causs,
this Court issued directions to the States, the Union
Territories and to the Central Government as to why they
should not act on the causes detailed in the jument. Notices
were issued to show cause within th months and the matter hs
been kept for further proceedings. The case of Rama Muthy hs
been tagged with the cases now before us, which deal with
the question of wages pable to th prisoners sentenced to h
labour.
State of Kerala aggrieved by judgment dated April
13, 1983 of Divisioin Bench of the Kerala High COurt, sought
special leave to appeal, which was granted by order dated
May 27, 1983, and tghe judgment stayed. By the impugned
judgment the Kerala High Court gave the following
directions:-
"We therefore direct that forthwith the
Government make arrangements to pay to the inmates
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of the prisons, who are put to work, wages at Rs.8/-
per day, part of which they may utilise for
themselves, part of which they could arrange to
remit to their dependents and part accumulated to be
paid to them at the time of release. Rule 384 of the
Kerala Prison rules may need immediate attention in
the light of this Judgement and we hope the
Government will look into it forthwith."
Kerala High Court was considering the question of
justification for giving direction as to wages to be paid to
the prisoners in the jails in the State of kerala. The
issue, in fact, was whether in law the claim of the
prisoners in jails for proper remuneration for the work they
are compelled to do not on their own volition, but because
of the compulsion of the prison rules is enforceable by the
Court’s mandate. High Court examined the provisions of
Indian Penal Code (IPC) - Sections 53 and 55 providing for
rigorous imprisonment, which is imprisonment with hard
labour. It also examined the Travancore-Cochin Prisons Act,
1950, Prisons Act (9 of 1894) and the Kerala Prison Rules.
These Rules, it would appear, provide for payment of wages
to the prisoners, Under rule 384, which deals with
utilization of wages, one third of the wages earned by the
prisoner is meant for his personal needs in the jail, one
third is sent to the family for its need and remaining one
third for being paid to the prisoner on his release. One
third to be utilized by the prisoner in jail, is given to
him in thee form of coupons for making purchases from the
jail canteen. He could also purchase remission for the wages
so paid to him. Prisoners centenced to simple imprisonment
are given work only on the basis of their request and
subject to their physical fitness.
On the pleas raised in the writ petition the Kerala
High Court framed the following question to be answered by
it which it said it was called upon to consider in this
case:-
"It a prisoner who has to undergo his term of
sentence in jail entitled, as of right, to claim that
he should be paid wages for his out turn of work? Is
he entitled to insist that the wages paid should not
be illusory but reasonable? Can be complain to this
court that his personal liberty is infringed and his
rights eroded by compulsion to do hard labour
practically free? Is a Court called upon to grant
relief in such a case? If so, what should be the
approach of the COurt in the circumstances?"
After detailed discussion on various aspects
including the object of punishment, the reformatory theory
and other such aspects including the advantages of giving
fair wages to prisoners the High Court gave the directions as
aforesaid. The court also examined the provisions of Article
23 of the Constitution with reference to decision of this
court in People’s Union for Democratic Right and others Vs.
Union of India and others (AIR 1982 SC 1473 = 1982 (3) SCC
235) and held that it was the mandate of the Constitution
that the prisoners are to be paid wages for the work done by
them. Then the court examined the question of what would be
the reasonable wages and came to the conclusion that it would
be Rs. 8/- per day, which would be on adhoc basis subject to
any alteration later when as a result of further study,
research and assessment the Government was able to decide
upon appropriate wages of the prisoners.
This Court, after having issued notice in the special
leave petition, also directed that the State of kerala
undertook that in the event of its failure in the appeal, the
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amount due to various prisoners could be paid to them
including those, who had been released since the date of the
impugned judgment of the High Court.
Judgment of the Kerala High COurt was delivered by
subramonian Poti, Ag.C.J. When Subramonian Poti.J. was
transferred to Gujarat High Court as C.J. similar question
was also raised in that High Court. Full Bench of Gujarat
High Court gave judgment dated January 31, 1985 on similar
lines as that of the Kerala High Court judgement and that
judgment was also delivered by Subramonian Poti, C.J.
Aggrieved by that judgment State of Gujarat also came to this
COurt. Judgement of Gujarat High Court quotes various
passages from the Judgment of Kerala High COurt. Similar
question was posed in Gujarat High COurt and it was:-
"What should be the quantum of wages that has to be
paid to prisoners who are asked to do labour in
jails and what should be the approach to payment of
wages to such prisoners?"
Full Bench of Gujarat High Court noted that a
Division Bench of that High COurt by an earlier judgment
dated September 19, 1983 had determined that the prisoners
are to be paid wages at the minimum wage rates fixed for
workers in similar industrial organizations, but with
certain deductions to be made therefrom. Full Bench said
that there was only one item of deduction which was relevant
and that was the monetary equivalent of the food, clothing
and other facilities provided to prisoners at State expense.
In fact, this was the controversy which caused reference to
the Full Bench. After discussing various aspects on the
matter Full Bench of Gujarat High Court gave the following
direction:-
"Hence we hold on the question referred to
us that the prisoner is entitled to reasonable wages
for the work done. Such reasonable wages is
determined wwith reference to wages paid in similar
industry elsewhere. Such payment must be made
without any deduction for the food and clothing
supplied to such prisoner. The question referred is
answered accordingly. This will not go back to the
Division Bench."
The appeal filed by the State of Gujarat was directed to be
heard along with the earlier appeal filed by the State of
Kerala.
State of Rajasthan similarly felt aggrieved from the
judgment of the Division Bench of Rajasthan High COurt dated
April 27, 1994 and has come uop to this Court in appeal. By
the impugned judgement High Court upheld the decision of the
learned single judge directing the State Government to pay
wages to the prisoners as under:-
"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 from the date
of this order. This amount will be subject to
modification of course on higher side, after the
aforesaid exercise is done by the State Government
and Rules are suitably amended."
In the meantime various writ petitions came to be
filed in this Court on the issues involved in the appeals
filed by the States of Kerala, Gujarat and Rajasthan. All
these were directed to be heard together. By order dated
November 14, 1991 this Court noticed that the question
involved in these matters was very imported and substantial
question of law arose. It, therefore, directed notices to be
issued to Union Territories. Notice was also directed to be
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served on the Attorney General for India. By order dated
April 8, 1997 notice was also directed to be issued to
National Human Rights Commission. On our request Mr. Kapil
Sibal, Senior Advocate, appeared as amicus curies.
We may also note two decisions one of Himachal
Pradesh High Court and the other of the Andhra Pradesh High
Court. In Gurdev Singh and other Vs. State of Himachal
Pradesh and others (1992 Crl. L.J. 2542) the Division Bench
of the Himachal Pradesh High Court held that prisoners were
entitled to minimum wages as prescribed under the Minimum
Wages Act, 1948 and no deduction is permissible from the
wages on account of maintenance of the prisoners in jails.
It is not clear if State of Himachal Pradesh filed any
appeal against the judgment but the State has certainly
opposed grant of minimum wages to prisoners in the affidavit
filed in pursuance to notices issued by this Court in the
present case.
Andhra Pradesh High Court, however, took a different
view. In Poola Bhaskara Vijayakumar Vs. State of Andhra
Pradesh & Anr. (AIR 1988 AP 295) a direction was sought to
the authorities to pay prisoners wages for their work. It
was submitted that extraction of work by the State from the
prisoners convicted of rigorous imprisonment without paying
for such work was contrary to the mandate of Article 23 of
the Constitution. It was, thus, submitted that there was
violation of Article 23 of the Constitution. High COurt
disagreed with the Kerala High Court but then said that
wages could be justified under Article 21 of the
Constitution. The Court said that Article 23 should be held
to be more a prohibition directed against the social
practices of one member of society against another rather
than a prohibition against the State. A prisoner in serving
out his sentence and performing hard labour attached to his
sentence of rigorous imprisonment cannot be said to be doing
any service for any public purpose. The Court considered in
detail the scope of Article 23 of the Constitution Court
gave the answer in negative and said that in the case of
rigorous imprisonment with hard labour attached to it did
not amount to extracting forced labour from the prisoners
and was not contrary to Article 23.
Three cases of this Court have been relied on by the
High COurts of Kerala, Gujarat, Rajasthan and Himachal
Pradesh giving interpretation to Article 23 of the
Constitution. These are People’s Union for Democratic
Rights and others (PUDR) vs. Union of India and others
(1982 (3) SCC 235), Sanjit Roy Vs. State of Rajasthan (1983
(1) SCC 525) and Olga Tellis and others vs. Bombay
Municipal COrporation and others (1985 (3) scc 545). None
of these cases, however, dealt with the right of the
prisoners undergoing imprisonment with hard labour. The
first two cases considered the question of payment of wages
at a rate lower than minimum wages fixed under the Minimum
Wages Act, 1948 to workers employed in various projects and
said that was violative of Article 23 of the Constitution.
The third case considered the right of payement, basti and
slum dwellers of Bombay city on the touch one of Article 21
of the Constitution.
1.Pleas of the State Government
State have strongly opposed the right of the prisoners to
claim minimum wages under the Minimum Wages Act. They say
the prisoners have no right to claim wages at all except
those provided under the provisions of the prisons Act, 1894
and the rules made thereunder and non-payment of wages to
prosoners undergoing sentence of imprisonment with hard
labour could not be violative of Article 23 of the
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Constitution. In support of the submission States have
referred to the Constitutions of various countries and to
the Universal Declaration of Human Rights and Convenants on
Civil and political rights. States are, however, agreed
that the prisoners are entitled to certain wages as
prescribed but only by way of
incentive/bonus/honorarium/gratuity/reward/stipend or the
like. The amount so paid and by whatever name called has to
bear some reasonable nexus to the work performed by the
prisoners and wages cannot be arbitrary to be paid as a dole
or as a pittance. But then the States also say that they
are considering upward revision of wages to the prisoners to
bring then to a reasonable level for the work done by them
subject to deductions for food, clothing and other
facilities provided to the prosoners. Central Government in
itts affidavit submitted that the All india Committee on
Jail reforms under the Chairmanship of Justice A.N. Mulla
(which functioned during 1980-83) had expressed its view
that linking the rates of wages payable to the prisoners
with the prevailing commercial wage rattes impractical and
had further recommended that the prisoners should be paid
fair, adequate and equitable wages in proportion to the
skill required for the product/job/service and the
satisfactory per-ormance of the prescribed tasks.
In the appeal filed by the State of kerala it
questioned the very order of the High Court in fixing flat
rate for a prisoner doing hard labour. It said that High
Court was not correct in assuming that wages of prisoners
should be fixed on the basis of employer employee
relationship. State is providing work to the prisoners only
under statutory liability. The amount of Rs. 8/- per day
fixed by the High Court is an enhancement of 500% over the
prevailing rates involving record expenditure of Rs.20 to 25
lakhs affecting the development programme in the State. It
was submitted that prevailing rates should be allowed to be
continued and opportunity be given to the State to fix
appropriate rates as early as possible. In the additional
affidavit filed by the Director General of Polic
(Intelligence), Kerala it was stated that the State
Government had constituted the Jail Reforms Committee which
had recommended that local minimum wages available for
similar outside labour may be paid to the prisoners after
deducting the average per capita maintenance cost of the
inmates and that the State was considering the
recommendations so made. It was submitted that the State
Government was not against enhanging the wages given to the
prisoners but there were financial constraints and that any
decision to enhance the wages paid to the prisoners of a
scale analogous to the minimum wages payable outside would
result in serious financial commitment to the Government
which are already spending substantial funds for the
maintenance of the prisoners. It was submitted that the
Government had no hesitation to sanction a reasonable
increase in the wages paid to the prisoners.
It is not necessary to detail various contentions
raised by the State Governments to justify their stand.
Broadly, they say wages are given to the prisoner for the
purpose of :
1.(a) Offering incentive and stimulus for effect, work
and industry;
(b) making prison work purposive and meaningful;
(c) developing a sense of self-responsibility and
self respect amongst the inmates;
(d) enabling prisoners to purchase their sundry
daily extra requirements from the prison canteen;
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and
(e) helping inmates to effect saving for their post
release rehabilitation and also for extending
economic help to their families.
(f) payment effected should not be compared to the
kind of wages paid outside but it should be seen as
payment for learning skills and therefore only as
stipend.
We are not holding that prisoners doing hard labour are
entitled to minimum wages under the Minimum Wages Act and in
view of our directions to the States to fix equitable wages
for the prisoners, the States would certainly be considering
all the relevant circumstances while fixing equitable wages.
II. STAND OF NATIONAL HUMAN RIGHTS COMMISSION
EUROPEAN CONVENTIOIN ON HUMAN RIGHTS
UNITED NATIONS ON PRISON LABOUR
-------------------------------
While States are concerned with the revenue and
payment of wages to the prisoners is rather a secondary
consideration for them, we have to look to the National
Human Rights Commission (NHRC) for its views as the
Commission has studied the problem of prisons in the country
in depth.
Basing its study on the recommendations of Mulla
Committee aforesaid National Human Rights Commission (NHRC)
circulated Indian Prisons Bill 1996. Clause 11.21 of the
Bill is relevant for our purpose and it is as follows:-
"11.21 The question of fixing rates wages in
prisons is no doubt, a complex job. For obvious
reasons, prisoners cannot be given the same rates of
wages as are given in the private sector or in a
public undertaking. Linking rates of wages of
prisoners with commercial wage rates presents many
practical difficulties. We are of the view that
prisoners should be paid fair, adequate and
equitable wages in proportion to the skills required
for the product or job or service and the
satisfactory performance of the prescribed tasks.
While fixing such fair, adequate and equitable wage
rate, the minimum wage rate for agriculture,
industry, etc., as may be prevalent in each State
and Union Territory should be taken into account.
Units of work prescrib ed for such minimum wages
should also be taken into consideration. The average
per capita cost of food and clothing on an inmate
should be deducted from the minimum wage and
remainder should be paid to the prisoner. We
consider that this would be a fair and equitable
basis for fixing wage rates in prisons."
NHRC is of the view that while fixing fair, adequate
and equitable wage rate for the prisoner the minimum wage
rate for agriculture, industry, etc. as may be applicable in
the State and the Union Territory be taken into account
and from this average per capita cost of food and clothing
on an inmate should be deducted from the minimum wage and
remainder should be paid to him. According to NHRC this
would be a fair and equitable basis for fixing wage rates
for prisoners. Mr. Rajiv Dhawan, Senior Advocate, who
appeared for NHRC proposed that
(a) a wage fixation body be created to fix the
equitable recompense of prisoners.
(b) a body may be created to determine the
districution of equitable recompense between sums for
dependents and sums for future use, and invested
accordingly.
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(c) a grievance committee be established which will
examine complaints in respect of prisoners in respect
of wages, wage determination, deductions and working
conditions.
This is consistent with the jurisprudence enunciated earlier
that procedurl provisions should strengthen substantive
entitlements.
I may, however, notice that lower wage for inmates of
prisons is admissible under the European Convention on Human
Rights. Article 4 of this Convention provides as under:-
1.No one shall be held in slavery or servitude
2.No one shall be required to perform forced or
compulsory labour.
3.For the purposes of this Article the term forced or
compulsory labour’ shall not include :
(a) any work required to be done in the ordinary
course of detention imposed according to the
provisions of Acticle 5 of this Convention or during
conditional release from such detention.
(b) any service of a military character or, in the
case of conscientious objectors in countries where
they are recognised, service exacted instead of
compulsory militar service;
(c) any service exacted in case an emergency or
calamity thre ning the life or well-being of the
community;
(d) any work or service which forms part of normal
civic obligations."
Article 5 guaranteed liberty of the person, and in
particular provided guarantees against arbitrary arrest or
detention. It seeks to achieve this object by excluding any
form of arrest or detention without lawful authority and
proper judicial control. Article 4(2) provides that no one
shall be required to perform forced or compulsory labour but
Article 4(3) excludes from the term "forced or compulsory
labour" any work required to be done in the ordinary course
of detention imposed according to the provisions of Article
5 of the Convention or during conditional release from such
detention.
In the case of Twenty-one Detained Persons against
The Federal Republic of Germany decided on April 6, 1968 by
the European Convention on Human Rights the main grievance
of the applicants was that they were refused adequate
remuneration for the work which they had to perform during
the detention and that no contributins under the social
security system were made for them in this respect by the
prison authorities. The Commission noted a particular
complaint which said that "the prisoners where compelled to
work at ridiculous salaries which enabled the public
Treasury to extract fortunes from the detainees, namely,
profiting from the difference between the salaries and the
market value of their work". The Commission examined the
provisions of Article 4 and held that in the present
applications detention concerned was imposed by the
competent courts in a lawful manner and work performed
during this detention was therefore covered by Article
4(3)(a), taken in conjunction with Article 5. The Commission
further observed that Article 4 did not contain any
provision concerning the remuneration of prisoners for their
work and, consequently, it said that it had in its constant
jurisprudence rejected as being admissible any applications
of prisoners claiming higher payment for their work. The
Commission also observed that there was a study made by the
United Nations which was published in the basic documents of
1955 on Prison Labour. The study revealed that the amounts
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paid to the working persons were, with very few exeptions,
extremely small, and that normally prisoners had no legal
right to remuneration which is only paid as a "reward" or
"gratuity" subject to regulations governing the disposition
of the money and which may, in certain circumstances, be
withdrawn as a disciplinary measure. Commenting on this
study the Commission found that "the form of prison labour
of which the applicants complain, whatever its merits or
demerits from a penological point of view, clearly appears
to fall within the framework of work "normally" required
from prisoners within the meaning of Article 4, paragraph
(3)(a), of the European Convention".
In the study conducted by the United National on
Prison Labour, published in 1955, there is a chapter on
"Remuneration of Prisoners, Rugulations governing the
Expenditure of Income and Aid to Dependants". The study
referred to various practices prevailing in 22 countries
which had submitted information on the amounts of
remuneration paid to prisoners including that by India. Para
240 refers to the system prevailing in India, which is as
under:-
"240.No. uniform system or regulations for
remuneration have yet been instituted in India. In
some States payments are made at a fixed percentage
of wages earned for comparable work by free
employees, in others only gratuities are paid. At an
experimental extra-mural rehabilitation project in
the State of Uttar Pradesh, prisoners from serveral
jails are employed for periods up to eight months in
constructing an irrigation dm on the Chandraprabha
River. Living under conditions closely approximating
those of free workers, the prisoners earn an average
of Rs. 1/8/- per day, part of which may be spent on
minor purchases and part of which may be sent to
dependents. Only the costs of may be sent to
dependents. Only the costs of three meals daily are
deducted by the State."
The study noticed that virtually all countries with systems
of remuneration made regulations governing the disposition
of payments to prisoners. Aside from the special rules for
those earning the equivalent of free wages, prisons in
majority of non-English speaking States required the
division of remuneration in specified proportions of at
least two, three or four shares. It said that five main
purposes were served by such policies of allocation of
remuneration and these were -
(a) Provision for spending money.
(b) Saving for release;
(c) Aid to dependents;
(d) Board and room or other institutional expenses; and
(e) Indemnities and/or court fees.
Para 181 of the study on Prison Labour is a under:-
"181. That prisoners should be remunerated for
their work is a principle accepted by most
contemporary penologists. Differences of opinion on
legal and ethical considerations and on procedural
problems do not obscure the fact that definite
benefits are felt to accure from carefully planned
prisoner remuneration schemes. In addition to
stimulating the offender’s industry and interest,
money can be earned, at the very least for the
purchase of approved articles and for the
accumulation of a savings fund aginst the day of
release. If payments are more than minimal, some
possibility exists for making at least token
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contributions to the needs of dependents, for paying
indemnities and other legal obligations, an for
reimbursing the State for the expense of
incarceration. If inmates can earn wages
approximating those of free workers, not only can
they make adequate payments for their moral and
legal obligations, but they will be more nearly
sharing in the normal economic functions of the
society to which the majority will eventually
return.
After the study was made by the United Nations on
prison Labour Standard Minimal rules for the treatment of
the prisoners were adopted. These Rules provide for the
prisoners (1) proper accommodation, (2) medical facilities,
(3) clothing and bedding, (4) books etc. These rules also
stated that:
"58. The purpose and justification of a sentence of
imprisonment or a similar measure deprivative of
liberty is ultimately to protect society against
crime. This end can only be achieved if the period
of imprisonment is used to ensure, so far as
possible, that upon his return to society the
offender is not only willing but able to lead a
law-abiding and self-supporting life.
59. To this end, the institution should utilize
all the emedial, educational, moral, spiritual and
other forces and forms of assistance which are
appropriate and available and should seek to apply
them according to the individual treatment needs of
the prisoners.
65. The treatment of persons sentenced to
imprisonment or a similar measure shall have as its
purpose, so far as the length of the sentence
permits, to establish in them the will to lead
law-abiding and self supporting lives after their
release and to fid them to do sq. The treatment
shall be such as will encourage their self-respect
and develop their sense of responsibility."
For the work to be taken from the prisoners and
remuneration to be paid, paras 71, 72, 73 and 76 may be
referred to, which are as under:-
"71. (1) Prison labour must not be of an
afflictive nature.
(2) All prisoners under sentence shall be required
to work, subject to their physical and mental fitness
as determined by the medical officer.
(3) Sufficient work of a useful nature shall be
provided to keep prisoners actively employed for a
normal working day.
(4) So far as possible the work provided shall be
such as will maintain or increase the prisoners,
ability to earn an honest living after release.
(5)Vocational training in useful trades shall be
provided for prisoners able to profit thereby and
especially for young prisoners.
(6) Within the limits compatible with proper
vocational selection and with the requirements of
institutional administration and discipline, the
prisoners shall be able to choose the type of work
they wish to perform.
72. (1) The organization and methods of work in
the institutions shall resemble as closely as
possible those of similar work outside institutions,
so as to prepare prisoners for the conditions of
normal occupational life.
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(2) The interests of the prisoners and of their
vocational training, however, must not be
subordinated to the purpose of making a financial
profit from an industry in the institution.
73. (1) Preferably institutional industries and
farms should be operated directly by the
administration and not by private contractors.
(2) Where prisoners are employed in work not
controlled by the administration, they shall always
be under the supervision of the institution’s
personnel. Unles the work is for other departments of
the government the full normal wages for such work
shall be paid to the administration by the persons to
whom the labour is supplied, account being taken of
the output of the prisoners.
76. (1) There shall be a system of equitable
remuneration of the work of prisoners.
(2) Under the system prisoners shall be allowed to
spend at least a part of their earnings on approved
articdles for their own use and to send a part of
their earnings to their family.
(3) The system should also provide that a part of
the earnings should be set aside by the
administration so as to constitute a savings fund to
be handed over to the prisoner on his release,
Education and recreation."
It is not disputed that wages are being provided to
the prisoners in all the States in the country except the
State of Bihar. There is, however, no opposition from any
quarter that certain amount of wages are to be given to the
prisoners doing work in the prison. If we examine the rates
of wages presently fixed in various States these vary from
Rs. 1.50 to Rs. 6.00 per day for an unskilled worker and Rs.
2.50 to Rs. 8.00 per day for skilled worker. The amount of
wages so paid shocks the conscience. In Pondicherry is in
terms of few paise a day and it could be said that in fact no
payment is being made. The amounts so paid these days would
appear to be rather a pittance and certainly need upward
revision.
It is not, therefore, that prisoner is entitled to
minimum wage fixed under the Minimum Wages Act. But then
there has to be some rational basis on which wages are to be
paid to the prisoners.
Since the claim of the prisoners for payment of wages
and also at the rates fixed under the Minimum Wages Act is
based on Article 23 of the Constitution and that of the
States on the Prisons Act we may as well consider these
provisions.
III The Prisons Act, 1894
Under Seventh Schedule list II (State List) of the
Constitution ’prisons’ is a State subject. Entry 4 deals with
’prisons’ and it reads as under:-
"4. Prisons, reformatories, Borstal institutions and
other institutions of a like nature, and persons
detained therein; arrangements with other States for
the use of prisons and other institutions."
Prisons Act, 1894 regulates ’jail’. There are various
State amendments to this Act though those amendments are not
of any significance for our purpose. The Act defines a
cirminal prisoner, a convicted criminal prisoner and a civil
prisoner. The Act provides as to how the prisons are to be
maintained; the duties of the officers manning the prisons;
discipline of prisoners; food, clothing and bedding of civil
and unconvicted criminal prisoners; health of prisoners;
prisoners - offences and punishment of such offences; etc.
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Chapter VII of the Act deals with employment of the
prisoners. There is no provisin in the Act for payment of
wages to criminal prisoners sentenced to hard labour. Only
the civil prisoners are entitled to receive whole of the
earnings except where the implements used by them are
supplied by the prison authorities a certain amount is
deducted from their earnings. Section 59 gives power to the
State Government to make rules. Clauses (11) and (12) of
Section 59 empower the State Government to make rules for the
provisions of food and employment etc. of the prisoners. It
would, therefore, appear that when wages are paid to the
prisoners doing hard labour it is because of rules or other
Government orders.
IV. Constitution (Article 23)
How Articles 23 and 24 took the present shape we may
refer to the Study by B. Shiva Rao is his book "The Framing
of India’s Constitution". The subject was first considered in
the Sub-Committee on Fundamental Rights and the provisions
against exploitation as finally approved by the sub-committee
were reproduced as clause 15 in the draft report as follows:-
"15. (1) (a) Slavery.
(b) traffic in human beings.
(c) the form of forced labour knows as begar.
(d) any form of 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: Compulsory service under any general
scheme of education does not fall within the
mischief of this clause.
(2) Conscription for military service or training,
or for any work in aid of military operation, is
hereby prohibited.
(3) No person shall engage any child below the age
of 14 years to work in any mine or factory or any
hazardous employment."
This Clause 15 was then considered by the Advisory
Committee and the drafted provisions as adopted by the
Advisory Committee were reproduced as Clauses 11 and 12 in
its interim report which were as follows:-
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
prevant the State from imposing compulsory service
for public purposes without any discrimination on
the ground of race, religion, caste or class.
12. No child below the age of 14 years shall be
engaged to work in any factory, mine or any other
hazardous employment.
Explanation : Nothing in this clause shall
prejudice any educational programme or activity
involving compulsory labour."
These clauses were then discussed in the Constituent
Assembly and finally came up for discussion as Articles 17
and 18 as prepared by the Drafting Committee in the Draft
Constitution and as follows :-
"17. (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
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offence punishable in accordance with law
(2) Nothing in this article shall prevent the
State from imposing compulsory service for public
purposes. In imposing such service the State shall
not make any discrimination on the ground of race,
religion, caste or class.
18. No child below the age of fourteen years shall
be employed to work in any factory or mine or
engaged in any other hazardous employment.
Now, when Article 17 was taken up for discussion
certain amendments were moved by the Members. Relevant for
our purposes are - (1) "That in clause (2) of article 17,
after the works "caste or class" the works "and shall pay
adequate compensation for it" be inserted." (2) "That in
clause (2) of article 17, for the word ’public" the words
"social or national" be substituted." (3) "That in clause
(2) of article 17, after the words "discrimination on the
ground" the word "only" be added." In reply Dr. B R
Ambedkar said:-
"Mr. Vice-President, I should like to state at the
outset what amendments I am prepared to accept and what,
I am afriad, I cannot accept. Of the amendment which I
am prepared to accept is the amendment by Prof. K.T.
Shah, No. 559, which introduces the word "only" in
clause (2) of article 17 after the words "discrimination
on the ground". The rest of the amendments, I am afraid,
I cannot accept. With regard to the amendments which, as
I said, I cannot accept one is by Prof. K.T. Shah
introducing the word "devadasis". Now I understand that
his arguments for including ’devadasis’ have been
replied to by other members of the House who have taken
part in this debate, and I do not think that any useful
propose will be served by my adding anything to the
arguments that have already been urged.
With regard to the amendment of my honourable
Friend, Mr. H.V. Kamath, he wants the words ’social and
national’ in place of the word ’public’. I should have
thought that the word ’public’ was wide enough to cover
both ’national’ as well as ’social’ and it is,
therefore, unnecessary to use two words when the purpose
can be served by one, and I think, he will agree that
that is the correct attitude to take.
With regard to the amendment of my honourable
Friend Shri Damodar Swarup Seth, it seems to be
unnecessary and I, therefore, do not accept it. With
regard to the amendment of Sardar Bhopinder Singh Man,
he wants that wherever compulsory labour is imposed by
the State under the provisions of clause (2) of article
17 a proviso should be put in that such compulsory
service shall always be paid for by the State. Now, I do
not think that it is desirable to put any such
limitation upon the authority of the State requiring
compulsory service. It may be perfectly possible that
the compulsory serrvice demanded by the State may be
restricted to such hours that it may not debar thee
citizen who is subjected to the operation of this clause
to find sufficient time to earn his livelihood, and if,
for instance, such compulsory labour is restricted to
what might be called ’hours of leisure’ or the hours,
when, for instance, he is not otherwise occupied in
earning his living, it would be perfectly justifiable
for the State to say that it shall not pay any
compensation.
In this clause, it may be seen that non-payment
of compensation could not be a ground of attack; because
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the fundameental proposition enunciated in sub-clause
(2) is this : that whenever compulsorry labour or
compulsory service is demanded, it shall be demanded
from all and if the State demands service from all and
does not pay any, I do not think the State is committing
any very great inequity. I feel, Sir, it is very
desirable to leave the situation as fluid as it has been
left in the article as it stands."
Articles 23 and 24 in the Constitution are now as
under:-
"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.
24. prohibition of employment of children in
factories, etc. -- No child below the age of fourteen
years shall be employed to work in any factory or mine
or engaged in any other hazardous employment."
The word ’begar’ is of Indian origin and is well understood
in ordinary parlance. it is compulsory or involuntary
labour with or without payment. This Court has approved the
meaning of begar as accepted by the Bombay high Court in S
Vasudevan & Ors. Vs. S.D. Mital & Ors. [AIR 1962 Bom.
53]. In S. Vasudevan’s case there was challenge to the
constitutional validity of the essential Services
Maintenance Ordinance, 1960 prohibiting bank strikes, and
one of the contentions raised was that the Ordinance made
the petitioners work against their will at the threat of
penal consequences and that amounted to a form of forced
labour which clause (1) or Article 23 of the Constitution
prohibited and that thus the Ordinance was bad in law as it
contravened the provisions of Article 23(1). High Court did
not agree and said: "This contention is also without any
force. It omits to notice the force of the word ’similar’
occurring in the clause. That clause prohibits (i) traffic
in human beings (ii) begar and (iii) other similar forms of
forced labour. It would be seen that every form of forced
labour is not prohibited by the clause. In fact, clause (2)
of Article 23 permits the State to impose on the citizens
compulsory service for public purposes. What is prohibited
by the first clause is imposing on the citizens forced
labour which is similar in form to begar. It is true that is
not defined but it is a well understood term which means
making a person work against his will and without paying any
remuneration therefor. Molesworth at page 580 gives the
meaning of begar as ’Labour or service exacted by a
Government or a person in power without giving remuneration
for it’. In wilsons Glossary the meaning of the word is
given as "Forced labour, one pressed to carry burden for
individuals or to public, under old system when passed for
public service, no pay was given." In our opinion,
therefore,to bring the case within the mischief which clause
(1) of Article 23 provides against, it must be established
that a person is forced to work against his will and without
payment. Such is not the case here. Even assuming tthat the
threat of penal consequences provided in the Ordinance would
have the effect of making the petitioners work against their
will, it is beyond doubt that it was not intendedto make
them work without any payment; on the other hand, they would
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be getting their full remuneration for the work they would
be doing." This dictum was approved by this Court in
the case of People’s Union for Democratic Rights & Ors. Vs.
Union of India & Ors. [(1982) 3 SCC 235].
Since a great deal of reliance has been placed on the
decision of this Court in People’s Union for Democratic
Rights & Ors. Vs. Union of India & Ors. [(1982) 3 SCC
235], I may refer to it in somewhat greater detail. In this
case the Court said that many of the fundamental rights
enacted in Part III of the Constitution operate as
limitations on thee power of the State and impose negative
obligations on the State not to encroach on individual
liberty and they are enforceable only against the State.
But there are certain fundamental rights conferred by the
COnstitution which are enforceable against the whole world
and they are to be found inter alia in Articles 17, 23 and
24. Article 23 with which we are concerned is clearly
designed to protect the individual not only against the
State but also against other private citizens. Article 23
is not limited in its application against the State but it
prohibits "traffic in human being and begar and other
similar forms of forced labour" practised by anyone else and
the Article strikes at such practices where they are found
as its sweep is wide and unlimited. The Court said that the
reason for enactment of this provision in the Chapter on
fundamental rights is to be found in the socioeconomic
conditions of the people at the time when the Constitution
came to be enacted. The Court went into the question as to
why the COnstitution makers thought it prudent to include a
provision like Article 23 in the Chapter of Fundamental
rights. There is good deal of discussion in paras 12, 13
and 14 of the judgment as to the true scope and meaning of
the expression "traffic in human being and begar and other
similar forms of forced labour". It is, thus, clear that
this Court in unmistakable terms has said that every form of
forced labour, begar or otherwise is within the inhibition
of Article 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, i.e., labour supplied not willingly but as a
result of force or compulsion. This Court was considering
the argument on behalf of the Union of India which laid some
emphasis on the word "similar" and contended that it was not
every form of forced labour which was prohibited by Article
23 butr only such form of forced labour as was 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 Article 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 works ’other similar forms of forced
labour’. The Court said that this contention sought to
unduly restrict the amplitude of the prohibition against
forced labour enacted in Article 23 and was, in its opinion,
not well founded. Thus, this court has held that under
Article 23 no one shall be forced to provide labour or
service against his will even though it be under a contract
or service. Payment of full wages when labour exacted is
forced will attract the prohibition contained in Article 23.
It will not, therefore, be correct to say that this judgment
merely holds that where a person provides labour or service
to another on remuneration which is less than the minimum
wages, the labour or service provided by him falls within
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the scope and ambit of the words "forced labour" under
Article 23. As a matter of fact, what the judgements holds
is where labour is forced on a person then irrespective of
the fact that he is paid minimum remuneration as may be
fixed or even higher than that, Article 23 will nevertheless
be violated. Any amount of remuneration paid to a person
will be immaterial if labour is forced upon him. Can it,
therefore, be said that sentence of rigorous imprisonment is
unconstitutional being violative of clause (1) of Article 23
because prisoner is forced to do hard labour and is saved
only because of clause (2) of this Article? Can it be said
that when a prisoner is made to do hard labour being part of
his sentence, it is in the nature of compulsory service
imposed by the State for public purpose? My answer to both
these questions is in negative. Article 23 has no role to
play. Here, 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 competent
jurisdiction in accordance with law.
If we further analyse the discussions of constituent
Assembly on Article 23, it is significant that it was aimed
at prohibiting abuses from forced labour which ryots were
compelled to render to big zamindars or to royalty of the
erstwhile Indian States. In this connection, a part of
speech of Shri Raj Bahadur in the Constituent Assembly may
be of some relevance:
"Mr. Vice-President, Sir, begar like slavery has dark
and dismal history behind it. As a man coming from an
Indian State, I know what this begar, this extortion of
forced labour, has meant to the down-trodden and dumb
people of the Indian States. If the whole story of this
begar is written, it will be replete, with human
misery, human suffering, blood and tears. I know how
some of the Princes have indulged in their pomp and
luxury, in their reckless life, at the expense of the
ordinary man, how they have used the downtrodden
labourrers and dumb ignorant people for the sake of
their pleasure."
At this stage we may also note relevant provisions in thee
constitutions of U.S.A., Japan and West Germany and also the
universal Declaration of Human rights and Covenants on Civil
and Political Rights.
U.S.A.
"(1) Neither slavery nor involuntary servitude, except as
a punishment for crime whereof the party shall have been duly
convicted, shall exist within the United States, or any place
subject to their jurisdiction."
JAPAN
Art. 18 of the Japanese Constitution, 1946, provides
-- "No person shall be held in bondage of any kind.
Involuntary servitude, except as punishment for crime, is
prohibited.
WEST GERMANY
2. No one may be compelled to perform a particular
kind of work except within the frame work of an established
general compulsory public service equally applicable to
everybody.
3. Forced labour shall be admissible only in the event of
imprisonment ordered by court."
UNIVERSAL DECLARATION
(A) Art. 4 of the Universal Declaration of Human Rights says
-- "No one shall be held in slavery or servitude; slavery
and the slave trade shall be prohibited in all their forms."
COVENANT ON CIVIL & POLITICAL RIGHTS.
(B) Art. 8 of the Covenant on civil and political rights,
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1966 says -- "1. No one shall be held in slavery; slavery
and the slave trade in all their forms shall be prohibited.
"2. No one shall be held in servitude."
"3. (a) No one shall be required to perfor forced
or compulsory labour.
(b) Paragraph 3(a) shall not be held to preclude,
in countries where imprisonment with hard labour may
be imposed as a punishment for a crime, the
performance of hard labour in pursuance of a
sentence to such punishment by a competent court;
(c) For the purpose of this parapraph the term
’forced or compulsory labour’ shall not include :
(i) Any work or service, not referred to in
sub-paragraph (b), normally required of a person who
is under detention in consequence of a lawful order
of a court, or of a person during conditional relese
from such detention;
(ii) Any service of a military character and in
countries where conscientious objection is
recognized, any national service required by law of
conscientious objections;
(iii) Any service exacted in cases of emergency or
calamity threatening the life or well being of the
community;
(iv) Any work or service which forms part of normal
civil obligations.
We have also noticed somewhat similar provisions in the
constitutions of Burma, Cyprus, Jordan, Kenya, Korea,
Malaysia, Mauritius, Nepal, Pakistan and Philippines where
forced or compulsory labour is valid while undergoing
imprisonment as a punishment for offences committed by the
prisoners.
It was stressed that Article 23, when it originally
stood, contained the works ’except as a punishment for crime
whereof the party shall have been duly convicted" but these
words have since been omitted. On this arguments were based
that a prisoner is entitled to wages for work done by him
otherwise it will be violative of the Article. I do not
think the matter is as simple as that. This is no way to
interpret a provision when there is no ambiguity.
Superfluous and unnecessary words are avoided in drafting a
statute when otherwise language used gives full meaning to
the provision. Article 23 contains prohibition. What it
prohibits is, as is relevant for our purpose ’begar’ and
other similar forms of forced labour. Now it cannot be said
that a prisoner sentenced to undergo imprisonment with hard
labour would be doing ’begar’ if prison authorities put him
to hard labour. It cannot also be "other similar forms of
forced labour". During the debates of the Constituent
Assembly or of any of its Committees it was never suggested,
even remotely, that sentence of rigorous imprisonment is
akin to ’begar’ or other similar kind of forced labour.
This Court has rightly applied the meanings of all these
words to cases where labourers are paid at a rate lower than
that fixed under the Minimum Wages Act. In those cases
labourers though entitled to minimum wages were forced to
accept remuneration at a lower rate because of poverty,
unemployment or other similar circumstances. Here 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 courts’ wrath. Now if the prisoners are
not paid, can the authorities be accused of violating
Article 23 of the Constitution? Would they be committing
any offence punishable in accordance with law? In this
connection we may refer to section 374 IPC which prescribes
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that whoever unlawfully compels any person to labour against
the will of that person, shall be punished with imprisonment
of either description for a term which may extend to one
year, or with fine or with both. It ccannot be said that
prrison authorities are unlawfully "compelling the prisoners
to do the work" . the issue may be approached from different
angle as well. Prison authorities are obliged to put the
prrisoners to work under the orders of the court and at the
same time bound to pay wages to the prisoner because of the
prohibition of Article 23. It is really a paradoxical
situation. Both work and payment must go together whether
the authorities have funds to pay or not. If they have no
funds and they are not putting the prisoner to work they
would be violating the court’s order. If, on the other hand,
they put the prisoner to work and have no funds to make
payment they are violating Article 23. Article 23 is to be
given purposive interpretation. No one has questioned the
constitutional validity of the Prisons Act or the rules
framed thereunder or punishment of rigorous imprisonment
which means hard labour. Here, hard labour is a part of
sentence and not of any contract. Nobody ever said that
during pre-constitutional period, sentence of imprisonment
with hard labour was ’begar’ or other forms of forced
labour’.
To me it appears, there will be no violation of Article
23 if prisoners doing hare 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 and clear and in unmistakable terms that crime
does not pay. This the prisoners and the potential offenders
must realise. We cannot make prison a place where object of
punishment is wholly lost.
Next question is as to how wages payable to the
prisoners are to be used by him and how these are to be
fixed. Rules of certain States provide and this was also
commended by Mr. Rajiv Dhawan that one-third of the wages
should be paid to the prisoner for his personal needs while
undergoing sentence, one-third to his family and one-third
be credited to his account to be paid at the time of his
release. That sounds quite good. But then fixing wages for
the prisoners State has to show equal concern for the
victim and victim’s family. To this end subject of
Victimology has gained ground these days.
V. Victimology
I do not think it is necessary for us to comment on
various theories of sentence like deterrent, retributive and
reformation or rehabilitative. reforrmative theory is
certainly important but too much stress to my mind cannot be
laid on it that basic tenets of punishments altogether
vanish. In this connection a constitution Bench decision of
this court in the case of Jagmohan Singh Vs. The State of
U.P. (1973 (1) SCC 20) which considered the validity of
death sentence may be of some relevance. The relevant part
of the judgment is as under :-
"Reference was made by Mr. Garg to several studies
made by Western scholars to show the ineffectiveness
of capital punishment either as a deterrent or as
appropriate retribution. There is large volume of
evidence compiled in the West by kindly social
reformers and research workers to confound those who
want to retain the capital punishment. the
controversy is not yet ended and experiments are
made by suspending the death sentence where possible
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in order to see its effect. On the other hand most
of these studies suffer from one grave defect namely
that they consider all murders as stereotypes, the
result of sudden passion or the like, disregarding
motivation in each individual case. A large number
of murders in undoubtedly of the common type. But
some at least are diabolical in conception and cruel
in execution. In some others where the victim is a
person of high standing in the country society is
liable to be rocked to its very foundation. Such
murders cannot be simply wished away be finding
alibis in the social maladjustment of the murderer.
Prevalence of such crime speaks, in the opinion of
many, for the inevitability of death penalty not
only by way of deterrence but as a token of emphatic
disapproval by the society.
14. We have grave doubts about the expendiency of
transplanting Western experience in our country.
Social conditions are different and so also the
general intellectual level. In the context of our
Criminal Law which punishes murder, one cannot
ignore the fact that life imprisonment works out in
most cases to a dozen years of imprisonment and it
may be seriously questioned whether that sole
alternative will be an adequate substitute for the
deatth penalty. We have not been referred to any
large-scale studies of crime statistics compiled in
this country with the object of estimating the need
of protection of the society against murders. The
only authoritative study is that of the Law
Commission of India published in 1967. It is its
Thirty-fifth Report. After collecting as much
available material as possible and assessing the
views expressed in the West both by abolitionists
and the retentionists the Law Commission has come to
its conclusion at paras 262 to 264. These parapraphs
are summarized by the Commission as follows at page
354 of the Report :
"The issue of abolition or retention has
to be decided on a balancing of the various
arguments for and against retention. No
single argument for abolition or retention
can decide the issue. In arriving at any
conclusion on the subject, the need for
protecting society in general and individual
human beings must be borne in mind.
It is difficult to rule out the vaildity of
or the strength behind, many of the
arguments for abolition. Nor does the
Commission treat lightly the argument based
on thee irrevocability of the sentence of
death, the need for a modern approach, the
severity of capital punishment, and the
strong feeling shown by certain sections of
public opinion in stressing deeper questions
of human values.
Having regard, however, to the
conditions in India, to the variety of the
social upbringing of its inhabitants, to the
disparity in the level of morality and
education in the country, to the vastness of
its area, to the diversity of its
poplulation and to the paramount need for
maintaining law and order in the country at
the present juncture, India cannot risk the
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experiment of abolition of capital
punishment.
Arguments which would be valid in
respect of one area of the world may not
hold good in respect of another area, in
this context. Similarly, even if abolition
in some parts of India may not make a
material difference, it may be fraught with
serious consequences in other parts.
On a consideration of all the issues
involved, the Commission is of the opinion,
that capital punishment should be retained
in the present state of the country".
Great stress in being laid these days on the rights
of the victims or his family in case of victim’s death.
According to Mr. Dhavan sums granted to prisoners are de
minimus and cannot support a rehabilitativee victimology.
Reference was made to section 357 of code of Criminal
Procedure which provides for payment of compenstion to victim
or on his death to his family. NHRC does not seem to have
collected any data as to how Section 357 of the code is being
put to use. Presently we find there is fitful practice of
making compensation orders under the Section.
In recent years the right to reparation for victims
of violation of human rights is gaining ground. United
Nations Commission of Human Rights has circulated draft Basic
Principles and Guidelines on the Right to Reparation for
Victims of Violation of Human Rights. (see Annexure)
In the United States of America stress has now been
laid on victim impact evidence. In Payne Vs Tennessee (III
S.ct. 2597) the Supreme COurt of United States by majority of
6:3 upheld the admission during capital sentencing of
evidence relating to the victim’s personal characteristics
and the emotional impact of crime of the victim or his family
or friends. Whether such an approach in correct or otherwise
is not the question we are considering here. It merely shows
that victim is an important factor in a criminal trial.
In Palaniappa Gounder Vs. State of Tamil Nadu and
others. (1977 (2) SCC 634) = (AIR 1977 SC 1323) this COurt
was considering the applicability of section 357 of the Code
of Criminal Procedure. In this case the accused were
sentenced to death. On appeal filed by the accused High
Court reduced the death sentence to that of imprisonment for
life. However, while reducing the sentence High Court
imposed a fine of Rs. 20,000/- on the accused and directed
that out of the fine, if realised, a sum of Rs. 15,000/-
should be paid to the son and daughters of the deceased under
Section 357(1) (C) of the code. This order came to be passed
on an application filed by the son and daughters of
thedeceased praying that the accused bo asked to pay them, as
heirs of the deceased, compensation of a sum of Rs. 40,000/-
for the death of their father. Though the application filed
was one under Section 482 of the Code this COurt said that it
could be treated that one under Section 357 of the Code which
provisions specifically dealt with such a case. Though
upholding the order of the High Court in imposing fine and
directing payment of compensation to heirs of the deceased
the Supreme Court reduced the sentence of fine to Rs.
15,000/- and directed that the fine so recovered shall be
paid to the heirs of the deceased. The Court said that
provisions of clauses (a), (b) and (d) of Section 357 were
inapplicable and clause (c) of Section 357(1) was relevant.
This COurt, however, said that though it was legitimacy is
not to be confused with propriety and the fact that the COurt
prosseses a certain power does not mean that it mustt always
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exercise it". It said that the power to combine sentence of
death with sentence of fine is sparingly exercised because
the sentence of death in an extreme penalty to impose and
adding to that grave penalty a sentence of fine is hardly
calculated to serve any social purpose. The approach of this
COurt in the present day context needs further thought.
However I feel that observations of this COurt are to be
confined to a case where accused has been sentenced to death.
In Sarwan Singh and others Vs. State of Punjab (1978
(4) SCC 111) = (AIR 1978 SC 1525) this court said that in
awarding compensation it was necessary for the court to
decide whether the case was a fit one in which compensation
has to be awarded. If it is found that compensattion should
be paid then the capacity of the accused to pay a
compensation has to bbe determined. The Court said that the
purpose would not be served if the accused was not able to
pay the fine orr compensation for imposing a default sentence
for non-payment of fine would not achieve the object. The
Court referred to its earlier decision in Palaniappa Gounder
Vs. State of Tamil Nadu and others (1977 (2) SCC 634) and
said that it was the duty of the court to take into account
the nature of crime, injury suffered, the justness of the
claim for compensation, the capacity of tthe accused to pay
and other relevant circumstances in fixing the amount of fine
or compensation.
In Hari Singh Vs. Sukhbir Singh and others (1988 (4)
SCC 551) = (AIR 1988 SC 2127) this court took a different
stance. It called upon all the courts to liberalise its
power under Section 357 of the code. It said that power of
the courts to award compensation to victims under Section
357, while passing judgment of conviction was not ancillary
to other sentences but in addition thereto and that this
power was intended to do something to reassure the victim
that he or she was not forgotten in the criminal justice
system. In this case accused was convicted under Sections
325, 148 and 149 IPC. Power of speech of the victim was
imparied permanenttly. High COurt granted compensation of Rs.
2500/- which this court said would be payable by each of the
accused having regard to the nature of injuries suffered by
the victim. The Court found that accused had means and
ability and were also unwilling to bear the additional
financial burden. The award of compensation was enhanced to
Rs. 50,000/-.
In our efforts to look after and protect the human
rights of the convict we cannot forget the victim or his
family in case of his death or who is otherwise incapacitated
to earn his livelihood because of criminal act of the
convict. 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. Subject of victimology is gaining ground while we are
also concerned with the rights of the prisoners and prison
reforrms. 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 particularly in case of death and
other bodily injury. This is apart from the factors like loss
of reputation, humiliattion, etc. An honourr which is lost or
life which is snuffed out cannot be recompensed but then
monetary compensation will at least provide some solace.
Black’s Law Dictionary defines "reparation" as
"payment for an injury or damage, redress for a wrong done.
Several states have adopted the Uniform Crime Victims
Reparation Act. Certain federal statutes also provide for
reparation for violation of Act; e.g. persons suffering
lossed because of violations of Commodity Futures Trading Act
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may seek reparation under the Act against violator; Payment
made by one country to another for damages during was".
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 as
practical or material. The term can also be used to describe
more intangible outcomes, as where an offender makes an
apology to a victim and provides some reassurance that the
offence will not be repeatted, thus repairing the
psychological harm suffered by the victim as a result of the
crime.
In England a recent enactment has been made called
the Prisoners’ Earnings Act, 1996. It empowers the prison
administration to make deduction from the earnings of the
prisoner of an amount not exceeding the prescribed limit.
This deduction does not include certain statutory deductions
like income-tax and payments required to be made by an order
of a court. The amount so deducted shall be applied for
(a)the making of paymeents (directly or indirectly) to
such voluntary organizations concerned with victim support or
crime prevention or both as may be prescribed;
(b)the making of payments into the consolidated Fund
with a view to contributing towards the cost of the
prisoner’s upkeep;
(c) the making of payments to or in respect of such
persons (if any) as may be determined by the governor to the
dependants of the prisoners in such proportions as may be so
determined; and
(d)the making of payments into an investment account of
a prescribed description with a view to capital and interest
being held for the benefit of the prisoner on such terms as
may be prescribed.
The question then arises for consideration is if
Article 330A bars payment of any compensation to the victim
or his family out of the earnings of the prisoner. To bar any
such objection to the validity of deduction 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 of his
family, as the rules may provide for the purpose. Creation of
fund, to my mind, is necessary as any amount of compensation
deducted from the wages of the prisoner and paid directly to
the victim or his family may not be acceptable considering
the psyche of the people in our country.
To conclude while agreeing with the directions issued
by Thomas, J. I am of the view that putting a prisoner to
hard labour while he is undergoing sentence of rigorous
imprisonment awarded to him by a court of compentence
jurisdiction cannot be equated with ’begar’ or ’other similar
forms of forced labour’ and there is no violation of clause
(1) of Article 23 of the constitution. Clause (2) of Article
23 has no application in such a case. Constitution, however,
does not bar a State, by appropriate legislation, from
granting wages (by whatever name called) to prisoners subject
to hard labour under courrts’ orders, for their beneficial
purpose or otherwise.