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TMI Blog1998 (9) TMI 685X X X X Extracts X X X X X X X X Extracts X X X X ..... s of National Human Rights Commission (NHRC) which feverous the principle that 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. Sorabji, Attorney General, in response to our request addressed 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 present rates of wages paid to them are too meargre and hence they must be onhanced. To what extent is the plank on which the State Government contested these causes by challenging the judgements under appeals. A Division Bench of the High Court of Kerala (Subramonian Poti CJ and Chandrasekhara Menon, J) in the decision entitled as in the matter of prison reform enhancement of wages of prisoners (1983 KLT 512), se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that the amenities designed for a far less number of inmates 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 of internees during first half of 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: (1) under-trial prisoners 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 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 employer - 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 endeavored 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hildren being employed in factory or mine or other hazardous employments. In the former three unsocial practices are prohibited: (1) Traffic in human beings, (2) Begar and (3) similar forms of forced labour. Traffic in human beinghs is absolute while prohibition aghainst 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 collocted with the word begar . the work begar was of Indian origin and has, in due course of time gained 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 vs. Mittal (AIR 1962 Bombay 53) and that was approved by this Court in People's Union for Democratic Rights vs. Union of India [1982 (3) SCC 235]. When the Constitution qualified forced labour by associating it with other works begar and other similar forms it was not for shrinking the scope of the prohibition to som ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same execption 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. 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.N. Ambedkar in his summing up remarks asid in the Constituent Assembly that the exception envisaged in sub-clause (2) regarding 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 labour can be justif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ks the vision to see the innate good in man. Theory of reformation through punishment is grounded on the sublime 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 reforrmative profile of the principles of senteencing in Mohammad Giasuddin vs. State of Andhra Pradesh [1977 (3) 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, violent vice and behavioural turpitude. It is a truism, often forgotten in the hidden vendotta in human bosoms, that barbarity breeds barbarity, and injury recoils as injury, so that if healing the mentally or morally maimed or malformed man (found quilty) is the goal, awakening the inner being, more than torturing through exterior comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the precious right guaranteed by Article 21 of the Constitution that he shall not be deprived of his life or personal liberty except according to procedure established by law. Having thus found that like any other workman a prisoner is also entitled to wages for his work the question next to be considered is - what is the rate at which the prisoner should be paid for their work? We have no doubt that payingg a pittance to them is virtually paying nothing. Even if the amount paid to them is a little mere than a nominal sum the resultant position would remain the same. Government of India had set up in 1980 a committee on jail reforms under the Chairmanship of Mr. Justice AN Mulla, a retired judge of the Allahabad High Court. The report submitted by the said Committee is known as 'Mulla Committee Report. It contains a lot of very valuable suggestions, among which the following are contextually apposite. All prisoners under sentence should be required to work subject to their physcial and mental fitness as determined medically. Work is not to be conceived as additional punishment but as a means of furthering the rehabilitation of the prisoners, their training for worrk, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State submitted that Government is willing to pay the prisoners wages at the said rates after deducting a certain percentage therefrom which represents the amount needed for the food and clothes supplied to the prisoners. Such a plea for deduction was rejected by the High Courts, mainly on the premise that the obligation to provide food and clothes to the prisoners is the inherent obligation of the State on account of the very fact of their internment in prisons. The Division Bench of the High Court of Himachal Pradesh spurned down the aforesaid plea made on behalf of the State. Learned Judgges have quoted from the Full Bench decision of the Gujarat High Court in Jail Reforms Committee Vs. State of Gujarat as follows: Under-trials are in custody in Jails and sub-jails. They are not to do any work nevertheless they have to be fed and clothed. There are detenus under the law of preventive detention who are also provided with food and clothing in jails without any return by way of work. There are prisoners sentenced to rigorous imprisonment wwho are sick and are unable to do work and they have necessarily to be fed. They cannot be told that since they do not work they will not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entences him to imprisonment. It is taxpayer's money which Government is expending for keeping the prisoners inside the jail by providing him food and clothes and other amenities. It is not because Government is happy to do it or is looking forward to do it. It is a legal compulsion on the Government. But its incidence is on the common man's coffer. The third angle, and it is very important for this purpose, is that even MW Act permits the employer to make deductions of certain kinds from the wages of an employed person. Section 12 of the Act permits him to make such deductions as may be authorised and subject to such conditions as may be prescribed by rules. Minimum Wages (Central) rules contain the items of such deductions which are permissible. Among such items the following two are pertinent: (1) deductions for house accommodation supplied by the employer (2) deductions for such amenities and services supplied by the employer as the government may authorise. Thus deduction of cost of clothes and food supplied to an employee from his wages is not inconsistent with legislative policy. When all aspects are considered we are inclined to think that the request of the G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... theories therefore tend to act on a behavioural premise similar to rehabilition, but their political premise is that compensation for victims should be recognized as more important than notions of just punishment on behalf of the State. Legal systems based or a restorative rationale are rare, but the increasing tendency to insert victim orientated measures such as compensation orders into sentencing systems structured to impose punishment provides a fine example of Garland's observation that institutions are the scenes of particular conflicts as well as being means to a variety of ends, so it is no surprise to find that each particular institution combines a number of often incompatible objectives, and organizes the relations of often antagonistic interest groups . Section 357 of the Criminal Procedure Code, 1973 provides some reliefs to the victims as the court is empowered to direct payment of comensation 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 log term imprisonment do not pay the compensation and instead they choose to continue in jail in ..... 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