{"id":158742,"date":"1998-09-24T00:00:00","date_gmt":"1998-09-23T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-gujarat-and-anr-vs-honble-high-court-of-gujarat-on-24-september-1998"},"modified":"2016-04-23T06:15:23","modified_gmt":"2016-04-23T00:45:23","slug":"state-of-gujarat-and-anr-vs-honble-high-court-of-gujarat-on-24-september-1998","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-gujarat-and-anr-vs-honble-high-court-of-gujarat-on-24-september-1998","title":{"rendered":"State Of Gujarat And Anr vs Hon’Ble High Court Of Gujarat on 24 September, 1998"},"content":{"rendered":"
Supreme Court of India<\/div>\n
State Of Gujarat And Anr vs Hon’Ble High Court Of Gujarat on 24 September, 1998<\/div>\n
Author: Thomas<\/div>\n
Bench: D.P. Wadhwa, K.T.Thomas<\/div>\n
           PETITIONER:\nSTATE OF GUJARAT AND ANR.\n\n\tVs.\n\nRESPONDENT:\nHON'BLE HIGH COURT OF GUJARAT\n\nDATE OF JUDGMENT:\t24\/09\/1998\n\nBENCH:\nD.P.  WADHWA, K.T.THOMAS,\n\n\n\n\nACT:\n\n\n\nHEADNOTE:\n\n\n\nJUDGMENT:\n<\/pre>\n
O R D E R
\nWhile concluding his opinion my learned brother K.T.
\nThomas, J.  has made certain directions\t to  the  respective
\ngovernments  to\t which\tconclusion  my\tlearned\t bother D.P.
\nWadhwa, J.  in his separate opinion has accorded assent.   I
\ntoo  would  accord  approval  to  those directions and order
\ndisposal of these appeals and writ petitions.
\nThomas J.\n<\/p>\n
A  delicate  issue  requiring  very   circumspective
\napproach is  mooted  before  us:  Whether prisoners, who are
\nrequired to do labour as part  of  their  punishment  should
\nnecessarily  be\t paid  wages  for  such\t work  at  the rates
\nprescribed under Minimum Wages\tlaw.\tWe  have  before  us
\nappeals\t filed\tby  some  State\t Governments challenging the
\njudgments rendered by the respective High  Courts  which  in
\nprinciple upheld the contention that denial of wages at such
\nrates  would  fringe  on  infringement of the constitutional
\nprotection against execution of forced labour.
\nShri Rajeev Dhawan, senior counsel put before us the
\nview points of National Human Rights Commission (NHRC) which
\nfeverous the principle that prisoners should be\t paid  wages
\nat the rates prescribed under the Minimum Wages law.  On the
\nrequest\t of  this  Court  Shri\tKapil  Sibal, senior counsel
\naddressed arrguments as Amicus Curiae.During the  course  of
\nhearing\t we  felt  the need to hear the Attorney General for
\nIndia on this important question.  Shri Soli  J.    Sorabji,
\nAttorney  General,  in\tresponse  to  our  request addressed
\narguments substantially in tune with the  approach  made  by
\nthe other  two\tsenior\tcounsel.  We are grateful to all the
\nlearned\t counsel  who  assisted\t us  with   their   valuable
\ncontributions.\n<\/p>\n
The  State  Governments\t which preferred the appeals
\nare generally in agreement  with  the  view  that  prisoners
\nshould\tbe  paid  wages\t and that the present rates of wages
\npaid to\t them  are  too\t meargre  and  hence  they  must  be
\nonhanced.   To\twhat  extent is the plank on which the State
\nGovernment  contested  these  causes  by   challenging\t the
\njudgements under appeals.\n<\/p>\n
A  Division  Bench  of\tthe  High  Court  of  Kerala
\n(Subramonian  Poti  CJ\tand  Chandrasekhara Menon, J) in the
\ndecision  entitled  as\t“in  the  matter  of  prison  reform
\nenchancement of wages of prisoners” (1983 KLT 512), seems to
\nhave  taken  the  land\tin  this area and suggested that the
\nwages ggiven to prisoners must be  as  per  with  the  wages
\nfixed under the Minimum Wages Act (for short MW Act) and the
\nrequest to deduct the cost for providing food and clothes to
\nthe prisoner from such wages was spurned down.\tThe Division
\nBench  directed\t the  State Government to desigtn a just and
\nreasonable wage structure for the inmates of the prisons who
\nare employed to do lablor, and in the meanwhile to  pay\t the
\nprisoners at  the rate of Rs.  8 per day until Government is
\nable to decide the appropriate wages  to  be  paid  to\tsuch
\nprisoners.   Learned  counsel for the State submitted before
\nus that the challenge is limited  to  the  question  whether
\ndeduction of cost of food and clothes is permissible.
\nGujarat\t High  Court  adopted  the same stand as the
\nDivision Bench of Kerala had taken  in\tthe  decision  cited
\nsupra (1983  KLT  512).\t   The\tjudgment  was  rendered by a
\nDivision Bench headed by P  Subramaniam\t Poti,\tCJ  and\t the
\nreasons\t adverted  in  the decision of the kerala High Court
\nwere reiterated.\n<\/p>\n
A Singh Judge of Rajasthan High Court suggested that
\nthe State Government shall appoint a Commission to  go\tinto
\nthe  entire  wage Structure for the convicted prisoners, and
\ntto lay down rules, and in the meanwhile directed the  State
\nto  pay\t to  the prisoners at the rates tentatively fixed by
\ntthe learned Judge.  A Division\t Bench\tconfirmed  the\tsaid
\njudgement which is now challenged by the State of Rajasthan.
\nA  Division  Bench  of\tthe  High  Court of Himachal
\nPradesh (Bhawani Singh and Devendra Gupta, JJ)\tvide  Gurdev
\nSingh Vs.    State  (AIR  1976\tHP  76)\t directed  the State
\nGovernment  to\tundertake  comprehensive  jail\treforms\t and
\nappoint\t a high powered committee within a year to look into
\nthe various aspects including payment of reasonable  minimum
\nwages to the prisoners.\t At the same time the Division Bench
\ndirected  that\t“the  provisions  permitting  realisation of
\nmaintenance charges from the prisoners\tbne  dispensod\twith
\nforthwith  and\tno  future recovery be made in this behalf.”
\nState of  Himachal  Pradesh  has  now  challenged  the\tsaid
\njudgment before us.\n<\/p>\n
All  the  above appeals and two writ petitions filed
\nby some prisoners (or on their behalf),\t for  directing\t the
\nState  Government concerned to enchance the wages payable to
\nthe prisoners have been heard by us in …..
\nIndian prisons are now crammed with prisoners.\t  In
\nmany  jails  theyt  are\t so over-crowded that the amentities
\ndesigned for a far less number\tof  inmates  are  now  being
\nshared\tby  disproportionately\tlarge  number  of  internees
\ntherein, e.g.  In Bihar jails, as against a prison  capacity
\nof  26,300  the actual number of internees during first half
\nof 1996 was 36,700.  In Madhya Pradesh the figure is  27,300
\nas against  a  prison  capacity of 17,720.  Even in Delhi it
\nhas crossed 8,300 as against a prison capacity of 2,400.
\nThere are   principally\t  two\tcategories:\t (1)
\nunder-trial  prisoners\tand (2) convicted prisoners (Besides
\nthem there are those detained  as  preventive  measure,\t and
\nthose  undergoing detention for default of payment of fine).
\nThose in the first category cannot be  required\t to  do\t any
\nlabour while they remain in jail, but they far outnumber all
\nthe remaining categories put together.\tStatistics show that
\nin  most  of  the  States  the\tunder-trial  prisoners\thave
\noverwhelming majority  when  compared  with  the  number  of
\nconvicted prisoners,  e.g.    Under-trial prisoners in Bihar
\njails are 84.04% of the total inmates of the jails.  In U.P.
\nthe percentage is 85.17.  In Madhya Pradesh it is 64.22% and
\nin most other States the percentage of under-trial prisoners
\nis above 50.\n<\/p>\n
Jail authorities are enjoined by law to impose\thard
\nlabour\ton  a  particular section of the convicted prisoners
\nwho were sentenced to rigorous imprisonment.  Section 53  of
\nthe Indian Penal Code which falls under the Chapter entitled
\n“Of Punishments” vivisects punishments into five categories,
\nof  which  the\tcategory “imprisonment” has been further sub
\ndivided into two sub categories as “rigorous” and  “simple”.
\nRigorous  imprisonment\tis  explained  as “imprisonment with
\nhard labour”.  Section 60 of the Indian Penal  Code  confers
\npower\ton   a\t sentencing   court  of\t direct\t that  “such
\nimprisonment  shall  be\t wholly\t rigorous   or\t that\tsuch
\nimprisonment  shall  be\t wholly\t simple, or that any part of
\nsuch imprisonment shall be rigorous and\t the  rest  simple”.
\nor  that any part of such imprisonment shall be rigorous and
\nthe rest simple”.  The sentence of “imprisonment  for  life”
\ntagged\talong  with  a\tnumber of offences delineated in the
\nIndian Penal Code is interpreted as  “rigorous\timprisonment
\nfor life”  and not simple imprisonment.\t (Vide the decisions
\nof COnstitution Bench in G.V.  Godse Vs.  State –  AIR\t1961
\nSC 600,\t and  Naib  Singh Vs.  State of Punjab – AIR 1983 SC\n<\/p>\n
855).\n<\/p>\n
A person sentenced to simple imprisonment cannot  be
\nrequired  to  work  unless  he\tvolunteers himself to do the
\nwork.  Section 374 of the IPC makes imposition of work on an
\nunwilling person as an offence.\t The section reads thus:
\n\tWhoever\t unlawfully  compels  any  person to labour
\n\tlabour\tagainst\t the  will  of\tthat person shall be
\n\tpunished with imprisonment of  either  descriptions,
\n\tfor a term which may extend to one year or with fine
\n\tor with both.”\n<\/p>\n
But   the  jail\t officer  who  requires\t a  prisoner
\nsentenced to rigorous imprisonment to do hard  labour  would
\nbe  doing  so  as enjoined by law and mandated by the court.
\nNo.  prisoner  sentenced  to   rigorour\t  imprisonment\t can
\nconceivably complain that the jail authorities committed the
\noffence\t under\tSection\t 374  of IPC by compelling him to do
\nwork during the term of his imprisonment. So the task to  do
\nlabour\tcan  be\t imposed  on  a prisoner only if he has been
\nsentionced to rigorous imprisonment Neither the\t under-trial
\ninternees  nor\tthe  detainees\twith simple imprisonment non
\neven detenus who are kept in jails as preventive measres can
\nbe asked to do manual work during their prison term. It is a
\ndiferent matter that he is allowed to do it at his request.
\nTwo profiles emerge from the above discussion. First
\nis a vast majority of prisoners are not concerned about\t the
\nwages  for  the\t labour\t in  jails.  It\t is only for a small
\nsection of the detainees that this exercise  would  benefit.
\nSecond is that hard labour is enforced on those sentenced to
\nrigorous  imprisonment\tby  the\t sanction  of  law  and jail
\nauthorities cannot disobey the directions of the court which
\npassed the sentence.\n<\/p>\n
The first contention before us was  that  when\thard
\nlabour is made a part of punishment as lawfully imposed, can
\nit be equated with the normal employer – employee phenomenon
\nso  as to entitle the prisoner to the social and legislative
\nbenefits which a free employee gets outside the walls of the
\nprison. The picture endeavoured to be portrayed\t before\t us,
\nin support of the contention, is that in a country like ours
\nwhere  unemployment  among  youth is so rampant and acute, a
\nlife assuring reasonably good living and a minimum income at
\nthe rates fixed for employees of industrial  and  commercial
\nestablishments\t would\t provide   great  incentive  to\t the
\nunemployed youth to resort to crimes for carving out a route
\nto the jails, albeit under conditions of incarceration. This
\nwould gallop the  crime\t rates\tupward\tas  many  among\t the
\nunemployed  may\t feel  tempted\tto  avail themselves of such
\nadvantages  despite  the   disadvantages,   apprehends\t the
\naforesaid school of thought.\n<\/p>\n
But  that  argument will not and should not deter us
\nfrom considering minimum wages for  the\t average  individual
\nwould  abhor  incarceration  in\t jails, whatever comfort and
\nmonetary benefit it may provide to them. The reality is that
\neven those inside the  jails,  by  and\tlarge,\tare  looking
\nforward\t to  the  day  of  their  release so as to get their
\npersonal freedom restored so that they can move about freely
\nin societty, live with their beloveds and to enjoy the\tfree
\natmosphere  of\tlife.  Most  of them are in certitude of the
\nprecise number of months, weeks and days  they\thad  already
\nspent in jails as well as the number of days they secured by
\nway of remissions and also the remaining period they have to
\ncontinue  in  jails before attaining the cherished exit from
\nthe iron gates of the bastions.\n<\/p>\n
Learned Chief  Justic P.  Subramanion Poti, speaking
\nfor the Division Bench of the  Kerala  High  Court,  in\t the
\ndecision  cited\t above\t(1983  Kerala  Law  Times  512)\t has
\nfrescoed a picture of reality that  “many  accelerate  their
\nrelease\t by  purchasing remission parting with the few paise
\nthat they earn by way of wages and by donating blood in\t the
\nhope  that  this  process  takes them nearer to the day when
\nthey can be back in the\t affectionate  atmosphere  at  home.
\nThe most deterrent factor in imprisonment is really the fact
\nof  curtailment of personal freedom. It may not be necessary
\nto make it harsh and inhuman in order to render the sentence
\nof imprisonment a deterrent.”\n<\/p>\n
Article 23 of  the  Constitution  prohibits  “forced
\nLabour”\t  and\tmandated  that\tany  contravention  of\tsuch
\nprohibition shall be an\t offence  punishable  in  accordance
\nwith law. That Article reads thus:\n<\/p>\n
\t“23.  Prohibition  of  traffic\tin  human beings and
\n\tforced labour-\n<\/p>\n
\t(1)   Traffic in human beings and  begar  and  other
\n\tsimilar\t forms\tof  forced labour are prohibited any
\n\tany contravention of  this  provision  shall  be  an
\n\toffence punishable in accordance with law.
\n\t(2)    Nothing\tin  this  article  shall prevent the
\n\tState from imposing compulsory\tservice\t for  public
\n\tpurposes,  and\tin  imposing  such service the State
\n\tshall not make any discrimination of grounds only of
\n\treligion. race. caste or class or any of them.”
\nArticles 23  and  24\tare\t the\t only\t two
\nprovisions  subsumed  under  the  heading   “Right   against
\nexploitation.” The latter provision prohibits children being
\nemployed  in factory or mine or other hazardous employments.
\nIn the former three unsocial practices are  prohibited:\t (1)
\nTraffic\t in human beings, (2) Begar and (3) similar forms of
\nforced labour. Traffic in human beinghs\t is  absolute  while
\nprohibition  aghainst “forced labour” is made subject to one
\nexception, i.e., State is  permitted  to  impose  compulsory
\nservice\t if  such  service  is necessary for public purpose.
\nOtherwise the ban against forced labour\t is  also  absolute.
\nThe  expression\t “forced  labour” seems to be collocted with
\nthe word “begar”. the work “begar” was of Indian origin\t and
\nhas,  in  due  course  of time gained entry into the English
\nvocabulary. That word is understood  to\t be  the  labour  or
\nservice\t which a person is forced to give without reeceiving
\nany remuneration for it. It was so held by a Division  Bench
\nof  the\t Bombay High Court in Vasudevan vs. Mittal (AIR 1962
\nBombay 53) and that was approved by this Court\tin  People’s
\nUnion for Democratic Rights vs. Union of India<\/a> [1982 (3) SCC
\n235].\n<\/p>\n
When  the  Constitution qualified “forced labour” by
\nassociating it with other works\t “begar\t and  other  similar
\nforms” it was not for shrinking the scope of the prohibition
\nto  some  types of forced labour. Learned Judges in People’s
\nUnion for Democratic Rights have observed that forced labour
\nmay arise in several ways, it may be physical fore,  it\t may
\nbe  force  exerted  through  a\tlegal  provision such as the
\nprovision for imprisonment or  fine  in\t case  the  employee
\nfails  to  provide  labour  or\tservice\t or  it\t may even be
\ncompulsion  arising  from  hunger  and\tpoverty,  want\t and
\ndestitution.  Any factor which deprives a person of a choice
\nof alternatives and compels  him  to  adept  one  particular
\ncourse\tof  action  may\t properly  be regarded as force. The
\nBench observed thus:\n<\/p>\n
\t“We  are,  therefore, of the view that where a
\n\tperson provided labour\tor  service  to\t another  or
\n\tremuneration  which  is\t less than minimum wage, the
\n\tlabour or service  provided  by\t him  clearly  falls
\n\twithin\tthe  scope  and\t ambit\tof the words “forced
\n\tlabour” under Article 23.”\n<\/p>\n
We are in respectful agreement\twith  the  aforesaid
\nview.\n<\/p>\n
Would  the  Constitution-makers\t have  thought\tthat
\nimposition of hard labour on the convicted prisoners is\t not
\nincluded  within the concept of “forced labour” envisaged in
\nArticle\t 23.  In   many\t  other\t  Republican   COnstitutions
\nprotection   aginst   forced  labour  is  subjected  to\t the
\nexception that hard  labour  imposed  on  convicted  persons
\nwould not be “forced labour.”\n<\/p>\n
In the\tConstitution  of  United  State\t of  America
\nSection\t 1  of\tthe  Thirteenth\t amendment 1865 contains the
\nfollowing provision:\n<\/p>\n
“(i)\tNither\t slavery   nor\t involuntary
\n\tservitude,  except as a punishment for crime whereof
\n\tthe party shall\t have  been  duly  convicted,  shall
\n\texist  within the United State, or any place subject
\n\tto their jurisdiction.”\n<\/p>\n
Same exception is seen incorporated in the analogous
\nprovision  of  the  Constitution  of a large number of other
\nRepublics.  For example, Burma, Japan, Cyprus,\trepublic  of
\nKorea, Malaysia,  Nepal, Pakistan etc.\tto cite one example,
\nArticle 19 of the Constitution of Burma, 1948 reads thus:
\n\ti.   Traffic in human beings, and
\n\tii.   Forced  labour  in  any  form  and involuntary
\n\tservitude, except as a punishment for crime  whereof
\n\tthe  party  shall have been duly convicted, shall be
\n\tprohibited.\n<\/p>\n
\tExplanation:-  Nothing in this section shall
\n\tprevent the State from imposing\t compulsory  service
\n\tfor  public  purpose  without  any discrimination on
\n\tgrounds of birth, race, religion or class.\n<\/p>\n
\t\t\t\t     (emphasis supplied)
\nIn this connection  it\tis  worthy  of\tnotice\tthat
\nduring the making of our Constitution the same execption was
\nthought\t of  in the original draft. Clause 11 of the Chapter
\nfor Fundamental Rights as adopted by the Advisory  Committee
\nread like this:\n<\/p>\n
\t“11. (a) Traffic in human beings, and\n<\/p>\n
\t(b) forced labour in any form  including  begar\t and
\n\tinvoluntary  servitude\texcept\tas  a punishment for
\n\tcrime  whereof\tthe  party  shall  have\t been\tduly
\n\tconvicted,
\n\tare  hereby prohibited and any contravention of this
\n\tprohibition shall be an offence.”\n<\/p>\n
After a full debate the Constituent Assembly  adopted
\nclause\t11 by chiselling it down to the form in which Article
\n23 of the COnstitution is now shaped. (vide page 252  to  257
\nof  “The  Framing  of India’s COnstitution” – A Study by B.N.
\nAmbedkar in his summing up remarks asid\t in  the  Constituent
\nAssembly  that\tthe  exception\tenvisaged  in  sub-clause (2)
\nregarding “public purposes” is very wide  enough  to  contain
\nall  such exceptional conditions. Thus it is apparently clear
\nthat imposition of forced  labour  on  a  prisoner  will  get
\nprotection  from the ban under Article 23 of the COnstitution
\nonly if it can be justified as a necessity  to\tachieve\t some
\npublic purpose.\n<\/p>\n
So the question now to be considered is, whether such
\ncompulsory labour can be  justified  by\t testing  it  on  the
\ntouchstone of “public purpose”.\t What public purpose possibly
\nbe  served  by\texacting  such\tlabourr\t work  from convicted
\nprisoners?  It is said that hard labour imposed on the proved
\noffenders would have a deterrent effect against\t others\t from
\ncommitting  crimes and thus society would, to that extent, be
\nprotected from perpetration of criminal offences by others.
\nThis is the context to consider whether deterrence is
\nthe main objective for punishment.  Among the conflicting the
\nories for punishment modern criminologists  are\t highlighting
\nthe  reformative  effect on the punished criminal as the most
\ngermane aspect.\t Jereme Bentham who propounded the theory  of
\ndeterrence is now considered as apostle of a conservative old
\nschool of  thought.    Retributive  theory  of punishment has
\nwaned into a  relic  of\t the  primitivity  because  civilised
\nsociety\t has  realised\tthat  retribution  cannot  solve  the
\nproblem of  escalating\tcriminal  offences.    Crime  is  now
\nconsidered to  be  a  problem of social hygiene.  That modern
\ndiagnosis made by criminologists is now causing a sea  change
\nto the\twhole  approach\t towards  crime\t and punishment.  The
\nemphasis involved in punishment has now been transposed\t from
\nretribution  to cure and reform so that the original man, who
\nwas mentally  healthy,\tcan  be\t recreated  from  the  ailing
\ncriminal.\n<\/p>\n
To  Mother  Teresa “the prisoner is Jesus to me”. The
\nworld renowned philanthropist, as she was,  would  have\t been
\nvery much inspired by the scriptural words pronounced by Lord
\nJesus as quoted in the gospel according to Mathew (chapter 25
\nverse 36):\n<\/p>\n
\t“Then  the King will say to those on his right hand –
\n\t‘Come ye, who are blessed by  my  Father  in  Heaven,
\n\tfor, I was ……… in prison and you came to see me
\n\tyou  cursed  ones,  for, I was …….. in prison and
\n\tyou did not visit me”.\n<\/p>\n
It is a grand transformation recorded  in  the\tepics
\nthat  the  hunter Valmiki turned out to be a poet of enternal
\nrecognition.  If  the  powers  which   brought\t about\t that
\ntransformation\thad  remained  inactive the world wwould have
\nbeen poorer without the great  epic  “Ramayana.”  History  is
\nreplete\t with  instances of bad persons transforming into men
\nof great usefulnedd to humanity. The causes which would\t have
\ninfluenced  such  swing may be of various kinds. forces which
\ncondemn a prisoner and consign him to the cell as a  case  of
\nirredeemable  character\t belong\t to  the  pessimistic society
\nwhich lacks the vision to see the innate good in man.
\nTheory of reformation through punishment is  grounded
\non  the\t sublime  philosophy  that every man is born good but
\ncircumstances transform him into  a  criminal.\tThe  aphorism
\nthat “If every saint has a past every sinner has a future” is
\na tested philosophy concerning human life. V.R. Krishna Iyer.
\nJ.  has\t taken\tpains  to  ornately  fresco  the reforrmative
\nprofile\t of  the  principles  of  senteencing\tin   Mohammad
\nGiasuddin vs. State of Andhra Pradesh<\/a> [1977 (3) SCC 287]. The
\nfollowing passage deserves special mention in this context:
\n\t“If the psychic perspective and the spiritual insight
\n\twe  have  tried to project is valid, the police bully
\n\tand the prison\tdrill  cannot  ‘minister  to  a\t mind
\n\tdiseased’,  nor\t tone  down  the tension, release the
\n\trepression, unbend  the\t prevention,  each  of\twhich
\n\tshows  up  as  debased\tdeviance,  violent  vice  and
\n\tbehavioural  turpitude.\t It  is\t  a   truism,\toften
\n\tforgotten  in  the  hidden  vendotta in human bosoms,
\n\tthat barbarity breeds barbarity, and  injury  recoils
\n\tas injury, so that if healing the mentally or morally
\n\tmaimed\tor  malformed man (found quilty) is the goal,
\n\tawakening  the\tinner  being,  more  than   torturing
\n\tthrough\t  exterior   compulsions,  holds  out  better
\n\tcurative hopes.”\n<\/p>\n
Reformation should hence be the dominant objective of
\na punishment and during incarceration every effort should  be
\nmade to recreate the good man out of a convicted prisoner. An
\nassurance  to  him  that  his  hard  labour  would eventually
\nsnowball into a handsome saving forr his  own  rehabilitation
\nwould  help  him  to  get  stripped  of\t the  moroseness  and
\ndesperation in his mind while toiling  with  the  rigours  of
\nhard  labour  during  the  period  of  his  jail  life. Thus,
\nreformation and rehabilitation of a  prisoner  are  of\tgreat
\npublic policy. Hence they serve a public purpose.
\nReformative  approach  is  now\tvery much intertwined
\nwith rehabilitative aspect to a\t convicted  prisoner.  It  is
\nhence  reasonable conclusion from the above discussion that a
\ndirective from the  court  under  the  authority  of  law  to
\nsubject\t a  convicted  person  (who was sentenced to rigorous
\nimprisonment)  to  compulsory  manual\tlabour\t gets\tlegal
\nprotection  under  the\texemption  provided  in Clause (2) of
\nArticle 23 of the Constitution because\tit  serves  a  public
\npurpose.\n<\/p>\n
All the learned counsel who argued before us  are  in
\nunision\t in  agreeing to the proposition that no prisoner can
\nbe asked to do labour free of wages.   It  is  not  only  the
\nlegal  right of a workman to have wages for the work, it is a
\nsocial\timperative  and\t an  ethical  compulsion.  Extracting
\nsomebody’s work without giving him anything in return is only
\nreminiscent of the period of slavery and the system of begar.
\nIt  is\tonly  appropriate  in  this context to remind
\nourselves of  what  Chandrachud\t J.  (as  the  learned\tChief
\nJustice\t then  was)  has observed in Bhuvan Mohan Patnaik Vs.
\nState of Andhra Pradesh [1975 (3) SCC 185] :
\n\t“Convicts are not, by mere reason of the conviction,
\n\tdenduded of all the fundamental\t rights\t which\tthey
\n\totherwwise possess. A compulsion under the authority
\n\tof  law,  following  upon a conviction, to live in a
\n\tprisonhouse entails by its own force the deprivation
\n\tof fundamental\tfreedoms  like\tthe  right  to\tmove
\n\tfreely\tthroughout  the\t territory  of\tIndia or the
\n\tright  to  “practise”  a  profession.\tA   man\t  of
\n\tprofession would thus stand stripped of his right to
\n\thold  consultations  while serving out his sentence.
\n\tBut the Constitution guarantees other freedoms\tlike
\n\tthe  right  to acquire, hold and dispose of property
\n\tforr the exercise of which incarceration can  be  no
\n\timpediment,  likewise, even a convict is entitled to
\n\tthe precious right guaranteed by Article 21  of\t the
\n\tConstitution  that  he\tshall not be deprived of his
\n\tlife  or  personal  liberty  except   according\t  to
\n\tprocedure established by law.”\n<\/p>\n
Having\tthus  found  that  like\t any other workman a
\nprisoner is also entitled to wages for his work the question
\nnext to be considered is – what is the\trate  at  which\t the
\nprisoner  should  be  paid  for their work? We have no doubt
\nthat payingg a pittance to them is virtually paying nothing.
\nEven if the amount paid to them is  a  little  mere  than  a
\nnominal\t sum  the  resultant position would remain the same.
\nGovernment of India had set up in 1980 a committee  on\tjail
\nreforms\t under\tthe  Chairmanship of Mr. Justice AN Mulla, a
\nretired judge  of  the\tAllahabad  High\t Court.\t The  report
\nsubmitted by the said Committee is known as ‘Mulla Committee
\nReport.”  It  contains\ta  lot of very valuable suggestions,
\namong which the following are contextually apposite.
\n\t“All prisoners under sentence should be\t required  to
\n\twork  subject to their physcial and mental fitness as
\n\tdetermined medically. Work is not to be conceived  as
\n\tadditional  punishment\tbut  as a means of furthering
\n\tthe rehabilitation of the prisoners,  their  training
\n\tfor  worrk, the forming of better work habits, and of
\n\tpreventing idleness and disorder…………
\n\tPunitive, repressive and afflictivee work in any form
\n\tshould not be given to\tprisoners.  Work  should  not
\n\tbecome\ta drudgery and a meaningless prison activity.
\n\tWork and trainig  programmes  should  be  treated  as
\n\timportantt  avenues  of\t imparting  useful  values to
\n\tinmates for their vocational  and  social  adjustment
\n\tand  also  for\ttheir  ultimate rehabilitation in the
\n\tfree community…………..\n<\/p>\n
\tRates of Wages should be fair and equitable  and  not
\n\tmerely\tnominal\t or  paltry.  These  rates  should be
\n\tstandardised so as to achieve a broad  uniformity  in
\n\twage  system  in  all  the  prisons in cash State and
\n\tUnion Territory.”\n<\/p>\n
While considering the quantum of wages payable to the
\nprisonerrs  we\tare  persuaded\tto  take  into\taccount\t  the
\ncontemporary  legislative  exercises  on wages. Minimum wages
\nlaw has now come to stay. This COurt has  held\tthat  minimum
\nwage which is sufficient to meet the bare physical needs of a
\nworkman and his family irrespective of the paying capacity of
\nthe  industry  must  be somethings more than subsistence wage
\nwhich may be sufficient to cover the bare physical  needs  of
\nthe worker and its family including education, medical needs,
\namenities   adequate  for  preservation\t is  his  efficiency.
\n(Express Newspapers Ltd.,Vs. Union of India, 1959 SCR 12).
\nServal\tguidelines  have   been\t  provided   by\t  the
\nlegislature  for  fixing  the  rates of minimum wages and the
\nneed to make periodical revisions. Section 3 of\t the  MW  Act
\nenjoins\t a statutory duty on the approprite government to fix
\nminimum rates of wages payable to employees  employed  in  an
\nemployment  and to review the rates of wages so fixed at such
\nintervals as the government may think fit but  not  exceeding
\nfive  years.  Section 5 of the MW Act provides that in fixing
\nminimum rates of wages in respect of the scheduled employment
\nfor the first time or in revising such rates  the  government
\nshall  appoint\tcommittees  to\thold enquiries and advise the
\ngovernment in respect of such fixation.\n<\/p>\n
Alternatively, the  government\tis  obliged  to\t publish  its
\nproposals.  Fixation or revision of minimum wages can be made
\nonly in consideration of the advice of the committee and  the
\nrepresentations received about it.\n<\/p>\n
The  State  of\tkerala\tin  the\t appeal has expressed
\nobjection to pay the prisoners at the rates fixed as  per  MW
\nlaw.   But  during  arguments  learned\tcounsel for the State
\nsubmitted that Government is willing  to  pay  the  prisoners
\nwages  at the said rates after deducting a certain percentage
\ntherefrom which represents the amount needed for the food and
\nclothes supplied to the prisoners. Such a plea for  deduction
\nwas  rejected  by the High COurts, mainly on the premise that
\nthe obligation to provide food and clothes to  the  prisoners
\nis  the\t inherent  obligation  of the State on account of the
\nvery fact of their internment in prisons. The Division\tBench
\nof  the\t High  Court  of  Himachal  Pradesh  spurned down the
\naforesaid plea made on behalf of the State.  Learned  Judgges
\nhave  quoted from the Full Bench decision of the Gujarat High
\nCourt in Jail Reforms  Committee  Vs.  State  of  Gujarat  as
\nfollows:\n<\/p>\n
\t“Under-trials are in custody in Jails and  sub-jails.
\n\tThey are not to do any work nevertheless they have to
\n\tbe fed\tand clothed.  There are detenus under the law
\n\tof preventive detention who are\t also  provided\t with
\n\tfood  and clothing in jails without any return by way
\n\tof work.  There are prisoners sentenced\t to  rigorous
\n\timprisonment  wwho are sick and are unable to do work
\n\tand they have necessarily to be fed.  They cannot  be
\n\ttold  that  since  they\t do not work they will not be
\n\tfed.  Even those who are able to work and  who\tcould
\n\tbe compelled to do labour may not be given labour due
\n\tto  absence  of\t work  as  the reply affidavit of the
\n\tState Government shows.\t It mentions  that  at\ttimes
\n\tthe  sales  of produce manufactured in jails are poor
\n\tand then many go without work. It cannot be said that
\n\tthey will not be fed when there\t is  no\t work.\tThese
\n\twork  illustrate  beyond  doubt\t that  feeding\tof  a
\n\tprisoner is a responsibility of those  who  keep  the
\n\tprisoner  in  custody irrespective of any return from
\n\thim. It\t is  so\t not  only  human  beings,  but\t even
\n\tanimals.  When\tthey  are not allowed to be free they
\n\thave to be fed. It will be uncivilised, if not cruel,
\n\tto extract from such prisoners\tthe  return  for  the
\n\tfood  and  clothing  supplied  to  them\t not food and
\n\tclothing of their choice, not food  and\t clothing  of
\n\texcellence,  but  only\ta  bare subsistence which any
\n\tauthority that keeps another in\t custody  and  retain
\n\tmust  necessarily meet as a compulsory obligation. If
\n\tthe prisoners’ wages is\t appropriated  for  the\t food
\n\tnaturally  the\tprisoner must have a choice of saying
\n\tno and making his own choice of the food. That cannot
\n\tbe the case.\n<\/p>\n
It is true that State Government has the  obligattion
\nto  bear  the  expenses needed for providing food and clothes
\nand other amenities to every prisoner, whether his  detention
\nis  during post conviction period or pre-conviction period as
\nunder-trial prisoner or has been preventively detained or  is
\ninterned  as  a\t consequence  of  defaulting  payment of fine
\nimposed as punishment. If that\tis  the\t only  angle  through
\nwhich  this question has to be looked at there is, perhaps, a
\npoint to castigate deduction of the amount spent on food  and
\nclothes\t of  a\tprisoner from the minimum wages rate. But the
\nissue has to be looked at from three other angles also.
\nFirst is this, if wages at the rates fixed  under  MW
\nAct  are paid to a prisoner without making any such deduction
\nits not effect would be that he gets  wages  apparently\t more
\nthan  the  emoluments  of a workman who does the same type of
\nwork outside the jail. This is because the latter has to meet
\nhis expenses for food and clothes from the minimum wages paid
\nto him.\n<\/p>\n
Second angle is, the  Government  which\t has  to  pay
\nwages  to the prisoner has the additional liability to supply
\nclothes and food to him\t because  government  has  the\tduty,
\nwilly nilly, to keep a convicted person in prison during such
\nterm  as  the  Court  sentences\t him  to  imprisonment. It is
\ntaxpayer’s money which Government is  expending\t for  keeping
\nthe  prisoners\tinside\tthe  jail  by  providing him food and
\nclothes and other amenities. It is not because Government  is
\nhappy  to do it or is looking forward to do it. It is a legal
\ncompulsion on the Government. But its  incidence  is  on  the
\ncommon man’s coffer.\n<\/p>\n
The third angle, and it is very\t important  for\t this
\npurpose,  is  that  even  MW Act permits the employer to make
\ndeductions of certain kinds from the  wages  of\t an  employed
\nperson.\t  Section  12  of  the\tAct  permits him to make such
\ndeductions  as\tmay  be\t authorised  and  subject   to\t such
\nconditions as  may  be\tprescribed  by\trules.\tMinimum Wages
\n(Central) rules contain the items of  such  deductions\twhich
\nare  permissible.  Among  such\titems  the  following two are
\npertinent: (1) deductions for house accommodation supplied by
\nthe employer (2) deductions for such amenities\tand  services
\nsupplied  by  the  employer  as the government may authorise.
\nThus deduction of cost of clothes and  food  supplied  to  an
\nemployee  from his wages is not inconsistent with legislative
\npolicy.\n<\/p>\n
When all aspects are considered we  are\t inclined  to
\nthink  that  the  request of the Government to permit them to
\ndeduct the expenses incurred for  food\tand  clothes  of  the
\nprisoners  from\t the  minimum  wages  rates  is\t a reasonable
\nrequest.  There\t is  nothing   uncivilised   nor   unsociable
\npercentage  to\tbe  deducted  from  Minimum Wages taking into
\naccount the average amount which thee government is  spending
\nper  prisoner for providing food, clothes and other amenities
\nto him.\n<\/p>\n
We wish to say something more is this connection.  We
\nare told that the practice followed in many States, either by
\nvirtue\tof the jail rules or by convention, is that a portion
\nof  the\t money\tearned\tby  the\t prisoner  is  sent  to\t  the
\ndependantts  of\t the  prisoner himself and the balance, after
\ndeducting the amount expended by him for his extra  expenses,
\nis  preserved  to  be  isbursed\t to  him  at  the time of his
\nrelease.\n<\/p>\n
One area which is totally  overlooked  in  the\tabove
\npractice  is  the plight of the victims. It is a recent trend
\nin sentencing  policy  to  listen  to  the  wailings  of  the
\nvictims.  rehabilitation  of  the  prisoner  need  not\tbe by
\nclosing\t the  eyes  towards  the  suffering  victims  of  the
\noffence.  A  glimpse  at the field of victimology reveals two
\ntypes of victims. First type consists of direct victims\t i.e.
\nthose  who  are\t alive\tand  suffering on account of the harm
\ninflicted by the prisoner while committing the crime.  Second
\ntype  comprises of indirect victims who are dependants of the
\ndirect victims\tof  crimes  who\t undergo  sufferings  due  to
\ndeprivation of their breadwinner.\n<\/p>\n
Restorative and reparative  theories  have  developed
\nfrom the  aforesaid  thinking.\t  In  the  “Oxfor Handbook of
\nCriminology”, Andrew  Ashworth,\t Prof.\t of Oxford University
\nCentral\t for  Criminological  Research\thas  contributed  the
\nfollowing instructive passage.\n<\/p>\n
\t“Restorative and Reparative theories
\n\tThese  are  not\t theories of punishment Rather, their
\n\targument is that  sentences  should  move  away\t from
\n\tpunishment  of\tthe  offender towards restitution and
\n\treparation, aimed at  restoring\t the  harm  done  and
\n\tcalculated accordingly.\t   Restorative\ttheories  are
\n\ttherefore victim-centred (see  e.g.    Wright  1991).
\n\talthough  in  some versions they encompass the notion
\n\tof reparation to the community\tfor  the  effects  of
\n\tcrime.\t They  envisage\t less resort to custody, with
\n\tonerous community-based sanctions requiring offenders
\n\tto work in  order  to  compensate  victims  and\t also
\n\tcontemplating  support\tand counselling for offenders
\n\tto reintegrate\tthem  into  the\t community.\t Such
\n\ttheories therefore  tend  to  act  on  a  behavioural
\n\tpremise\t similar to rehabilition, but their political
\n\tpremise is that compensation for  victims  should  be
\n\trecognized  as\tmore  important\t than notions of just
\n\tpunishment on behalf of the State.\n<\/p>\n
\tLegal systems based or a  restorative  rationale  are
\n\trare,  but  the\t increasing tendency to insert victim
\n\torientated measures such as compensation orders\t into
\n\tsentencing  systems  structured\t to impose punishment
\n\tprovides a fine example of Garland’s observation that
\n\tinstitutions are the scenes of\tparticular  conflicts
\n\tas well as being means to a variety of ends, so it is
\n\tno  surprise to find that each particular institution
\n\tcombines a number of often  incompatible  objectives,
\n\tand  organizes\tthe  relations\tof often antagonistic
\n\tinterest groups”.\n<\/p>\n
Section 357 of\tthe  Criminal  Procedure  Code,\t 1973
\nprovides  some\treliefs\t to  the  victims  as  the  court  is
\nempowered to direct payment of comensation to any person  for
\nany loss or injury caused by the offence. But in practice the
\nsaid  provision\t has  not proved to be of much effectiveness.
\nMany persons who are sentenced to log  term  imprisonment  do
\nnot  pay the compensation and instead they choose to continue
\nin jail in default thereof. It is only when fine alone is the
\nsentence that the convicts invariably  choose  to  remit  the
\nfine. But those are cases in which the harm inflicted on  the
\nvictims\t  would\t  have\t been  far  less  serious.  Thus  the
\nrestorative and reparative theories are not  translated\t into
\nreal benefits to the victims.\n<\/p>\n
It  is\ta constructive thinking for the State to make
\nappropriate law for diverting  some  portion  of  the  income
\nearned\tby  the\t prisoner  when\t he  is in jail to be paid to
\ndeserving victims.  In\tthe  absence  of  any  law  for\t that
\npurpose\t we  are  prevented  from  issuing a direction to set
\napart any portion of the prisoner’s earned wages for  payment
\nto  the victims because of the interdict contained in Article
\n300A the Constitution.\t Hence\twe  suggest  that  the\tState
\nconcerned may bring about a legislation for that purpose.
\nThe above discussion leads to the following conclusions:
\n\t(1)  It is lawful to employ the prisoners  sentenced
\n\tto  rigorous  imprisonment to do hard labour whether
\n\the consents to do it or not.\n<\/p>\n
\t(2) It is open to the jail officials to permit other
\n\tprisoners also to do any work which they  choose  to
\n\tdo  provided  such prisoners make a request for that
\n\tpurpose.\n<\/p>\n
\t(3) It is imperative that  the\tprisoner  should  be
\n\tpaid equitable\twages for the work done by them.  In
\n\torder to determine the quantum\tof  equitable  wages
\n\tpayable\t to  prisoners\tthe  State  concerned  shall
\n\tconstitute  a  wage   fixation\t body\tfor   making
\n\trecommendations.   We  direct each State to do so as
\n\tearly as possible.\n<\/p>\n
\t(4)   Until the State Government takes any  decision
\n\ton  such recommendations every prisoner must be paid
\n\twages for the work done by  him\t at  such  rates  or
\n\trevised\t rates\tas the Government concerned fixes in
\n\tthe light of the observations made above.  For\tthis
\n\tpurpose\t we  direct  all the State Government of fix
\n\tthe rate of such interim wages within six weeks from
\n\ttoday and report to this Court of compliance of this
\n\tdirection.\n<\/p>\n
\t(5)   We recommend to the State\t concerned  to\tmake
\n\tlaw  for setting apart a portion of the wages earned
\n\tby the prisoners  to  be  paid\tas  compensation  to
\n\tdeserving  victims  of the offence the commission of
\n\twhich entailed the sentence of imprisonment  to\t the
\n\tprisoner,  either  directly or through a common fund
\n\tto be created for  this\t purpose  or  in  any  other
\n\tfeasible mode.\n<\/p>\n
The  appeals  and the writ petitions are disposed of
\nin the above terms. registry will despatch a  copy  of\tthis
\njudgment to the Chief Secretary to every State Government.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India State Of Gujarat And Anr vs Hon’Ble High Court Of Gujarat on 24 September, 1998 Author: Thomas Bench: D.P. Wadhwa, K.T.Thomas PETITIONER: STATE OF GUJARAT AND ANR. Vs. RESPONDENT: HON’BLE HIGH COURT OF GUJARAT DATE OF JUDGMENT: 24\/09\/1998 BENCH: D.P. WADHWA, K.T.THOMAS, ACT: HEADNOTE: JUDGMENT: O R D E R While […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-158742","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nState Of Gujarat And Anr vs Hon'Ble High Court Of Gujarat on 24 September, 1998 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-of-gujarat-and-anr-vs-honble-high-court-of-gujarat-on-24-september-1998\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State Of Gujarat And Anr vs Hon'Ble High Court Of Gujarat on 24 September, 1998 - 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