1998 Supreme(SC) 1031

1998(7) Supreme 511
Supreme Court of India
(From Gurajat High Court)
M.M. Punchhi CJI, K.T. Thomas and D.P. Wadhwa, JJ.
State of Gujarat & Anr. —Appellants
versus
Hon’ble High Court of Gujarat —Respondent
Criminal Appeal No. 308 of 1986
With
(C.A. Nos. 8443-44/83, W.P (Crl.) Nos. 1113-1122/83, W.P. (C) No. 14150/84, W.P. (Crl.) Nos. 19/93, 494/92, C.A. No. 6125/95 and W.P. (C) No. 12223/84)
Decided on 24-9-1998
Counsel for the Parties :
For the Appearing Parties : Soli J. Sorabji, Attorney General, Dr. N.M. Ghatate, (Kapil Sibal, (AC), A.S. Nambiar, N.N. Goswami, Dr. Rajeev Dhawan, Sr. Advocates, Ms. Meenakshi Arora, Ms. H. Wahi, Ms. Sumita Hazarika, G. Prakash, Aruneshwar Gupta, Ms.    Reena Bagga, Srilok Nath Rath, Manoj K. Das, Dr. Nafis A. Siddiqui, H.K. Puri, Rajesh Srivastava, Ujjwal Banerjee (R.B.B. Ray) Advocate (AC) (NP), Ashok Kumar Sharma, P. Parmeswaran, Gopal Jain, Devika Bezbarwah, Arun Sharma, B.K. Prasad, D.S. Mehra, L.R. Singh, S.K. Mehta, Dhruv Mehta, Fazlin Anam, Ms. Shobha, A.K. Jha, M. Veerappa, K.H. Nobir Singh, S.K. Agnihotri, Naveen Kumar Singh, Sakesh Kumar, Uma Nath Singh, Kailash Vasdev, G.K. Sasi, K.B. Rohtagi, Ms. Aparna Rohtagi Jain, Gopal Singh, A. Mariarputham, Ms. Aruna Mathur, V.G. Pragasam, Ranjan Mukherjee, Ms. S. Janani, Ms. Bina Gupta, S.K. Nandy, Dilip Sinha, J.R. Das, K. Swami, C.V.S. Rao, M.T. George, Ms. A. Subhashini, N.K. Sharma, K.V. Venkataraman, L.R. Singh, R. Sathish, R.B. Misra, Kaulendra Misra, N. Ganpathy, P.N. Misra, S.A. Syed, Ashok Mathur, T. Sridharan, T.A. Khan, D.M. Nargolkar, G. Pra­bhakar, Ms. Lira Goswami, Ms. Ameeta Duggal, Raj Mehta, R.S. Sodhi, Jasbir Malik, Prem Malhotra, Anil Shrivastav, Sunil Kumar Jain, Vijay Hansaria, J.K. Bhatia, B.B. Singh, Ashok Kumar Mathur, Advocates.

Important Points
1. Like any other workman prisoner is also entitled to wages for his work; State Governments can deduct reasonable percentage towards expenses incurred for food of clothes and other amenities provided to prisoner from minimum wages payable to him.
2. Supreme Court recommended State Governments to make law for setting apart portion of wages earned by prisoners to be paid as compensation to victims of offences.

Headnote:Constitution of India—Art. 23—Prisoners Act, 1894—Minimum Wages Act—Payment of wages for prisoners—Like any other workman prisoner is also entitled to wages for his work—Deduction of expenses incurred for food and clothes of prisoner from minimum wages rate is permissi­ble—State Government can arrive at reasonable percentage to be de­ducted from minimum wages taking into account average amount which Government is spending per pri­soner for providing food, clothes and other amenities to him—States directed to constitute a wage fixation body to make recommendations to determine equitable wages payable to prisoners—In mean time States directed to fix interim wages and pay accordingly—State Governments are to make law for sett­ing apart portion of wages earned by prisoners to be paid as compensation to victims of offences either directly or through common fund created.

       Held : When the Constitution qualified “forced labour” by associating it with other words “begar and other similar forms” it was not for shrinking the scope of the prohibition to some types of forced labour. Learned Judges in People’s Union for Democratic Rights have observed that forced labour may arise in several ways, it may be physical force, it may be force exerted through a legal provision such as the provision for imprisonment or fine in case the employee fails to provide labour or service or it may even be compulsion arising from hunger and poverty, want and destitution. Any factor which deprives a person of a choice of alternatives and compels him to adopt one par­ticular course of action may properly be regarded as force. (Para 20)

       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. (Para 25)

       So the question now to be consi­dered is, whether such compulsory labour can be justified by testing it on the touchstone of “public purpose”. What public purpose possibly be served by exacting such labour work from convicted priso­ners? It is said that hard labour imposed on the proved offenders would have a deterrent effect against others from committing crimes and thus society would, to that extent, be protected from perpetration of criminal offences by others. (Para 26)

       This is the context to consider whether deterrence is the main objective for punishment. Among the conflicting theories for punish­ment modern criminologists are highlighting the reformative effect on the punished criminal as the most germane aspect. Jereme Bentham who propounded the theory of deterrence is now considered as apostle of a conservative old school of thought. Retributive theory of punishment has waned into a relic of the primitivity because civilised society has realised that retribution cannot solve the problem of escalating criminal offences. Crime is now considered to be a problem of social hygiene. That modern diagnosis made by criminologists is now causing a sea change to the whole approach towards crime and punishment. The emphasis involved in punishment has now been transposed from retribu­tion to cure and reform so that the original man, who was mentally healthy, can be recreated from the ailing criminal. (Para 27)

       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. (Para 30)

       Reformation should hence be the dominant objective of a punishment and during incarceration every effort should be made to recreate the good man out of a convicted prisoner. As assurance to him that his hard labour would eventually snowball into a handsome saving for his own rehabilitation would help him to get stripped of the moroseness and desperation in his mind while toiling with the rigorous of hard labour during the period of his jail life. Thus, reformation and rehabilitation of a prisoner are of great public policy. Hence they serve a public purpose. (Para 31)

       Reformative approach is now very much intertwined with rehabilita­tive aspect to a convicted prisoner. It is hence reasonable conclusion from the above discussion that a directive from the court under the authority of law to subject a convicted person (who was sentenced to rigorous imprisonment) to compulsory manual labour gets legal protec­tion under the exemption provided in Clause (2) of Article 23 of the Constitution because it serves a public purpose. (Para 32)

       Like any other workman prisoner is also entitled to wages for his work. The question is what is the rate at which the prisoner should be paid for this work. (Para 36)

       It is true that State Government has the obligation to bear the expenses needed for providing food and clothes and other amenities to every prisoner, whether his detention is during post conviction period or pre-conviction period as under-trial prisoner or has been preven­tively detained or is interned as a consequence of defaulting payment of fine imposed as punishment. If that is the only angle through which this question has to be looked at there is, perhaps, a point to casti­gate deduction of the amount spent on food and clothes of a prisoner from the minimum wages rate. But the issue has to be looked at from three other angles also. (Para 39)

       First is this, if wages at the rates fixed under MW Act are paid to a prisoner without making any such deduction its net effect would be that he gets wages apparently more than the emoluments of a workman who does the same type of work outside the jail. This is because the latter has to meet his expenses for food and clothes from the minimum wages paid to him. Second angle is, the Government which has to pay wages to the prisoner has the additional liability to supply clothes and food to him because government has the duty, willy nilly, to keep a convicted person in prison during such term as the Court sentences 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. The 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 Government to permit them to deduct the expenses in­curred for food and clothes of the prisoners from the minimum wages rates is a reasonable request. There is nothing uncivilised nor unso­ciable in it. But Government cannot deduct any substantial portion from the wages on that account. The government can arrive at the reasonable percentage to be deducted from Minimum Wages taking into account the average amount which the government is spending per pris­oner for providing food, clothes and other amenities to him. (Paras 40 to 43)

       We wish to say something more in this connection. We are told that the practice followed in many States, either by virtue of the jail rules or by convention, is that a portion of the money earned by the prisoner is sent to the dependants of the prisoner himself and the balance, after deducting the amount expended by him for his extra expenses, is preserved to be disbursed to him at the time of his release. One area which is totally overlooked in the above practice is the plight of the victims. It is a recent trend in sentencing policy to listen to the wailings of the victims. Rehabilitation of the prisoner need not be by closing the eyes towards the suffering victims of the offence. A glimpse at the field of victimology reveals two types of victims. First type consists of direct victims i.e. those who are alive and suffering on account of the harm inflicted by the prisoner while committing the crime. Second type com­prises of indirect victims who are depen­dants of the direct victims of crimes who undergo suffer­ings due to deprivation of their breadwinner. (Paras 44 & 45)

       Section 357 of the Criminal Procedure Code, 1973 provides some reliefs to the victims as the court is empowered to direct payment of compensation to any person for any loss or injury caused by the of­fence. But it practice the said provision has not proved to be of much effectiveness. Many persons who are sentenced to long term imprison­ment do not pay the compensation and instead they choose to continue in jail in default thereof. It is only when fine alone is the sentence that the convicts invariably choose to remit the fine. But those are cases in which the harm inflicted on the victims would have been far less serious. Thus the restorative and reparative theories are not translated into real benefits to the victims. It is a constructive thinking for the State to make appropriate law for diverting some portion of the income earned by the prisoner when he is in jail to be paid to deserving victims. In the absence of any law for that purpose we are prevented from issuing a direction to set apart any portion of the prisoner’s earned wages for payment to the victims because of the interdict contained in Article 300A of the Constitution. Hence we suggest that the State concerned may bring about a legislation for that purpose.

       The above discussion leads to the following conclusions:

        (1) It is lawful to employ the prisoners sentenced to rigorous imprisonment to do hard labour whether he consents to do it or not.

        (2) It is open to the jail officials to permit other prisoners also to do any work which they choose to do provided such prisoners make a request for that purpose.

        (3) It is imperative that the prisoner should be paid equitable wages for the work done by them. In order to determine the quantum of equitable wages payable to prisoners the State concerned shall consti­tute a wage fixation body for making recommendations We direct each State to do so as early as possible.

        (4) Until the State Government takes any decision on such recom­mendations every prisoner must be paid wages for the work done by him at such rates or revised rates as the Government concerned fixes in the light of the observations made above. For this purpose we direct all the State Governments to fix the rate of such interim wages within six weeks from today and report of this Court of compliance of this direction.

        (5) We recommend to the State concerned to make law for setting apart a portion of the wages earned by the prisoners to be paid as compensation to deserving victims of the offence the commission of which entailed the sentence of imprisonment to the prisoner, either directly or through a common fund to be created for this purpose or in any other feasible mode.

       (Paras 47 & 48)