Categories of Prisoners and their labour burden
There are principally two categories:
- under-trial prisoners and
- 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.
Jail authorities are enjoined by law to impose hard labour on a particular section of the convicted prisoners who were sentenced to rigorous imprisonment.
Rigorous Imprisonment and Simple Imprisonment
Section 53 of the Indian Penal Code which falls under the Chapter entitled “Of Punishments” vivisects punishments into five categories, of which the category “imprisonment” has been further sub divided into two sub categories as “rigorous” and “simple”. Rigorous imprisonment is explained as “imprisonment with hard labour”.
Section 60 of the Indian Penal Code confers power on a sentencing court of direct that “such imprisonment shall be wholly rigorous or that such imprisonment shall be wholly simple, or that any part of such imprisonment shall be rigorous and the rest simple”, or that any part of such imprisonment shall be rigorous and the rest simple”. The sentence of “imprisonment for life” tagged along with a number of offences delineated in the Indian Penal Code is interpreted as “rigorous imprisonment for life” and not simple imprisonment. (Vide the decisions of Constitution Bench in G.V. Godse Vs. State – AIR 1961 SC 600, and Naib Singh Vs. State of Punjab – AIR 1983 SC 855).
A person sentenced to simple imprisonment cannot be required to work unless he volunteers himself to do the work. Section 374 of the IPC makes imposition of work on an unwilling person as an offence. The section reads thus:
“Whoever unlawfully compels any person to labour against the will of that person shall be punished with imprisonment of either descriptions, for a term which may extend to one year or with fine or with both.”
But the jail officer who requires a prisoner sentenced to rigorous imprisonment to do hard labour would be doing so as enjoined by law and mandated by the court. No. prisoner sentenced to rigorous imprisonment can conceivably complain that the jail authorities committed the offence under Section 374 of IPC by compelling him to do work during the term of his imprisonment.
So the task to do labour can be imposed on a prisoner only if he has been sentenced to rigorous imprisonment. Neither the under-trial internees nor the detainees with simple imprisonment non even detenus who are kept in jails as preventive measures can be asked to do manual work during their prison term. It is a different matter that he is allowed to do it at his request.
Two profiles emerge from the above discussion.
- First is a vast majority of prisoners are not concerned about the wages for the labour in jails. It is only for a small section of the detainees that this exercise would benefit.
- 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.
State of Gujrat v. Honourable High Court of Gujrat case (1998)
In this case, question came before the court 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.
While considering the issue, the court said,
The reality is that even those inside the jails, by and large, are looking forward to the day of their release so as to get their personal freedom restored so that they can move about freely in society, live with their beloveds and to enjoy the free atmosphere of life. Most of them are in certitude of the precise number of months, weeks and days they had already spent in jails as well as the number of days they secured by way of remissions and also the remaining period they have to continue in jails before attaining the cherished exit from the iron gates of the bastions.
Learned Chief Justice P. Subramanion Poti, speaking for the Division Bench of the Kerala High Court, in the decision cited above (1983 Kerala Law Times 512) has frescoed a picture of reality that
“Many accelerate their release by purchasing remission parting with the few paise that they earn by way of wages and by donating blood in the hope that this process takes them nearer to the day when they can be back in the affectionate atmosphere at home. The most deterrent factor in imprisonment is really the fact of curtailment of personal freedom. It may not be necessary to make it harsh and inhuman in order to render the sentence of imprisonment a deterrent.”
Article 23 of the Constitution prohibits “forced Labour” and mandated that any contravention of such prohibition shall be an offence punishable in accordance with law.
Learned Judges in People’s Union for Democratic Rights have observed that forced labour may arise in several ways, it may be physical fore, 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 adept one particular course of action may properly be regarded as force.
The Bench observed thus: “We are, therefore, of the view that where a person provided labour or service to another or remuneration which is less than minimum wage, the labour or service provided by him clearly falls within the scope and ambit of the words “forced labour” under Article 23.” We are in respectful agreement with the aforesaid view.
Would the Constitution-makers have thought that imposition of hard labour on the convicted prisoners is not included within the concept of “forced labour” envisaged in Article 23? In many other Republican Constitutions protection against forced labour is subjected to the exception that hard labour imposed on convicted persons would not be “forced labour.”
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. An 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 rigours 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. 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.
The wages for the work of Prisoners
The court next considered the question- what is the rate at which the prisoner should be paid for their work?
The court said,
We have no doubt that paying 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. While considering the quantum of wages payable to the prisoners we are persuaded to take into account the contemporary legislative exercises on wages. Minimum wages law has now come to stay.
This Court has held that minimum wage which is sufficient to meet the bare physical needs of a workman and his family irrespective of the paying capacity of the industry must be somethings more than subsistence wage which may be sufficient to cover the bare physical needs of the worker and its family including education, medical needs, amenities adequate for preservation is his efficiency. (Express Newspapers Ltd.,Vs. Union of India, 1959 SCR 12).
Feeding of a prisoner is a responsibility of those who keep the prisoner in custody irrespective of any return from him. It is so not only human beings, but even animals. When they are not allowed to be free they have to be fed. It will be uncivilised, if not cruel, to extract from such prisoners the return for the food and clothing supplied to them not food and clothing of their choice, not food and clothing of excellence, but only a bare subsistence which any authority that keeps another in custody and retain must necessarily meet as a compulsory obligation. If the prisoners’ wages is appropriated for the food naturally the prisoner must have a choice of saying no and making his own choice of the food. That cannot be the case.
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.
- First is this, if wages at the rates fixed under Minimum Wages Act are paid to a prisoner without making any such deduction its not 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:
- deductions for house accommodation supplied by the employer
- 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 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 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.
Conclusion
The above discussion leads to the following conclusions:
- It is lawful to employ the prisoners sentenced to rigorous imprisonment to do hard labour whether he consents to do it or not.
- 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.
- 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.
- 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.
- 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.
Reference
State of Gujrat v. Honorable High Court of Gujrat (1998)