of Gujarat & Anr Vs. Hon'ble High Court of
Gujarat  INSC 487 (24 September 1998)
Wadhwa, J. D.P.Wadhwa, J.
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.
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.
is yet another decision in string of decisions of this Court dealing with
prison reforms and prison 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.
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 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
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.
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 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
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 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
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,
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
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.
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 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.
also note two decisions one of Himachal Pradesh High Court and the other of the
Andhra Pradesh High 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.
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.
Pradesh High Court, however, took a different 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.
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 (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.
third case considered the right of payement, basti and slum dwellers of Bombay city on the touch one of Article 21
of the Constitution.
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 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.
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.
not necessary to detail various contentions raised by the State Governments to
justify their stand.
they say wages are given to the prisoner for the purpose of :
Offering incentive and stimulus for effect, work and industry;
prison work purposive and meaningful;
a sense of self-responsibility and self respect amongst the inmates;
prisoners to purchase their sundry daily extra requirements from the prison
inmates to effect saving for their post release rehabilitation and also for
extending economic help to their families.
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.
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.
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.
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.
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.
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
wage fixation body be created to fix the equitable recompense of prisoners.
body may be created to determine the districution of equitable recompense
between sums for dependents and sums for future use, and invested accordingly.
grievance committee be established which will examine complaints in respect of
prisoners in respect of wages, wage determination, deductions and working
is consistent with the jurisprudence enunciated earlier that procedurl
provisions should strengthen substantive entitlements.
however, notice that lower wage for intimates 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.
the purposes of this Article the term forced or compulsory labour' shall not
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.
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 exacted in case an emergency or calamity thre ning the life or well-being
of the community;
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.
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 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".
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 –
Provision for spending money.
Saving for release;
Aid to dependents;
Board and room or other institutional expenses; and
Indemnities and/or court fees.
Para 181 of the study on Prison Labour is
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
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.
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
rules also stated that:
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.
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 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:-
(1) Prison labour must not be of an afflictive nature.
All prisoners under sentence shall be required to work, subject to their
physical and mental fitness as determined by the medical officer.
Sufficient work of a useful nature shall be provided to keep prisoners actively
employed for a normal working day.
far as possible the work provided shall be such as will maintain or increase
the prisoners, ability to earn an honest living after release.
training in useful trades shall be provided for prisoners able to profit
thereby and especially for young prisoners.
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.
(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.
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.
(1) Preferably institutional industries and farms should be operated directly
by the administration and not by private contractors.
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.
(1) There shall be a system of equitable remuneration of the work of prisoners.
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.
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
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.
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.
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
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.
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.
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
(1) (a) Slavery.
in human beings.
form of forced labour knows as begar.
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.
Conscription for military service or training, or for any work in aid of
military operation, is hereby prohibited.
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
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.
child below the age of 14 years shall be engaged to work in any factory, mine
or any other hazardous employment.
: 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 :-
(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. In imposing such
service the State shall not make any discrimination on the ground of race, religion,
caste or class.
child below the age of fourteen years shall be employed to work in any factory
or mine or engaged in any other hazardous employment.
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.
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.
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.
this clause, it may be seen that non-payment of compensation could not be a
ground of attack; because 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.
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.
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 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 be getting
their full remuneration for the work they would be doing." This dictum was
approved by this Court in Union of India & Ors. [(1982) 3 SCC 235].
a great deal of reliance has been placed on the decision of this Court in
People's Union for Democratic 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.
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.
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
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.
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:
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.
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.
servitude, except as punishment for crime, is prohibited.
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.
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."
ON CIVIL & POLITICAL RIGHTS.
Art. 8 of the Covenant on civil and political rights, 1966 says -- "1. No
one shall be held in slavery; slavery and the slave trade in all their forms
shall be prohibited.
No one shall be held in servitude." "3. (a) No one shall be required
to perfor forced or compulsory labour.
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;
For the purpose of this parapraph the term 'forced or compulsory labour' shall
not include :
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;
Any service of a military character and in countries where conscientious
objection is recognized, any national service required by law of conscientious
Any service exacted in cases of emergency or calamity threatening the life or
well being of the community;
Any work or service which forms part of normal civil obligations.
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.
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.
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.
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 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
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.
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.
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 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 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
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
have grave doubts about the expendiency of transplanting Western experience in
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:
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.
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.
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 experiment of abolition of capital
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.
consideration of all the issues involved, the Commission is of the opinion,
that capital punishment should be retained in the present state of the
stress in being laid these days on the rights of the victims or his family in
case of victim's death.
to Mr. Dhavan sums granted to prisoners are de minimus and cannot support a rehabilitativee
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.
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 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.
(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.
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 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.
I feel that observations of this Court are to be confined to a case where
accused has been sentenced to death.
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 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.
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.
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.
Law Dictionary defines "reparation" as "payment for an injury or
damage, redress for a wrong done.
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 may
seek reparation under the Act against violator; Payment made by one country to
another for damages during was".
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.
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.
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;
making of payments into the consolidated Fund with a view to contributing
towards the cost of the prisoner's upkeep;
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
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.
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.