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PETITIONER: STATE OF GUJARAT AND ANOTHER

       Vs.

RESPONDENT: HON’BLE HIGH COURT OF GUJARAT

DATE OF JUDGMENT:       24/09/1998

BENCH: D.P. WADHWA, J.

ACT:

HEADNOTE:

JUDGMENT: CIVIL 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. 12223/84 JUDGMENT D.P.WADHWA, J. I  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. This  is yet another decision in string of decisions of  this  Court  dealing  with  prison  reforms  and  prison administration, last  one  being  Rama  Murthy Vs.  State of 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. State 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

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       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 Prison Rules. These 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. On the 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 court  in  People’s Union for Democratic Right and others Vs. 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 prisoners. This 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

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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 High Court. Judgment  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,  C.J. Aggrieved 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 expense. In  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. State 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

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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. We may also  note  two  decisions  one  of  Himachal Pradesh  High Court and the other of the Andhra Pradesh High Court. In Gurdev Singh  and  other  Vs.  State  of  Himachal 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. It is 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. Andhra Pradesh High Court, however, took a different view.  In Poola Bhaskara Vijayakumar Vs.   State  of  Andhra 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. Three 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 (1982 (3) SCC 235), Sanjit Roy Vs.  State of Rajasthan (1983 (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. The third case considered the right of payement,  basti  and slum  dwellers of Bombay city on the touch one of Article 21 of the Constitution. 1.Pleas 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

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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. In the 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. It  is  not  necessary to detail various contentions raised by the State  Governments  to  justify  their  stand. Broadly,  they  say  wages are given to the prisoner for the purpose of : 1.(a) Offering incentive and stimulus for effect, work and industry;         (b)   making prison work purposive and meaningful;         (c)   developing a sense of self-responsibility and         self respect amongst the inmates;         (d)   enabling prisoners to purchase their sundry         daily extra requirements from the prison canteen;

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       and         (e) helping inmates to effect saving for their post         release rehabilitation and also for extending         economic help to their families.         (f)   payment 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. We  are  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. II.        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.      Basing  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.         While 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.         Units 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         (a)  a wage fixation body be created to fix the         equitable recompense of prisoners.         (b)   a body may be created to determine the         districution of equitable recompense between sums for         dependents and sums for future use, and invested         accordingly.

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       (c)   a grievance committee be established which will         examine complaints in respect of prisoners in respect         of wages, wage determination, deductions and working         conditions. This is consistent with the jurisprudence enunciated  earlier that   procedurl  provisions  should  strengthen  substantive entitlements. I may, however, notice that lower wage for inmates 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. 3.For  the  purposes of this Article the term forced or compulsory labour’ shall not include :         (a)  any 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.         (b)   any 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;         (c)   any service exacted in case an emergency or         calamity thre    ning the life or well-being of the         community;         (d)   any 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.        In  the  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

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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". In the 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 - (a)    Provision for spending money. (b)    Saving for release; (c)    Aid to dependents; (d)    Board and room or other institutional expenses; and (e)    Indemnities and/or court fees. Para 181 of the study on Prison Labour is a under:-         "181.  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

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       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. After  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 the prisoners (1) proper accommodation, (2) medical  facilities, (3)  clothing  and  bedding, (4) books etc. These rules also stated that:         "58.  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.         59.   To 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 prisoners.         65.      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:-         "71.   (1)      Prison  labour  must  not  be  of  an         afflictive nature.         (2)    All prisoners under sentence shall be required         to work, subject to their physical and mental fitness         as determined by the medical officer.         (3)    Sufficient  work  of  a useful nature shall be         provided to keep prisoners actively  employed  for  a         normal working day.         (4)     So far as possible the work provided shall be         such as will  maintain  or  increase  the  prisoners,         ability to earn an honest living after release.         (5)Vocational training in useful trades shall be         provided  for  prisoners  able  to profit thereby and         especially for young prisoners.         (6)     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.         72.   (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.

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       (2)   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.         73.   (1)     Preferably institutional industries and         farms   should   be   operated   directly   by    the         administration and not by private contractors.         (2)    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.         76.   (1)   There shall  be  a  system  of  equitable         remuneration of the work of prisoners.         (2)    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.         (3)   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 revision. It  is  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. Since 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. III     The 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 under:-      "4.   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.

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Chapter   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. IV.   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 follows:- "15.   (1)  (a)  Slavery.         (b)  traffic in human beings.         (c)  the form of forced labour knows as begar.         (d)    any 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.         (2)   Conscription for military service or training,         or for any work in aid  of  military  operation,  is         hereby prohibited.         (3)   No 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 as follows:-         11.   (a)   Traffic in human beings and         (b)   forced labour in any form including begar, and         involuntary  servitude  except  as  a punishment for         crime  whereof  the  party  shall  have  been   duly         convicted,         are  hereby prohibited and any contravention of this         prohibition shall be an offence.         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.         12.    No  child  below the age of 14 years shall be         engaged to work in any factory, mine  or  any  other         hazardous employment.         Explanation :      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 :-         "17.   (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

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       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.         18.   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. Now,  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.          With  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.          With  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.     In  this clause, it may be seen that non-payment     of compensation could not be a ground of attack; because

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   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.     (2)   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.     24.    prohibition  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 Vasudevan & Ors.  Vs.    S.D.   Mital & Ors.  [AIR 1962 Bom. 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

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be getting their full remuneration for the work  they  would be  doing."  This  dictum  was  approved  by  this  Court in the case of People’s Union for Democratic Rights & Ors.  Vs. Union of India & Ors. [(1982) 3 SCC 235]. Since  a  great  deal  of  reliance  has  been placed on the decision of this Court  in  People’s  Union  for  Democratic Rights & Ors.   Vs.    Union  of India & Ors.  [(1982) 3 SCC 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. But  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. It 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

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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.     If  we  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:       "Mr. 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. U.S.A.    "(1)  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. Involuntary  servitude,  except  as  punishment for crime, is prohibited. WEST GERMANY       2.   No 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. 3.     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." COVENANT ON CIVIL & POLITICAL RIGHTS. (B)    Art.  8 of the Covenant on civil and political rights,

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1966 says  -- "1. No one shall be held  in  slavery;  slavery and the slave trade in all their forms shall be prohibited.         "2. No one shall be held in servitude."         "3.   (a)  No one shall be required to perfor forced         or compulsory labour.         (b)   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;         (c)  For the purpose  of  this  parapraph  the  term         ’forced or compulsory labour’ shall not include :         (i)    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;         (ii)   Any  service  of  a military character and in         countries   where   conscientious    objection    is         recognized,  any national service required by law of         conscientious objections;         (iii)   Any service exacted in cases of emergency or         calamity threatening the life or well being  of  the         community;         (iv)  Any work or service which forms part of normal         civil obligations.     We  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.    It was 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. Superfluous  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. This 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

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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  forced labour’.      To me 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.       Next 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. V.  Victimology     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 this court in the case of Jagmohan Singh Vs.  The  State  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

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       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  murderer.         Prevalence  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 the society.         14.    We have grave doubts about the expendiency of         transplanting Western  experience  in  our  country.         Social  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 :                    "The 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.                 It  is 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.                      Having    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

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               experiment   of   abolition    of    capital                 punishment.                      Arguments   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.                      On  a  consideration  of all the issues                 involved, the Commission is of the  opinion,                 that  capital  punishment should be retained                 in the present state of the country". Great stress in being laid these days on  the  rights of  the  victims  or  his  family  in case of victim’s death. According to Mr. Dhavan sums  granted  to  prisoners  are  de minimus  and  cannot  support  a rehabilitativee victimology. Reference 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. In  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 laid on victim impact evidence. In Payne  Vs  Tennessee  (III 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. In Palaniappa Gounder Vs.  State of  Tamil  Nadu  and others.   (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. This  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

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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. However  I  feel  that  observations  of this COurt are to be confined to a case where accused has been sentenced to death. In Sarwan Singh and others Vs. State of Punjab  (1978 (4)  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 Vs. State of Tamil Nadu and others (1977  (2)  SCC  634)  and 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. In Hari Singh Vs.  Sukhbir Singh and others (1988 (4) SCC 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. 50,000/-. In  our  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. Black’s  Law  Dictionary  defines   "reparation"   as "payment  for  an injury or damage, redress for a wrong done. Several  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

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may  seek  reparation under the Act against violator; Payment made by one country to another for damages during was". Reparation 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. In 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. This 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; (b)the  making  of  payments  into the consolidated Fund with  a  view  to  contributing  towards  the  cost  of   the prisoner’s upkeep; (c) 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 prescribed. The  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. To 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.