The main objective of India’s penal policy is reform and rehabilitation. Providing prisoners with opportunities to work, and earn, helps in realizing this policy. It empowers prisoners to manage their daily expenses, save for their rehabilitation, even send money to their family, and overall become a responsible citizen. But when the Calcutta High Court in June 2020 ruled that prison authorities are not bound to pay the minimum wage rate to prisoners, it acted as a reminder about the sordid reality of prisoners’ rights and penal policy in India. One couldn’t fault the High Court since it was only following the mandate decided by the Supreme Court of India in State of Gujarat and Anr. v. Hon’ble High Court of Gujarat (1998). In India, despite the penal policy, the prisoners can be forced to work as punishment, in addition to suffering imprisonment as per the existing law. In return, they receive scanty wages which are arbitrarily decided by their state governments. Through this article, the attempt is to highlight how the Supreme Court’s ruling on minimum wage rate along with the permission to make deductions towards prison expenses and victim compensation funds, allows the state governments to shirk off their responsibilities onto the prisoners, resulting in the violation of prisoners’ fundamental rights. Such a ruling also diffuses the penal policy of reform and rehabilitation, and sets a very harsh burden on prisoners’ already meager wages.
The Legal Context of Prisoners’ Right to Wages
The free Indian citizen since independence has been guaranteed a life of dignity as a right with the promise of minimum wage rate for their work and protection from forced labour guaranteed under Article 23 of the Constitution. However, the country’s independence did not have much effect on the rights of its prisoners. Forced labour was unconstitutional, but section 53 of the colonial Indian Penal Code allowing hard labour during imprisonment (rigorous imprisonment) continued to remain law. And no policy was framed towards prisoners’ right to wages. Over the years, an arbitrary system of payment of wages started. Some states paid a fixed percentage of the market rate for comparable work and some paid an amount only as gratuity.
In Mohammad Giasuddin v. State of Andhra Pradesh (1977), the Supreme Court directed the state government to assign “congenial work” to the prisoner and pay wages. For the first time it was acknowledged that prisoner’s “unpaid work is bonded labour and humiliating”. Thereafter, the High Courts of Kerala, Gujarat [Cri. Ref. No. 2 of 1984], Andhra Pradesh and Himachal Pradesh, between 1983 and 1991, also ruled that extraction of free labour from prisoners, even those serving rigorous imprisonment, was unconstitutional and that the states must raise the rates of the wages to a reasonable amount in line with the minimum wage law to meet the objective of reform and rehabilitation of the prisoner. The statute of punishment allows imprisonment with “hard labour”. Nowhere, is it stated that it would be free labour. With the Constitution banning forced labour, the least that the state can do is to pay at minimum wage rate for the forced labour. But, the Supreme Court overturned all these rulings.
The judgment of the Supreme Court in State of Gujarat and Anr. v. Hon’ble High Court of Gujarat (1998) ruled that rigorous imprisonment does not violate Article 23 of the Constitution and agreed with the state governments that if they pay at the minimum wage rate, they can deduct a portion from the prisoners’ wages towards the expense of the prison on their upkeep. Additionally, the judgment recommended states to set apart a portion of the wages as compensation to deserving victims. Nevertheless, the judgment reminded that the wages finally received by the prisoners should be reasonable so as to help in their rehabilitation in future.
With inbuilt contradictions and absence of mandatory application of minimum wage rates, wages for the prisoners have remained meager till today. As per Prison Statistics India, a majority of the states have been paying less than Rs. 100 a day as wages for unskilled prisoners for the year 2019; while the benchmark of Rs. 100 as minimum wages was crossed in the country many years ago. The Report notes that 13 states pay even less than Rs. 50. If the aim is to reform through work opportunities, then how do we expect the prisoner to feel motivated with such a little amount of wage? Is it possible to support their family and also save up for their rehabilitation from such low wages?
The Illegality of Deductions
When the Supreme Court allows states to deduct expenses, it means that prisoners are paying for their own imprisonment which actually is in violation of their rights. When a person is in the custody of the state, it becomes the state’s responsibility to ensure basic facilities for the person. In a number of judgments, it has been clarified by the Supreme Court, that prisoners do not lose entitlement to their fundamental rights (DBM Patnaik v. State of Andhra Pradesh, Sunil Batra v. Delhi Administration, State of Andhra Pradesh v. Challa Ramkrishna Reddy, State of Maharashtra v. Prabhakar Pandurang Sanzgir and Charles Sobaraj v. Supdt Central Jail Tihar). Ensuring the prisoner’s life of dignity under Article 21, by providing facilities of nutritious food, clothing, shelter, engagement through reading, writing and other expressive forms, comingling with fellow prisoners and so on (Francis Coralie Mullin v. Delhi Administration), is the responsibility of the state. A full bench of the Gujarat High Court in Jail Reforms Committee v State of Gujarat characterised extraction of money from prisoners for food and clothing of bare subsistence and not of good quality or of prisoner’s choice, as uncivilized.
When it is the state’s responsibility to ensure sustenance of all prisoners, then there remains no legal basis to charge money from some of the prisoners. It amounts to unequal treatment. Being confined in prison, the prisoners are dependent upon the state government for their sustenance. To protect their right to life, the state can’t deny basic facilities to any of them. Therefore, charging costs to some qualifies as a discriminatory and violates the prisoners’ rights under Article 14 of the Constitution.
The Apex Court did not discuss violation of these fundamental rights of the prisoners. It bluntly equated a prisoner’s life with that of a free person. The court asks when a free person has to pay for his living expenses, then why can’t a prisoner do the same. Such a comparison only undermines the value of free life. This judgment itself has acknowledged that an average individual abhors incarceration in jails, whatever comfort and monetary benefit it may provide to them. Secondly, such a comparison overlooks that a prisoner does not have a choice at the quantity or quality of the food and clothing supplied to him. But a free person can spend wages as per his wishes. Additionally, most prisoners do spend a portion of their wages to buy other essential items from the prison canteen. It is a public secret that prison canteens sell such items usually at higher rates than the MRP. It was also ignored that a portion of prisoner’s wage is sent to their dependents too. Prisoners often want to work, so that they can support their family. The loss which prisoners bear because of their imprisonment – the legal expenses, loss of job and education, loss of prospects at prosperity, precarious situation of the dependent family and so on – was also not accounted for. Neither was the cost involved in the process of reintegration of the prisoner into the society. Hence, there is a multiplicity of expenses which the prisoner necessarily bears due to his imprisonment. These should be taken into account when deciding apportionment of wages.
The court also misleads by referring to taxpayers’ money being spent on prisoners. Taxpayers expect to reap benefits through efficient and fair functioning of criminal justice systems. They expect that institutions like prisons will firstly protect them from offenders and then function in a way that when the prisoners are released back into the society, they can live as responsible citizens. But even after receiving the tax money, if the intention of the government is to make money out of an imprisoned person’s meager wages too then it is running away from responsibility and letting the prisoner as well as its free citizens down. The judgment also compares state to an employer, since as per the minimum wage law the employers are allowed to make deductions for housing and other facilities provided by them to the employees. Such a comparison in the judgment shows that it did not comprehend the import of a reform and rehabilitation based penal policy. Prison authorities are custodians who have imprisoned a population as punishment. They are not employers. While providing work opportunities to prisoners is surely their role, the aim to achieve profit or ends of the work can’t be priortised over promotion of training, empowerment through wages, rehabilitation and reintegration of the prisoners, in line with the penal policy.
Deduction for Victims’ Compensation Fund Is Against Penal Policy
The 1998 judgment also argued for a contribution towards victim support fund. The Hon’ble Court very appropriately articulated the plight of victims in India and even 23 years since the judgment, our criminal justice system has still not been able to build a victim sensitive system. But when the problem is government’s ineffectiveness, the mandatory deductions from wages of prisoners is simply allowing it to pass the buck.
The ruling says that the prison authority will decide the amount to be disbursed to a ‘deserving’ victim. How will the prison authority decide who is a deserving victim and can a victim be less deserving? Is the prison authority, trained for the upkeep of prisoners, the right authority to also take the burden of engaging with victims? Assuming that the prison authority is able to disburse compensation from the fund efficiently, can the day to day deductions from prisoners’ paltry wages be enough to sufficiently and timely provide support to victims? In a PIL filed in the Delhi High Court [W.P.(C) 1952/2018], it was revealed that of the Rs 15 crore collected for victim compensation fund more than Rs 14 crore lay unutilised. The Court was also informed that the Delhi State Legal Services Authority has opposed such a deduction from prisoners’ wages and considered it “not reasonable or justified” as the Delhi government had already created a scheme for victims under section 357A of Criminal Procedure Code. The Legal Services Authority believed that no purpose would be served by maintaining a separate victim welfare fund with the jails.
More fundamentally such a deduction goes against the nature of the prevailing criminal justice system. Crimes are considered against society rather than an individual. The burden of initiating criminal proceedings against the accused is borne by the State, not the victim. The State takes the responsibility to punish and reform the convict. On the other hand, it provides support to the victim. The aim of such a system is to conduct these two separate processes without letting it become an exercise in revenge. In such a system, the prisoners are given wages for their work to prevent violations of Article 23 of the Constitution of India and to augment the aims of reformation and rehabilitation. Linking victims’ compensation to prisoners’ wages contradicts the aims and approaches of the prevailing system. It infringes upon the process adopted for treatment of the prisoners as well as dilutes the responsibility of the State, which has all the resources and institutions at its disposal to adequately provide support to the victims.
But the SC judgment considers deductions towards victims fund a ‘constructive thinking’ which provides benefits of restorative and reparative theories to victims. It may be very tempting, but one shouldn’t overlook that restorative and reparative theories are designed to impart justice through an altogether different system. One of the fundamental principles of these systems is the voluntary participation of the accused and victim which itself contradicts the mandatory deductions from prisoners’ wages.
Minimum Wages for Prisoners is in Line with Prison Policy of Reformation and Rehabilitation
Though the SC judgment, with direction to pay reasonable wages without necessity of minimum wage rate, had approval of all three judges of the bench, but their reasoning differed. This further confirms that this judicial intervention was conducted without any clarity on the penal policy of our justice system.
Justice Thomas finds that the punishment of rigorous imprisonment qualifies the exception to Article 23. It serves the “public purpose” of reformation and rehabilitation of the prisoner. The judgment states that, “An assurance to him (the prisoner) that his hard labour would eventually snowball into a handsome saving for his own rehabilitation would help him to get stripped of the moroseness and desperation in his mind while toiling with the rigors of hard labor during the period of his jail life.” In that light, it is clarified that ‘paying a pittance’ or even an amount ‘little more than a nominal sum’ is equal to paying nothing. J Thomas’s opinion reminds that minimum wage rate should be sufficient to cover bare physical needs of the worker and his family including education, medical needs and amenities adequate for preservation of their efficiency. And yet, the opinion shies away from affirming the application of minimum wage rates for prisoners.
Justice Wadhwa on the other hand considered punishment of hard labour beyond the purview of Article 23. It was believed that prohibition of forced labour is applicable only to ‘social practices’ and not to the government. This is a very narrow reading of a fundamental right. Fundamental rights as part of the constitution cannot be violated by anyone including the government. The judgment also incorrectly relies on Dr. Ambedkar’s statement which was actually made in the context of a free citizen. Finally, Justice Wadhwa bluntly cautions that if prison becomes a place to earn good wages, the purpose of punishment would be lost and a message will be sent to society that crime pays. This interpretation undermines the value of free life and does not take into account the extent of suffering a person undergoes during imprisonment. Such a statement is also against the penal policy which considers prison as a place to reform prisoners.
The Model Prison Manual declares reformation as the ultimate objective of imprisonment and recognizes prisoners’ right to meaningful and gainful employment, and wages for the work done.
“Payment of fair wages and other incentives shall be associated with work programmes to encourage inmate participation in such programmes. The incentives of leave, remission and premature release to convicts shall also be utilized for improvement of their behaviour, strengthening of family ties and their early return to society.”
Work in prison was never meant merely as part of the punishment. Even the earlier prison manuals, like the Assam Jail Manual of 1934 directs the prison authorities to factor prisoner’s health, intelligence and abilities to assign a ‘fair’ task. Newer prison manuals like the Delhi Prison Manual 2018 further clarify that prisoners should be given training in multiple skills so that they are able to compete with the conditions in the labour market outside the prisons. It also states that purposeless and non-productive forms of labour should be avoided. In the process of reformation, wages become an important tool to give a sense of dignified life to the prisoner and empower them. When prison manuals have sustained such clarity on the objective of prisoners’ work and utilization of their wages, the judicial directions as given in the 1998 SC judgment only distracts from the objective. In the past seven decades, since our country’s independence, the judiciary has not been able to bring in sync the issue of prisoners’ wages with the ban on forced labour and the promise of the law to provide minimum wages to all. The judiciary’s intervention and government’s zealous compliance reveals their over ambitious nature wanting to keep up with the developments in the field of criminal justice through short cut methods without giving a thought to the resulting injustice to prisoners and more importantly to its own penal of policy of reform and rehabilitation. The small and broken boat of meager wages of the prisoner, therefore, should not be forced to carry the burden of meeting the requirements of the prisoner, their family, the State and victims.
Baljeet Kaur is a Mitigation Associate at Project 39A.