P B VIJAYKUMAR Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) This is Writ Petition of the genre of public interest litigation. While studying Criminology as part of his third year B. L degree Course the petitioner one day on 16th February, 1985 visited the Central Jail at Visakapatnam. There he noticed the conditions of prisoners in the matter of their working for the prison authorities without getting almost any payment in return. He found the prison authorities extracting work from the prisoners under going rigorous imprisonment without paying wages at all or paying nominal wages. He concluded that the prisoners convicted of rigorous imprisonment are thus being exploited and are being subjected to forced labour. Moved by his humane heart which was grieved by the conditions of the prisoners, he filed this writ petition seeking relief of an appropriate writ from this Court under Article 226 of the Constitution compelling authorities to pay prisoners wages for their work.

(2.) I commend the public spirit and endeavour of the petitioner who has aot yet ceased to weep over others' sorrows and sufferings. The glow of his early thought did not decline in feeling's dull decay. His efforts in the interests of those locked up behind the high and not easily accessible walls and almost forgotten and uncared minority of our society is praiseworthy. I, therefore, entertain this Writ Petition overruling the traditional objection raised by the Advocate General to the maintainability of this Writ Petition on the ground that the petitioner is not an aggrieved person and, therefore, has no locus standi to maintain this Writ Petition. I add to say that in public Jaw unlike in private law many more are welcomed and accepted as aggrieved persons.

(3.) The Petitioner's case is that extraction of work by the State from the prisoners convicted of rigorous imprisonment without paying for such work is contrary to the mandate of Article 23 of the Constitution of India which has forbidden the practice of forced labour in our Republic. The petitioner argues that even those prisoners convicted to hard labour are entitled to be paid for the work done by them and extracted from them. He says non- payment to rigorous convicts amounts to State violating Article 23 of the Constitution. It needs no elaborate argument to show that the State canno t act contrary to or in violation of fundamental rights which are in essence so many limitations on the exercise of State power. It is an established position of the Constitution that State powers are a collection of legal powers and they cannot be exercised contrary to the Constitution. It is equally accepted that the prisoners too are entitled to the enjoyment of such of those fundamental rights enumerated in Part III of our Constitution provided the enjoyment of those rights is not inconsistent with their legal and physical condition of imprisonment to which they have been reduced by reason of their conviction. A prisoner may not enjoy, for example, the right to move throughout the territory of India but he may practise his religion while being a prisoner. The well known judgment of the Supreme Court in State of Maharastra vs. Panduranga Prabhakar 1 upheld the right of a prisoner to send his manuscript of a scientific book out of the Jail for publication. That judgment is based on the fact that firstly there is no law prohibiting a prisoner from publishing a book. Secondly nor such an activity is inconsistent with his detention. Payment of wages to a rigorous imprisoned convict is not forbidden either directly or indirectly by any law. Nor .such payment is inconsistent wfcb the legal condition of the convicted prisoner. Both can coexist. But the question is whether Article 23 of the Constitution can form the basis for the assertion that a prisoner has a right to be paid wages. (The word 'wages' is used not in scientific sense but in its common sense.) I find the answer to that question in the negative. Article 23 of the Constitution forbids trafficking in human beings and practice of begar and similar form of forced labour. The legal consequence of this constitutional injunction is that a human being should not be treated as a commodity or a chattel. Article 23 is a constitutional attempt to establish human dignity. Law cannot recognise or tolerate the institution of forced labour. The question it whether extraction of work without payment from the prisoners cas be called practice of forced labour within the meaning of Article 23 and caa be compared to trafficking in human beings and begar. I am not inclined to hold that extraction of work from prisoners convicted to hard labour by court can be regarded as a form of forced labour similar to trafficking in human beings and begar and condemn the institution of hard labour on that grouad. Judicial verdict imposes hard labour more as a punishment of the prisoner and less as a means of extraction of useful work from the prisoner. Our first Prime Minister who has spent so many years of his life in jail some of them with hard labour in his autobiography quotes a rule of U. P. Jail Manual to show this real purpose of imposition of rigorous imprisonment. The essence of rigorous imprisonment as established by our penal system is to condemn the prisoner to inconvenience and unpleasantness. Forced labour in Article 23 connotes employment of labour productively and not as punishment but without the consent of the labourer. If extracting prison work is held to be contrary to article 23 on the assumption that it is forced labour a major part of our prison punishment should immediately collapse. In that event, even payment of wages by the State to a prisoner compelled to render such work would not be able to save such an unconstitutional practice because payment of wages alone could not alter the forced character of the labour extracted from the prisoner. The element of compulsion that is present in forcible extraction of labour from the convicted prisoner could not be removed by the mere payment of wages. In fact, such payment cannot be called payment of wages. Wage system of capitalism is normally incompatible with the system of labour forcibly extracted. Such wage system is based on the, theoretical freedom of the worker to reject employment. To be a free labourer, the worker should have the choice either to engage himself in- the work offered or to refuse to engage himself in that particular work. Lord Atkin's famous dictum in Nokes vs. Doncaster Amalgamated Collieries Ltd. ((4940) A. C. 104) highlights this aspect of the contract of employment peculiar to capitalism. A prisoner undergoing rigorous imprisonment imposed by a competent ' judicial organ of the State is by definition denied such liberty under even under capitalism either to enter or not to enter a contract of employment. Accepting that extraction of work from prisoner amounts to extraction of forced labour leads to condemnation of the system of our rigorous imprisonment. It will collapse under the injunction of Article 23. It is not argued before me that the system of rigorous imprisonment is unconstitutional. Without rigorous imprisonment being held unconstitutional, the concept of forced labour in Article 23 cannot be held to apply to prison labour. Cruel and unusual punishment excepted, extraction f work as a part of punishment cannot, therefore, be objected to. It must therefore, be accepted that forced labour is different from labour extracted as punishment. It is for this reason that XIII amendment to the American Constitution excepts by way of abundant caution punishment imposed for crimes from the category of involuntary servitude and that even Article 8 of the covenant on human rights declares that any work required to be done in the ordinary course of prison routine by a person undergoing detention imposed by the lawful order of a court should not be considered as forced or compulsory labour. It is difficult to believe that Article 23 of the Constitution is designed to do away silently and stealthily with these well-known and well-established systems of punishment involved in imposition of rigorous imprisonment and recognised by the civilised world. Otherwise, a major part of our Indian Penal Code has to be declared invalid. There is not enough of textual or historical support either in the language of Article 23 of the Constitution or its antecedents to justify a holding that imposition of rigorous imprisonment is unconstitutional.