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Madhya Pradesh High Court · body

2007 DIGILAW 560 (MP)

S. P. Anand v. State of M. P.

2007-05-11

A.K.PATNAIK, J.K.MAHESHWARI

body2007
Judgement A. K. PATNAIK, C.J. :- This is a Public Interest Litigation filed by the petitioner complaining of violation of the fundamental rights of the prisoners lodged in the jails of Madhya Pradesh. 2. The petitioner has alleged in the writ petition that as against the capacity of the jails in Madhya Pradesh to accommodate 15,000 prisoners, there are more than 33,000 prisoners in the jails of Madhya Pradesh and this amounts to violation of fundamental rights of the prisoners and in particular their right to personal liberty and life under Article 21 of the Constitution. The petitioner has also alleged in the writ petition that convicts who have been lodged in the jail have to put in labour but they are being paid a sum of Rs. 1.00 per day which is much less than the minimum wages fixed under the Minimum Wages Act and this is being done in violation of Article 23 of the Constitution which prohibits beggar and other similar forms of forced labour. The petitioner has prayed that the respondents be directed to build up additional number of jails to accommodate the prisoners in the next ten years and to pay wages as prescribed under the Minimum Wages Act to the convicts. 3. A return has been filed on behalf of the respondents in which the respondents have admitted that there is overcrowding in jails in the State of Madhya Pradesh, but have stated that the State Government has initiated action for construction of new jails. In particular, the respondents have stated that sub-jails have been constructed in Indore /Ujjain circles at Khachrod, Sailana, Neemuch, Susner, Shujalpur, Agar, Bagli, Sonkutch, Dharampuri, Barawaha, Manawar, Maheshwar, Badhnaward, Kasrawal, Mhow, Depalpur, Sanwer and Jawad. In the return, the respondents have also stated that many more sub-jails have been constructed in other circles in the State. The respondents have also stated that the District Jail, Ujjain has been converted into a Central Jail and about 515 prisoners who were earlier lodged in the Central Jail, Indore have been shifted to the Central Jail, Ujjain. The respondents have also stated in the return that a Central Jail has also been constructed at Bhopal for accommodating 3000 prisoners with all facilities. The respondents have also stated in the return that a Central Jail has also been constructed at Bhopal for accommodating 3000 prisoners with all facilities. Regarding wages paid to the prisoners, the respondents have stated in the return that the Supreme Court delivered a judgment reported in State of Gujarat and another v. Hon'ble High Court of Gujarat, AIR 1998 SC 3164 in which guidelines were laid down for determining the wages of prisoners and the State Government constituted a Committee which determined in accordance with the guidelines laid down by the Supreme Court the wages to be paid to the prisoners as Rs. 8/- per half day for every unskilled prisoner and Rs. 10/- per half day for every skilled prisoner after deducting the amounts spent on the prisoners on food, clothes etc. and after deducting some amount for victims of the offences. 4. When the writ petition was taken up for hearing on 20-2-2007, the petitioner brought to our notice the provisions of Madhya Pradesh Prisons Rules, 1968 (for short 'the Rules') made under the Prisons Act, 1894 (for short 'the Act') and particular Rule 30 of the Rules which provided inter-alia that 41.80 square meters should be taken as standard meter space per prisoner and accordingly the Court passed orders on 20-2-2007 calling upon the Inspector General of Prisons, the respondent No.3, to indicate in a short affidavit the actual space per prisoner which is now available as compared to the required space 41.80 square meters per prisoner, as provided in Rule 30 of the Rules. On 20-2-2007, a query was also put by the Court to the learned Additional Advocate General why a half day's wage was being paid to the prisoners and the learned Additional Advocate General submitted that in the prisons where the prisoners are supposed to work, sufficient work is not available so as to absorb them for the entire day. On 20-2-2007, a query was also put by the Court to the learned Additional Advocate General why a half day's wage was being paid to the prisoners and the learned Additional Advocate General submitted that in the prisons where the prisoners are supposed to work, sufficient work is not available so as to absorb them for the entire day. The Court however found that in Rules 10, 11, 12 and 14 of the Rules elaborate provisions have been made for employment of convict labour for construction and repairs of jail buildings in execution of work by the Public Works Department and directed that an affidavit be filed by the respondent No.3 indicating therein the work that is entrusted to the prisoners in different jails in the State of Madhya Pradesh and in particular whether the convicts are employed in construction and repairs of jail buildings undertaken by the Public Works Department in accordance with the rules. 5. Pursuant to the said order dated 20-2-2007, the respondent No.3 filed an affidavit annexing thereto tables in Annexure R/1 and Annexure R/2 to show that presently the prisoners could not be provided with the required space of 41.80 square meters per prisoner as provided in Rule 30 of the Rules. Respondent No.3 however has stated that a number of jails have been constructed keeping in mind the number of prisoners lodged in various jails and the prospective increase in the number of prisoners and even some additional new barracks have been constructed to accommodate the prisoners with intent to provide them requisite space as per the rules. In the affidavit, the respondent No.3 has also stated that considering the number of prisoners lodged in different jails in the State of Madhya Pradesh, the work in the jails is insufficient and therefore prisoners cannot be kept engaged for the whole day in any work to be done by them. In the affidavit, the respondent No.3 has stated that when the jails or the barracks are being constructed by the Public Works Department, to the extent possible, prisoners suitable to carry out such a work are being employed but not all prisoners can be engaged in such work because of the risk of the prisoners' escaping from the jail. In the affidavit, the respondent No.3 has stated that when the jails or the barracks are being constructed by the Public Works Department, to the extent possible, prisoners suitable to carry out such a work are being employed but not all prisoners can be engaged in such work because of the risk of the prisoners' escaping from the jail. Along with the affidavit, respondent No.3 has also filed a table Annexure R/5 which shows the amount which has been deducted under Section 36A of the Act form the wages of the convicts. Respondent No.3 has stated in the affidavit that since substantial amount is available in the fund created under Section 36A of the Act, there is no impediment to release the amount to the prisoners as per the entitlement. 6. The petitioner appearing in person submitted that under Article 21 of the Constitution no person can be deprived of his personal liberty except according to procedure established by law and Article 14 of the Constitution provides that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. He submitted that a person who is convicted for an offence and is detained in prison continues to have fundamental rights under Articles 14 and 21 of the Constitution, though his fundamental rights are curtailed by law. He submitted that in Sunil Batra v. Delhi Administration and others, AIR 1978 SC 1675 , the Supreme Court has held that conviction for a crime does not reduce the person into a non-person whose rights are subject to the whim of the prison administration and that the personal liberty of such a person who has been convicted for a crime is only curtailed to a great extent by punitive detention. He further submitted that the word 'law' in the expression 'procedure prescribed by law' in Article 21 of the Constitution has been interpreted in Maneka Gandhi's case, AIR 1978 SC 597 to mean law which must be right, just and fair and not arbitrary, fanciful or oppressive. He referred to Rules 22 to 30 of the Rules to show the accommodation which has to be provided to the prisoners in the jails and submitted that unfortunately the accommodation as detailed in the Rules is not being provided to the prisoners in jails in Madhya Pradesh. 7. He referred to Rules 22 to 30 of the Rules to show the accommodation which has to be provided to the prisoners in the jails and submitted that unfortunately the accommodation as detailed in the Rules is not being provided to the prisoners in jails in Madhya Pradesh. 7. The petitioner next submitted that Clause (1) of Article 23 of the constitution prohibits beggar and other similar forms of forced labour and further provides that any contravention of the provision shall be an offence punishable in accordance with law and Clause (2) of Article 23 provides that nothing in the Article shall prevent the State from imposing compulsory service for public purposes. He submitted that in the case of State of Gujarat (supra), the question for consideration before the Supreme Court was whether it was lawful to employ a person sentenced to rigorous imprisonment to do hard labour whether he consents to do it or not in view of the provisions of Article 23 of the Constitution and the Supreme Court while answering the question in the affirmative held that it was however imperative that the prisoners should be paid equitable wages for the work done by them. He submitted that despite the judgment of the Supreme Court in the case of State of Gujarat and another v. Hon'ble High Court of Gujarat ( AIR 1998 SC 3164 ) (supra), the State Government continues to pay meager sums of Rs. 8/- per day and Rs. 10/- per day to an unskilled and a skilled prisoner respectively. He vehemently argued that such pittance paid to the prisoners for their daily labour constitutes breach of their fundamental rights under Articles 14, 21 and 23 of the Constitution. He vehemently argued that prisoners who put in hard labour in the prison should be paid as prescribed under the Minimum Wages Act. He vehemently argued that such pittance paid to the prisoners for their daily labour constitutes breach of their fundamental rights under Articles 14, 21 and 23 of the Constitution. He vehemently argued that prisoners who put in hard labour in the prison should be paid as prescribed under the Minimum Wages Act. He further argued that from such minimum wages the authorities can only deduct expenses towards food and clothing of the prisoners as has been held by the Supreme Court in State of Gujarat and another v. Hon'ble High Court of Gujarat (supra), but they cannot deduct expenses towards medical aid to the prisoners because medical aid from the State has been held by the Supreme Court in Permanand Katara v. Union of India, AIR 1989 SC 2039 and in Pashchim Banga Khet Mazdoor Samity and others v. State of West Bengal and another, (1996)4 SCC 37 : ( AIR 1996 SC 2426 ) as part of the right to life guaranteed to every person under Article 21 of the Constitution. 8. In reply, Mr. Ashok Kutumbale, learned Additional Advocate General relying on the reply and affidavit filed on behalf of the respondents submitted that the jails in the State of Madhya Pradesh are no doubt overcrowded but the State Government has already initiated action for construction of new jails and sub jails in different places in the State of Madhya Pradesh for providing accommodation as mentioned in the rules. He submitted that it will also be clear from the reply and the affidavit filed by the respondents that whenever a jail is found to be crowded the prisoners are being transferred from the crowded jails to jails which can accommodate them. He submitted that since the State Government is already conscious of the problem of overcrowding of the jails and has initiated steps for expanding capacity of jails for accommodating the prisoners, no directions need be issued to the State in this regard. 9. Regarding wages paid to the prisoners, Mr. Kutumbale argued that a prisoner cannot be equated with a person outside the jail and he works only for four hours in a day and therefore he is not entitled to get minimum wages fixed under the Minimum Wages Act. 9. Regarding wages paid to the prisoners, Mr. Kutumbale argued that a prisoner cannot be equated with a person outside the jail and he works only for four hours in a day and therefore he is not entitled to get minimum wages fixed under the Minimum Wages Act. He submitted that expenses towards clothes, food of the prisoner and other amenities provided to them also have to be deducted from their earnings as directed by the Supreme Court in case of State of Gujarat ( AIR 1998 SC 3164 ) (supra). He submitted that as per the judgment of the Supreme Court in the case of State of Gujarat (supra), some amount also had to be deducted from the wages for the victims. He submitted that taking all these factors into account, a Committee constituted by the State Government has determined the amount payable to an unskilled prisoner as Rs. 8/- per day and to a skilled prisoner as Rs. 10/- per day. Relying on the affidavit filed by the respondent No.3, he submitted that it is not feasible to employ the prisoners in all the works of the PWD department in the jails and that the work available in the jails is not enough to provide more than four hours employment everyday to the prisoners and therefore the amount of Rs. 8/- per day and Rs. 10/- per day for unskilled and skilled labour respectively is for the four hours work they actually do. 10. The first issue raised in this PIL is in relation to the inadequate accommodation in the jails of Madhya Pradesh resulting in overcrowding of the jails. Before we deal with this issue, we must be clear that a convict lodged in a jail is not denuded of all his fundamental rights and at the same time he does not enjoy all the fundamental rights like other persons because of the punitive detention in accordance with law. In Sunil Batra ( AIR 1978 SC 1675 ) (supra), D. A. Desai delivering the majority judgment on behalf of the Constitutional Bench observed: "It is no more open to debate that convicts are not wholly denuded of their fundamental rights. No iron curtain can be drawn between the prisoner and the Constitution. In Sunil Batra ( AIR 1978 SC 1675 ) (supra), D. A. Desai delivering the majority judgment on behalf of the Constitutional Bench observed: "It is no more open to debate that convicts are not wholly denuded of their fundamental rights. No iron curtain can be drawn between the prisoner and the Constitution. Prisoners are entitled to all constitutional rights unless their liberty has been constitutionally curtailed (see Procunier v. Martineg, (1974) 40 L Ed 2d 224 at P. 248). However, a prisoner's liberty is in the very nature of things circumscribed by the very fact of his confinement. His interest in the limited liberty left to him is then all the more substantial. Conviction for a crime does not reduce the person into a non person whose rights are subject to the whim of the prison administration and, therefore, the imposition of any major punishment within the prison system is conditional upon the observance of procedural safeguards (see Charles Wolff v. McDonnell, (1974)41 L ed 2d 935 at p. 973)." Hence a convict lodged in a jail must have reasonable accommodation to live a healthy life and enjoy his personal liberty to the extent permitted by law. 11. Section 59 of the Act provides that the State Government may make rules consistent with the Act inter alia for the classification of prisons, description and construction of wards, cells and other places of detention. Accordingly, as Rules 22, 29 and 30 have been made by the State Government prescribing the accommodation in the wards, barracks, cells and the jail buildings for the prisoners. These Rules are quoted hereinunder : "22. Capacity of wards.- In every sleeping wards a certain amount of superficial area, cubic space and lateral ventilation shall be allowed for each prison, and the minimum allowance is stated below :- Superficial area Metres Cubic space Metres Lateral ventilation Metres In barracks 10.972 152.400 3.048 In hospital 16.459 274.320 3.048 In cells 22.860 304.800 3.048 Over the door of every ward there shall be hung up on a board in the following form, a statement showing the details in regard to the accommodation:- No. Measurement Barracks Accommodation 1. Length. 6. Cubic space. 7. At. Sq. metre. 3. Height to bottom of beam 8. At cubic meters. 4. Lateral ventilation area. 9. At sq. meters Lateral ventilation. 5. Superficial area 10. Number of berths. 2. Breadth. 29. Length. 6. Cubic space. 7. At. Sq. metre. 3. Height to bottom of beam 8. At cubic meters. 4. Lateral ventilation area. 9. At sq. meters Lateral ventilation. 5. Superficial area 10. Number of berths. 2. Breadth. 29. Construction of according to standard plan.- Cells for a separate cellular, and judicial solitary confinement on the standard plan shall be provided in all jails. Each cell shall have a yard attached to it, where prisoner can have the benefit of fresh air without having the means of communication with any other prisoner. In the outer door of the ward attached to each cell an eyehole shall be made, so that the prisoner can be seen without seeing any one. Each cell shall be provided with the means of communication required by Section 22 of the Act. 30. Instructions to be followed in designing jail buildings.- In designing a jail building, the following instructions should be attended to :- (a) 41.806 square meters should be taken as the standard metre space per prisoner. The area within the inner, wall, only deducting that of buildings to which the prisoner are not ordinarily confined should be taken into account in calculating the amount per prisoner. (b) The minimum distance of any building inside the jail from the outer enclosure wall should be 4.8768 meters. (c) The minimum height of the circum-vallation wall round every jail should not be less than 4.5720 meters. (d) Distance between the battons on the tiled roof of jail barracks and generally in all buildings or any portions of buildings in which prisoners are ordinarily confined, should not be more than 0.1524 metres. (e) The District Magistrate should deal with applications for non-agricultural use of lands in the vicinity of jails having regard to the following principles :- (i) Government land within 201.1680 meters of the main jail wall should not be disposed of except on temporary agricultural lease and in the case of privately occupied lands similarly situated permission to build should not be granted when the Inspector General thinks it inadvisable. (ii) In cases in which permission to build is granted minimum restrictions for the security of the jail administration should be imposed in consultation with the Inspector General. (f) No public privies, dye works, sewage drains other, public nuisances should if possible be allowed near the prison." 12. (ii) In cases in which permission to build is granted minimum restrictions for the security of the jail administration should be imposed in consultation with the Inspector General. (f) No public privies, dye works, sewage drains other, public nuisances should if possible be allowed near the prison." 12. A reading of the rules quoted above would show that in every sleeping ward a certain amount of superficial area, cubic space and lateral ventilation must be allowed for each prison and the minimum allowances have been indicated in the chart below Rule 22. Rule 29 further provides that cells for separate cellular and judicial solitary confinement as per standard plan shall be provided in all jails and each cell shall have a yard attached to it where the prisoner can have the benefit of fresh air without having the means of communication with any other prisoner. Rule 30 contains the instructions to be followed in designing jail buildings and one of the instructions in Rule 30 is that 41.80 square meters should be taken as the standard meter space per prisoner. Other details regarding designing of jail building have also been mentioned in Rule 30. The respondent No.3 in his affidavit filed pursuant to order dated 20-2-2007, has stated that new jails at various places in the State are being made so that the instructions in Rule 30 of the Rules are followed. In para 6 of the affidavit, the respondent No.3 has fairly conceded that at the moment the prisoners cannot be provided with the space of 41.80 square meters per prisoner and in para 8 of the affidavit, the respondent No.3 has stated that the State Government has visualized this position and prisoners in the overcrowded jails are being transferred to other jails where they can be accommodated in a better manner. In para 9 of the affidavit, the respondent No.3 has stated that in the existing jails some additional new barracks have been constructed with a view to provide requisite space for the prisoners and in order to accelerate the construction work, the State Government in the Jail Department has already issued instructions to the Executive Engineers (PWD). In para 9 of the affidavit, the respondent No.3 has stated that in the existing jails some additional new barracks have been constructed with a view to provide requisite space for the prisoners and in order to accelerate the construction work, the State Government in the Jail Department has already issued instructions to the Executive Engineers (PWD). The State Government will have to continue with the construction and expansion of jails to discharge its obligation under Article 21 of the Constitution and under the Act and the Rules towards the prisoners lodged in the jails of Madhya Pradesh. 13. The second issue raised in this PIL relates to the meager wages paid to the prisoners detained in the jails of Madhya Pradesh. In the case of State of Gujarat (supra) cited by the petitioner, the question raised before the Supreme Court was whether imposition of hard labour on a prisoner sentenced to rigorous imprisonment was violative of Clause (1) of Article 23 of the constitution which prohibited beggar and other similar forms of forced labour. K. T. Thomas, J., in his judgment, was of the opinion that the imposition of forced labour on a prisoner being for a public purpose was saved by Clause (2) of Article 23 of the Constitution which provides that nothing in the Article shall prevent the State from imposing compulsory service for public purpose. D. P. Wadhwa, J., in his separate judgment, was of the opinion that since a prisoner is sentenced to undergo imprisonment with hard labour pursuant to orders of the Court in accordance with law, it does not amount to beggar or other similar form of forced labour and as such Article 23 of the Constitution is not attracted. Wadhwa, J. however agreed with the directions issued by Thomas, J. in the judgment. M. M. Punchhi, C. J., as he then was, also accorded approval to the directions issued by Thomas, J. There was therefore unanimity amongst the three Judges of the Supreme Court on the directions issued by Thomas, J. in His Lordship's judgment. Paragraph 51 of the judgment of Thomas, J. in the case of State of Gujarat ( AIR 1998 SC 3164 ) at page 3176 of the AIR contains the directions and is quoted hereinbelow : "51. Paragraph 51 of the judgment of Thomas, J. in the case of State of Gujarat ( AIR 1998 SC 3164 ) at page 3176 of the AIR contains the directions and is quoted hereinbelow : "51. The above discussion leads to the following conclusions : (1) It is lawful to employ the prisoners sentenced to rigorous imprisonment to do hard labour whether he consents to do it or not. (2) It is open to the jail officials to permit other prisoners also to do any work which they choose to do provided such prisoners make a request for that purpose. (3) It is imperative that the prisoner should be paid equitable wages payable to prisoners the State concerned shall constitute a wage fixation body for making recommendations. We direct each State to do so as early as possible. (4) Until the State Government takes any decision on such recommendations every prisoner must be paid wages for the work done by him at such rates or revised rates as the government concerned fixes in the light of the observations made above. For this purpose we direct all the State Governments to fix the rates of such interim wages within six weeks from today and report to this Court of compliance of this direction. 5. We recommend to the State concerned to make law for setting apart a portion of the wages earned by the prisoners to be paid as compensation to deserving victims of the offence the commission of which entailed the sentence of imprisonment to the prisoner, either directly or through a common fund to be created for this purpose or in any other feasible mode." 14. It will be clear from the directions of the Supreme Court in the case of State of Gujarat (supra) that a prisoner sentenced to rigorous imprisonment would be lawfully employed to do hard labour whether he consents to do it or not and it will be open for other prisoners to do any work but they could not be compelled to do hard labour without their consent. The Supreme Court further directed that the prisoners should be paid equitable wages for the work done by them and the State concerned shall constitute a Wage Fixation Body for determining the wages to be paid to the prisoners. The Supreme Court further directed that the prisoners should be paid equitable wages for the work done by them and the State concerned shall constitute a Wage Fixation Body for determining the wages to be paid to the prisoners. The Supreme Court further directed that until the State Government takes a decision on these recommendations, every prisoner must be paid for the work done by him at such rates or revised rates as the State Government concerned fixes in the light of the observations made in the judgment. The Supreme Court also recommended to the State Governments to make law for setting apart a portion of the wages earned by the prisoners to be paid as compensation to the deserving victims of offences the commission of which entailed the sentence of imprisonment to the prisoner either directly or through a common fund to be created for the purpose or any other feasible mode. 15. It appears from Annexure R/4 annexed to the reply of the respondents that pursuant to the directions of the Supreme Court in the order dated 29-9-1998 in the case of State of Gujarat ( AIR 1998 SC 3164 ) (supra), State Government constituted a Committee headed by the Additional Chief Secretary (GAD), Government of Madhya Pradesh and on the basis of the recommendations of the Committee made in its meeting held on 17-5-1999, the State Government by order dated 30-6-1999 revised the rates of wages of skilled prisoners engaged in jail industries work for half day per prisoner at Rs. 10/- and for unskilled prisoners engaged in jail services and industries work for half day per prisoner at Rs. 8/- and for prisoners engaged in agriculture work for six hours at Rs. 8/- per prisoner per day. These revised rates of wages were fixed by the State Government as interim wages in accordance with the direction in sub para (4) of para 51 of the judgment in the case of State of Gujarat (supra) quoted above until the State Government constituted a wage fixation body for making recommendations for payment of equitable wages for work done by prisoners. The State Legislature thereafter amended the Prisons Act, 1894 by the Prison (Madhya Pradesh Amendment) Act, 1999 so as to introduce a new Section 36-A in the Act. The State Legislature thereafter amended the Prisons Act, 1894 by the Prison (Madhya Pradesh Amendment) Act, 1999 so as to introduce a new Section 36-A in the Act. To give effect to his new provision in Section 36-A of the Act, the State Government in exercise of powers conferred by Section 59 of the Act has also amended the rules by notification dated 19th April, 2001. The statutory provisions in the Act and the Rules will have to be examined by us in the light of the judgment of the Supreme Court in the case of State of Gujarat (supra) for finding out whether the revised wages fixed by the Government by order dated 30-6-1999 continue to be legal or not and, if not, then what directions will have to be issued by the Court to the respondents in this regard. 16. Sections 35 and 36 of the Act as well as Section 36-A of the Act as introduced by the Prison (Madhya Pradesh Amendment) Act, 1999 are quoted hereinbelow : "35. Employment of criminal prisoners.- No criminal prisoner sentenced to labour or employed on labour at his own desire shall, except on an emergency with the sanction in writing of the Superintendent, be kept to labour for more than nine hours in any one day. (2) The Medical Officer shall from time to time examine the labouring prisoners while they are employed, and shall at least once in every fortnight cause to be recorded upon the history ticket of each prisoner employed on labour the weight of such prisoner at the time. (3) When the Medical Officer is of opinion that the health of any prisoner suffers from employment or any kind of class of labour, such prisoner shall not be employed on that labour but shall be placed on such other kind or class of labour as the Medical Officer may consider suited for him. 36. Employment of criminal prisoners sentenced to simple imprisonment.- Provision shall be made by the Superintendent for the employment (as long as they so desire) of all criminal prisoners sentenced to simple imprisonment, but no prisoner not sentenced to rigorous imprisonment shall be punished for neglect of work excepting by such alternation in the scale of diet as may be established by the rules of the prison in the case of neglect of work by such a prisoner. 36-A. The prisoners shall be paid wages for the employment provided to them at such rate as may be prescribed from time to time. The amount of fifty per cent of the total amount of wages earned by the prisoner in a month shall be kept and deposited in a separate common fund which shall be exclusively used for the payment of compensation to the deserving victims or his family of the offence the commission of which entitled the sentence of imprisonment to the prisoner. The account of the fund shall be maintained by the Superintendent of Jail in such form and in such manner as may be prescribed. The rate of compensation to be paid to the victims shall be fixed by a committee consisting of such persons as may be prescribed." It will be clear on a plain reading of Section 35 of the Act quoted above that no criminal prisoner sentenced to labour or employed on labour at his own desire can be kept to labour beyond nine hours in any one day. Section 36 of the Act however provides that criminal prisoners sentenced to simple imprisonment can be employed only as long as they so desire. Section 36-A of the Act states that prisoners shall be paid wages for the employment provided to them at such rate as may be prescribed from time to time. We thus have to refer to the rules as amended to find out the rates of wages for employment of prisoners to be prescribed in accordance with Section 36-A of the Act. 17. Rule 647 of the rules without the details of the tasks appended to sub-rule (3) thereto and Rules 2(J) and 647 -B introduced by notification dated 19th April, 2001 to give effect to Section 36-A of the Act, are extracted hereinbelow : "647. Classes and forms of labour with classification of labour tasks.- (1) All labour exacted from prisoners shall be classified as "hard", "medium" or "light" labour according to the amount of physical exertion required for the performance of a fixed task, and the maximum tasks which shall be exacted from any prisoner shall be fixed. (2) No general reduction of the task fixed shall be allowed in any jail without the sanction of the Inspector General. (2) No general reduction of the task fixed shall be allowed in any jail without the sanction of the Inspector General. (3) The State Government have fixed the following standard tasks for each class of labour on the most important of the various kinds of taskable work practiced in the jails of the Madhya Pradesh." 2(J) "Wages" means the amount of the money earned by a prisoner in a day in lieu of the task or the service assigned to him /her in the jail by the Superintendent of the Jail. 647-B. Management of Wages and Common Fund.- (1) Wages for the tasks as provided in rule 647 and for rendering services as provided in these rules shall be fixed and notified by the State Government from time to time. (2) After considering the volume of work available in the Jail for the tasks mentioned in rule 647 and services as provided in these rules, the Superintendent shall provide employment to the prisoners and the priority for the selection of prisoners shall be in the following order :- (a) Prisoners undergoing Life Imprisonment with rigorous imprisonment; (b) Other prisoners undergoing rigorous imprisonment; (c) Prisoners undergoing simple imprisonment and who are willing to work; (d) In Sub Jails under-trial prisoners who are willingly ready to render their services may be employed if the prisoners of above category are not available. (3) (a) 50% of the wages earned by a prisoner in a month shall be deposited in the common fund; (b) A common fund shall be constituted at every jail in which the wages as mentioned in clause (a) shall be deposited. The fund shall be controlled by the District Magistrate of the district concerned and the Superintendent of the jail concerned; (c) The amount of common fund shall be deposited in a personal deposit account opened in a treasury in the joint name of the District Magistrate of the district and the Superintendent of the concerned Jail; (d) Such amount of compensation from the common fund shall be paid once to a deserving victim of the offence and in case of death of the deserving victim to the family member of the victim as decided by the committee. (4) Remaining 50% of the wages shall be managed in the following manner :- (a) one third shall be paid to the prisoner or his family members to meet legal expenses. (4) Remaining 50% of the wages shall be managed in the following manner :- (a) one third shall be paid to the prisoner or his family members to meet legal expenses. Provided that if there is no such necessity then this amount will be deposited in the bank account; (b) another one-third shall be deposited in the prisoner's bank account and the balance amount shall be paid to him at the time of his release; (c) the remaining one-third shall be available to the prisoner in the form of coupons for purchasing articles from the prison canteen or for making purchases from outside the jail through the Jail Superintendent if canteen is not there : Provided that the Superintendent of Jail shall not permit purchase of objectionable items and his decision shall be final; (d) the wages of every prisoner shall be deposited in a joint bank account opened in the name of the prisoner concerned and the Superintendent of Jail. This account can be opened in any nationalized bank near the jail. (5) Every prisoner shall be entitled to one day weekly off from the work or service as decided by the Superintendent of the Jail. In case of the prisoners employed in the task or the services the Superintendent of the Jail shall ensure that management of their employment is made in such a manner that they get one weekly off every week." 18. On a reading of Rule 647 of the rules, we find that labour exacted from prisoners are to be classified as "hard", "medium" or "light" labour according to the amount of physical exertion required for the performance of the task and the maximum tasks which shall be exacted from any prisoner shall be fixed. Sub-rule (2) of Rule 647 however provides that no general reduction of the task shall be provided in any jail without the sanction of the Inspector General. Sub-rule (3) of Rule 647 enumerates the standard tasks for each class of labour fixed by the State Government. It is not possible to enumerate all the standard tasks fixed by the State Government under sub-rule (3) of Rule 647, but by way of illustration we may give some of the standard tasks fixed by the State Government hereinbelow : TASKS 1. Storing and weighing 50 bags of 74 kilos i.e. 37 Quintals. 2. Brick making moulding 1,000 bricks. 3. Storing and weighing 50 bags of 74 kilos i.e. 37 Quintals. 2. Brick making moulding 1,000 bricks. 3. Surkhi pounding 1 quintal and 75 kilos. 4. Cooking 1 cook for every 50 prisoners. (b) By time (i.e. 9 hours steady work)- 1. Carrying water 2. Carrying stone or clay 3. Masonary and concrete work 4. Grinding lime 5. Tile making 6. Pottery 7. Hewing and cleaving fire wood 8. Rope making 9. Sweeping. It will be clear from the aforesaid tasks as fixed by the State Government under sub-rule (3) of rule 647 that they relate to the quantum of work in case of storing and weighing, brick making, surkhi pounding and cooking and do not relate to four hours of work for which the revised rates have been fixed by the State Government by the order dated 30th June, 1999. Similarly, in case of task such as carrying water; carrying stone or clay; masonry and concrete work; grinding lime; tile making; pottery; hewing and cleaving fire wood; rope making and sweeping, the prisoners are required to do nine hours steady work and not four hours of work. As has been provided in sub rule (2) of Rule 647, no general reduction of the task fixed by the State Government was to be allowed in a jail without the sanction of the Inspector General. Hence, the time of nine hours of steady work was not to be reduced to four hours without the sanction of the Inspector General. 19. We further find that Rule 2(J) defines "wages" to mean the amount of money earned by a prisoner in a day in lieu of the task or the service assigned to him/her in the jail by the Superintendent of Jail. Sub-rule (1) of Rule 647-A introduced by the notification dated 19-4-2001 further provides that wages for the task as provided in Rule 647 and for rendering services as provided in these rules shall be fixed and notified by the State Government from time to time. The expression "from time to time" shows that the State Government has to revise the wages as and when the price index or the cost index increases. The expression "from time to time" shows that the State Government has to revise the wages as and when the price index or the cost index increases. Sub-rule (2) of rule 647-B states that after considering the volume of work available in the jail for the tasks mentioned in rule 647 and the services as provided in the rules, the Superintendent shall provide employment to the prisoners and the priority for the selection of prisoner in the order mentioned therein. It will be clear from sub-rule (2) of Rule 647-B that the prisoners undergoing life imprisonment or rigorous imprisonment and other prisoners undergoing rigorous imprisonment have to be given priority for employment and the prisoners undergoing simple imprisonment are to work only when they are willingly ready to work and in Sub Jails under-trial prisoners who are willingly ready to render their services may be employed if the prisoners undergoing rigorous imprisonment or simple imprisonment are not available. Since it is compulsory under Section 35 of the Act and rule 647 of the Rules for all prisoners undergoing rigorous imprisonment to put in labour and prisoners of this category undergoing rigorous imprisonment are likely to be few compared to those undergoing simple imprisonment, it is difficult to accept the contention of the respondents that the volume of work available in the jail is not enough to provide the prisoners undergoing rigorous employment work for more than four hours in a day. 20. In sub para (3) of Para 51 of the judgment of the Supreme Court in the case of State of Gujarat ( AIR 1998 SC 3164 ) (supra), the Supreme Court has held that it is imperative that the prisoner should be paid "equitable wages" for the work done by them and the Supreme Court has not directed for payment of minimum wages to the prisoners as contended by the petitioner. According to Thomas, J., "equitable wages" payable to the prisoner can be worked out after deducting the expenses incurred by the Government on food, clothing and other amenities provided to the prisoners from the minimum wages fixed under the Minimum Wages Act, 1948 (para 45). According to Wadhwa, J., the prisoner is not entitled to minimum wages fixed under the Minimum Wages Act, 1948, but there has to be some rational basis on which wages are to be paid to the prisoners (para 77). According to Wadhwa, J., the prisoner is not entitled to minimum wages fixed under the Minimum Wages Act, 1948, but there has to be some rational basis on which wages are to be paid to the prisoners (para 77). Rule 2(J) of the rules, as we have seen, defines wages to mean the amount of money earned by a prisoner in a day in lieu of the task or service assigned to him. So far as prisoners undergoing rigorous imprisonment are concerned, we have seen that under the Rules, the normal period of work cannot be four hours. In some kinds of tasks and services, the period of their employment is nine hours and in other kinds of tasks or services, the employment is as per quantum of work and not as per hours. Wages as defined in Rule 2(J) would thus mean such wages as are payable for the hours of labour or for the quantum of work assigned to the prisoner in the jail. Determination of wages for four hours of work is thus not in accordance with law. Further, the rates of wages of Rs. 8/- for unskilled prisoner and Rs. 10/- for skilled prisoner were fixed by the order dated 30th June, 1999 before Section 36-A was introduced in the Act by the Prison (Madhya Pradesh Amendment) Act, 1999 and before rules were amended by the notification dated 19th April, 2001 to give effect to Section 36-A of the Act. The State Government therefore will have to fix and notify the wages afresh in accordance with Section 36-A and Rules 2(J) and 647-B of the Rules keeping in mind the hours of labour or the quantum of work involved in the tasks or the services assigned to the prisoner. 21. The wages so determined for the services or the tasks performed by the prisoners must have some rational basis and minimum wages fixed for similar task/service can constitute a rational basis for determination of such wages. Out of such wages, deductions will have to be made towards food and clothing and other amenities provided to the prisoners. 21. The wages so determined for the services or the tasks performed by the prisoners must have some rational basis and minimum wages fixed for similar task/service can constitute a rational basis for determination of such wages. Out of such wages, deductions will have to be made towards food and clothing and other amenities provided to the prisoners. Medical expenses being part of the obligation of the State under Article 21 of the Constitution as held by the Supreme Court in Permanand Katara v. Union of India ( AIR 1989 SC 2039 ) (supra) and Pashchim Banga Khet Mazdoor Samiti and others v. State of West Bengal and another ( AIR 1996 SC 2426 ) (supra) cannot be deducted from such wages. After such deductions, equitable wages payable to the prisoners can be fixed and notified by the State Government under sub-rule (1) of Rule 647-B of the Rules from time to time. 22. Such equitable wages cannot be a pittance and has to be reasonable because under the scheme of Section 36-B and Rule 647-B, such wages are not only to take care of the expenses of the prisoners in the jail but also are to provide for future rehabilitation of the prisoner as well as compensation to the victims. The provisions of Section 36-A and Rule 647-B of the Rules have been made pursuant to the recommendations in the judgment of the Supreme Court in the case of State of Gujarat ( AIR 1998 SC 3164 ) (supra). In para 33 of the judgment as reported at page 3172 of the AIR, Thomas, J. observed that assurance to 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 the hard labour during the period of his jail life. In paragraphs 47 and 50 of the judgment as reported at page 3175 of the AIR, Thomas, J. has further held that the plight of the victims has been overlooked under the system of criminal justice and the State should constructively think and make appropriate law for diverting some portion of the income earned by the prisoner when he is in jail to the deserving victims. Wadhwa, J. has observed in para 92 of the judgment as reported at page 3188 in the AIR that while fixing wages for the prisoners the State has to show equal concern for the victim and victim's family. In para 100 of the judgment as reported at page 3190 in the AIR, Wadhwa, J. has made a strong plea in favour of the victims in the following words: "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 reforms. 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, humiliation, etc. An honour which is lost or life which is snuffed out cannot be recompensed but then monetary compensation will at least provide some solace." If the twin objectives of rehabilitation of prisoners and compensation to victims are to be achieved, out of the earnings of the prisoner in the jail, then the income of the prisoner has to be equitable and reasonable and cannot be so meagre that it can neither take care of rehabilitation of the prisoner nor provide for compensation to the victims. 23. A plain reading of Section 36-A of the Act and Rule 647-B of the Rules quoted above would show that these two objects of rehabilitation of the prisoner and compensation to the victim forcefully pleaded in the judgments of Thomas, J. and Wadhwa, J. are sought to be achieved by the Legislature and the rule making authority. 23. A plain reading of Section 36-A of the Act and Rule 647-B of the Rules quoted above would show that these two objects of rehabilitation of the prisoner and compensation to the victim forcefully pleaded in the judgments of Thomas, J. and Wadhwa, J. are sought to be achieved by the Legislature and the rule making authority. Section 36-A provides that 50% of the total amount of wages earned by the prisoner in a month shall be kept and deposited in a separate common fund which shall be exclusively used for the payment of compensation to the deserving victims of the offence the commission of which entailed the sentence of imprisonment to the prisoner or his family. In accordance with Section 36-A of the Act, sub-rule (3) of Rule 647-B quoted above provides that 50% of the wages earned by a prisoner in a month shall be deposited in a common fund and such amount of compensation forming the common fund shall be paid once to a deserving victim of the offence and in case of death of the deserving victim to the family member of the victim as decided by the committee. Sub-rule (4) of Rule 647-B provides that out of the remaining 50% of the wages, one third shall be paid to the prisoner or his family member, if any, one third shall be deposited in the prisoner's bank account as a saving to be paid to him at the time of his release and the remaining one third shall be available to the prisoner for purchasing articles from the prison canteen or for purchase from outside the jail. Therefore, unless the wages fixed and notified by the State Government from time to time under sub-rule (1) of Rule 647-B are equitable, the dual objects of the statutory provisions, namely rehabilitation of the prisoner and compensation to the victims cannot be realized. 24. Rules 2(C-1), 2(C-2) and 647-A which have been made by the notification dated 19th April, 2001 for carrying out the provisions of Section 36-A of the Act for paying compensation to a victim of an offence and his family are quoted hereunder : "2(C-1) "Common Fund" means the fund created for a jail from the part of the wages earned by prisoners for the purpose of giving compensation to the deserving victims. (C-2) "Committee" means the Committee constituted for a jail under the provisions of Section 36-A of the Act for fixing amount of compensation to be given to the deserving victims from the common fund created for such jail. 647-A. Constitution of Committee and its Meeting.- (1) The Committee for each Central, District and Sub-Jail shall consist of :- (1) District Magistrate - Chairman (2) Superintendent of Police - Member (3) Superintendent Central/District/Sub-Jail. - Member-Secretary Provided that the District Magistrate and Superintendent of Police may nominate their representative for the committee of a Sub- Jail. Nominee of the District Magistrate shall be the Chairman. (2) The meetings of the committee shall be held once in a quarter or at such intervals as is decided by the Chairman of the committee. (3) The amount of the compensation shall be fixed by the committee at its meeting as per the instruction issued by the State Government in this behalf from time to time and the reasons shall be recorded in writing by the committee for fixing such compensation. (4) For determination of the deserving victims as provided in Section 36-A of the Act, the State Government in the Jail Department shall issue instructions from time to time." 25. Section 36-A provides that the rate of compensation to be paid to the victims shall be fixed by a Committee consisting of such persons as may be prescribed. In Rule 2(C-2) quoted above, "Committee" is defined to mean the Committee constituted for a jail under the provisions of Section 36-A of the Act for fixing the amount of compensation to be given to the deserving victims from the common fund created for such jail and sub-rule (1) of Rule 647-A provides that such a committee for Central, District and Sub- Jail will consist of the District Magistrate as the Chairman, the Superintendent of Police and the Superintendent, Central/District/Sub-Jail as Members of the Committee. Thus under Section 36-A and Rule 2 (C-2), the Committee only fixes the amount of compensation to be paid to the deserving victims from the common fund and cannot identify the "deserving victim" of the offence the commission of which entailed the sentence of imprisonment to the prisoner or his family. Thus under Section 36-A and Rule 2 (C-2), the Committee only fixes the amount of compensation to be paid to the deserving victims from the common fund and cannot identify the "deserving victim" of the offence the commission of which entailed the sentence of imprisonment to the prisoner or his family. Sub-rule (4) of Rule 647 however provides for determination of the "deserving victim" as provided in Section 36-A of the Act and it states that the State Government in the Jail Department shall issue instructions from time to time. 26. Pursuant to our order dated 20-2-2007, the respondent No.3 has filed an affidavit along with Annexure R/5 to show the amounts deposited in the common fund created under Section 36-A of the Act and the amounts disbursed to the victims of offences. The English translation of the aforesaid chart is extracted hereinbelow : Statement of accumulated and disbursed amounts in the common fund of the prisoners lodged in Jails of Madhya Pradesh under Section 36-A of the Prisons Act, 1894 showing the position as on 31-12-2006. Sl. No. Name of Circle Jail Accumulated Amount Disbursed amount Amount deposited in the common fund as on 31-12-2006 1. Circle Jail, Indore and Subordinate Jails 53,61,422 4,60,000 49,01,422 2. Circle Jail, Satna and subordinate Jails 34,27,136 29,000 33,98,136 3. Circle Jail, Jabalpur and subordinate Jails 1,00,32,715 2,10,000 98,22,715 4. Circle Jail, Gwalior and subordinate jails 34,78,731 60,000 34,18,731 5. Circle Jail, Sagar and subordinate jails 23,37,656 2,70,000 20,67,659 6. Circle Jail, Rewa and subordinate Jails 47,33,067 1,50,000 45,83,067 7. Circle Jail, Bhopal and subordinate Jails 1,35,55,216 1,69,500 1,33,85,716 8. Circle Jail, Datia and subordinate Jails 5,98,813 00 5,98,813 9. Circle Jail, Narsinghpur and subordinate Jails 9,22,126 00 9,22,126 10. Circle Jail, Ujjain and subordinate Jails 41,89,302 1,30,000 40,59,302 Total 4,71,57,687 Note : On the basis of information received from the jails of Madhya Pradesh amount of more than Rs. 4,71,57,687/- has been accumulated as on date. The chart would show that as against the deposits made, disbursement to victims has been very meager and the result is that Rs. 4,71,57,687/- is lying in the common fund whereas victims of offences committed by prisoners continue to suffer. 27. 4,71,57,687/- has been accumulated as on date. The chart would show that as against the deposits made, disbursement to victims has been very meager and the result is that Rs. 4,71,57,687/- is lying in the common fund whereas victims of offences committed by prisoners continue to suffer. 27. Thus the object of Section 36-A and Rules 647-A and 647-B to compensate the victim or his family out of the common fund created from part of the wages of the prisoner who has committed the offence is not being effectively achieved. In the affidavit filed pursuant to the order dated 3-4-2007, respondent No.3 has stated that when the offence is committed, the Tehsildar invites information relating to victim and sends the same to the Superintendent of Jail and the victim is asked to contact the Jail Superintendent with the documents for identity of the victim along with the affidavit. This faulty procedure adopted for identifying the victim appears to be the reason why the laudable object of compensating a deserving victim or his family has not been satisfactorily achieved. Unless a deserving victim of the offence is properly identified on the basis of relevant material and he or his family is paid compensation in time, the object of Section 36-A and Rules 647-A and 647-B cannot be realized. Obviously, the victim of the offence the commission of which entailed the sentence of imprisonment to the prisoner can be properly identified by the Court in which the prisoner is tried for the offence on the basis of materials before the Court. Further, whether such victim or his family deserves payment of compensation can be correctly decided if a human right activist in the area sensitive to the needs of the victim or his family is consulted. Accordingly, the State Government in the Jail Department must issue instructions under sub-rule (4) of Rule 647-A that the deserving victims will be determined in consultation with the Court in which prisoner is being tried for the offence and a human right activist in the area to be nominated by the State Human Rights Commission. The details of the instructions can be worked by the State Government in consultation of the High Court and the State Human Rights Commission on the administrative side. 28. The details of the instructions can be worked by the State Government in consultation of the High Court and the State Human Rights Commission on the administrative side. 28. We would, however, like to clarify that since Section 36-A of the Act creates a common fund from part of the wages earned by the prisoners for purposes of giving compensation to the deserving victims, it is not to be understood that only when deductions are made from the wages of a particular prisoner who has committed the offence that the victim of the offence committed by him is to be paid compensation. A deserving victim of an offence can be paid compensation out of the common fund irrespective of whether deductions from the wages of the prisoner who commits the offence have been made or not. Similarly the quantum of compensation to be paid to the deserving victim of an offence may not have any nexus with the quantum of deductions made from the wages of the prisoner who committed the offence. The reason for creating a common fund is that the victim and his family may not accept the compensation if they come to know that the compensation has been paid by the prisoner who has committed the offence. As observed by Wadhwa, J. in paragraph 104 at page 3191 of the AIT in the case of State of Gujarat ( AIR 1998 SC 3164 ) (supra) : "104 ........ 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." Moreover, identification of the victim or his family and payment of compensation out of the common fund need not await the conclusion of the trial before the Court. The victim of an offence or his family may require compensation immediately after the commission of the offence and in such a case, compensation can also be paid to the victim of the offence or his family as soon as the deserving victim or his family is identified on the basis of materials available before the Court in which the prisoner is being tried for the offence. 29. In the result, we direct that- (i) The Government of Madhya Pradesh in the Jail Department will continue to take steps to construct Jails, Sub Jails, Wards, Barracks, Cells in accordance with the Rules 22 to 30 of the Madhya Pradesh Prisons Rules, 1968 and the State Government will ensure that sufficient funds are made available in the budgets for the aforesaid purpose from year to year; (ii) Within two months from receipt of the copy of this judgment, the State Government will fix the equitable and reasonable wages for the prisoners in accordance with the Rule 647-B of the Madhya Pradesh Prisons Rules, 1968 in the light of the observations made in this judgment; (iii) Within two months from receipt of the copy of this judgment, the State Government in the Jail Department will, after consultation with the High Court and the State Human Rights Commission, issue instructions under sub-rule (4) of Rule 647-A of the Madhya Pradesh Prisons Rules, 1968 for determination of the victim of the offence committed by the prisoner so that the Court before whom the prisoner is tried for the offence and a human right activist of the area are involved in the identification of the deserving victim and in case of his death his family members. (iv) Within three months from today, an affidavit will be filed on behalf of the respondents to show compliance with our aforesaid directions relating to fixation of wages under Rule 647-B(1) and relating to issue of instructions under Rule 647-A(4) of the Madhya Pradesh Prisons Rules, 1968. 30. With the aforesaid directions, the writ petition is disposed of. Copies of this judgment will be sent to the petitioner, the Principal Secretary, Jail Department, Government of Madhya Pradesh, Bhopal, the Secretary, State Human Rights Commission and the Registrar General of the Registry. Order accordingly.