There are plenty of questions associated with convict labour. This paper would be an approach towards answering these questions effectively. It would include the constitutionality of convict labour and an outline of the rights that a prisoner can enjoy. An analysis of prison labour ethics would be incomplete without considering the imperative section of human rights. The question of minimum wages to prisoners and profiting out of prison labour is also a matter of concern. Most importantly, the rehabilitative nature of prison labour along with the punitive aspect will be critically analysed.
The ethical aspect of prison labour has always been a controversial one. Penal labour is a generic term for various kinds of unfree labour which prisoners are required to perform, typically manual labour. The profit motive behind privatization of prison labour must be completely eliminated as the ultimate aim is rehabilitation.The existing disparity in wages is unreasonable and arbitrary. However, this disparity is just the tip of iceberg giving a glance of the many unnoticed violations of prisoners, rights.
History of prison labour
The industrial revolution in 19th century England created a demand for manpower and convicts became the answer. During that period of time the government found convict labour easier compared to free man labour. As per history, prison labour was considered as a form of mandatory labour and prisoners did not have a choice.Imprisonment with hard labour was first introduced into English law with the Criminal Law Act 1776 (6 Geo III c 43).
Initially, India focussed on prison labour as a “punitive” measure. It was intended originally to humiliate, disgrace and finally to crush the prisoner. In almost all the countries, the wages given to prisoners is very meagre compared to the work done. Sweden can be an exception in this regard. In Sweden there are certain prisons where full civilian wages are paid to all prisoners, who pay income tax and a charge for room and board.
Human rights versus Penal labour
Analysis of human rights would require a scrutiny of the international conventions. The International Covenant on Civil and Political Rights eventhough condemns compulsory labour excludes prison labour from its coverage. The same would apply to the European Convention on human rights and the ILO convention on forced labour. The European Convention did mandate merciful and humane treatment of prisoners. Restrictions were placed with regard to hiring prisoners by private companies for profit. Other than this, it does not restrict convict labour in any sense.
Author would like to point out this very lacuna in law. It is indeed unfortunate that “forced prison labour” is not covered under any of these international conventions. It is acceptable that prisoners cannot be considered as ordinary citizens of the country. On the contrary, it is also true that reformation is not possible with forced labour. It may not create a sense of positivity and may seem to be hard or forced upon. Voluntary prison labour may be adopted instead.
Constitution of India versus Prison labour
There are basically two broad categories of imprisonment: simple imprisonment and rigorousimprisonment. Hard labour is imposed in the case of rigorous imprisonment. The constitution of India guarantees fundamental rights to all citizens but reasonable restrictions are imposed on prisoners. “Prisoners retain all rights enjoyed by free citizens except those lost necessarily as an incident of confinement, rights enjoyed by prisoners under Arts 14, 19 and 21 though limited are not static and will rise to human heights when challenging situations arise.”
Right to life and personal liberty enshrined under Article 21 of the constitution applies to prisoners too. A handful of case laws to support the point that constitutional rights are applicable to prisoners can be given as follows:
- Court expounded the connotation of the word ‘life’ under Article 21 as “something more than mere animal existence”. The word “person” under this Article includes persons in prison as well.
- The Supreme Court ruled that the right to life and liberty includes the right to live with human dignity and therefore a detainee would be entitled to have interviews with family members, friends and lawyers without severe restrictions.
- Torture is not only physical,it can be mental and psychological torture due to fright and submission to commands. When the threats proceed from a person in Authority and that too by a police officer the mental torture caused by it is even graver.
- When custodial deaths occur, it is not only to the public at large that those holding custody are responsible; they are responsible also to the Courts under whose orders they hold such custody.
- Court guaranteed the right against cruel, unusual or oppressive jailpractice.
- Prison restrictions amounting to torture, pressure or infliction, beyondthat awarded by the Court must pass the best of scrutiny with reference to Article 21.
- In Citizens for Democracy V. State of Assam, the Court held that handcuffing of prisoners should be in exceptionalcircumstances as it is against human dignity and violative of Article 21.
These case laws highlight the fact that prisoners are entitled to fundamental rights. Only exceptions are the rights that are reasonably restricted due to confinement in the prison.
Minimum wages to prisoners and misuse by private enterprises
It is a known fact that prisoners are given very meagre wages compared to a person who does the same work outside prison. There is no intelligible reason behind this ambiguity. A prisoner and a citizen outside prison may be different in many aspects related to freedom and other constitutional restrictions. But, there is no good reason as to why conviction should be a reason for paying inadequate wages.
In MahammadGiasuddin v. State of A.P., the court directed the state to take into account that the wages should be paid at a reasonable rate. It should not be below minimum wages, this factor should be taken into account while finalizing the rules for payment of wages to prisoners, as well as to give retrospective effect to wage policy.
Further, when the payment made for a service rendered is inadequate, it clearly amounts to forced labour. This has been held in cases such as People’s Union for Democratic Rights v. Union of India. Forced labour is prohibited under Article 23 of the Indian Constitution and Article 39 lays down the rules of policy to be followed by the State and clause (a) of this Articlerefers to the principle that the citizens should have right to adequate means of livelihood. Similarly a humane working condition is also a right. Reading all these together we could draw the conclusion that voluntary or involuntary prison labour without adequate wages can be indirectly contrary to the constitutional principles. Inadequacy in wages given does not have any relationship with the essence of imprisonment.
The increasing use of convicts by private firms is a matter to pause and contemplate. The very idea of conviction, irrespective of whether it is simple or rigorous imprisonment is not learning or mastering a skill. Furthermore, when the labour is being done for a private company it completely erases the purpose of imprisonment. The companies that don’t include prisoners as labourers will face an unfair economic disadvantage. Moreover, the working pattern and wages will differ from one company to another, thereby creating differences among the prisoners who otherwise will be provided meagre but uniform wages. Private companies shouldn’t be responsible for the detention and discipline of people as they are not democratically accountable or transparent in the way government is.
The principle of reformation and rehabilitation
Punishment or the “punitive measure” coupled with reformation constitutes the true meaning of imprisonment. A convict who comes out of prison with an unchanged mind is the failure of the whole idea of conviction. How far prison labour can help in reformation is something to be pondered over. An objection may be raised against prison labour that it is defective in so far as it denies opportunities to the prisoner for introspection and repentance. It takes away the solitude that is necessary for self-introspection.
Another way to criticize would be that labour may create a sense of well-being among the prisoners and they may start having positive thoughts about being confined. This is not what is expected by conviction. Work cannot be considered as a punishment. Many prisoners may voluntarily take up works to fight their boredom. Hence, work should not necessarily be considered as a punitive measure.
Being a prisoner does not take away the right to life and personal liberty of the prisoner. Forced labour is something that needs to be prohibited both inside and outside prison. If the prisoner wants to voluntarily get involved in works or learn new skills it can be encouraged. But, author believes that forced labour in prison cannot do any good in reforming or rehabilitating the convict. Also, when the service rendered is the same, why should there be a difference in payment? Any person (ordinary citizen or a convict) for that matter deserves equal pay for the same job. Lastly, it would be better if the kind of works given to convicts be of future help to them in building a new life after the period of imprisonment.
 George T. Felkenes, The Criminal Justice System; Its Functions and Personnel (1983) p.266
“Public Act, 16 iGeorge III, c. 43”.The National Archives.
N.S. Chandrasekharan, “Prison Labour – Reformative and Rehabilitative Aspects”,  C.U.L.R. at p.162.
J.D.Mc Clean and J.C.Wood, op.cit., p.118.
F.VanPanhuys, L.J.Brinkhart and H.H.Mass (Ed.), International Organisation and Integration (1968), p.258
 Indian Penal Code, 1860 S. 53
Charles Sobrajvs The Suptd.Central Jail, Tihar. 1978 AIR 1514, 1979 SCR (1) 512
Kharak Singh v. State of U.P. 1963 AIR 1295, 1964 SCR (1) 332
Francis Coralie Mullin v. The Administrator, Union Territory of Delhi and others, 1980 AIR 849, 1980 SCR (2)1095
Arvinder Singh Bagga v. State of U.P. and Others, 1995 AIR 117, 1994 SCC (6) 565
Ajab Singh &Anr. v. State of Uttar Pradesh &Ors, 2000 ACJ 470
Sunil Batra (I) v. Delhi Administration, AIR 1978, SC 1675.
SheelaBarse V. State of Maharashtra, AIR 1983 SC 378 &Javeid V. State of Maharashtra, AIR 1985 SC 231
AIR 1996 SC 2193.
 (1977) 3 SCC 287
 1982 AIR 1473, 1983 SCR (1) 456