3. Carceral labour in India

Labour has been part of the sentencing processes in India as well as the imperatives of prison governance and discipline since the introduction of modern prisons in the Indian subcontinent intertwined with the colonial rule. The Indian Penal Code (IPC), promulgated in 1860, classified the sentences handed out at the time of conviction between rigorous imprisonment and simple imprisonment, the former translating into mandatory hard labour as part of the sentence itself (Vibhute, Reference Vibhute2000, p. 2). The same classificatory practice continues in the newly promulgated Bhartiya Nyaya Sanhita (hereafter, BNS), although this change of the penal code was made to signal “decolonisation” by the current ruling regime. Apart from legally mandated punishment, it is also crucial for both the physical and ideological reproduction of the prison, as well as that of the prisoner. Cohering different logics and drives, its appeal resides in its ability to hold together and reconcile various purposes and contradictions in the idea of punishment itself. Punishment here is not just the legally mandated sentence but all that makes life in prison, as the distinctions between what is legally mandated and what is done by the “free will” of the prisoner fade away in the everydayness of its functioning. For those sentenced without mandatory labour, or the undertrials (who constitute around 80% of the prison population in India currently) (Open Government Data Platform India, 2024), labour is projected as crucial for their well-being, reform and rehabilitation, as well as for the maintenance of prison discipline. It is also made essential for the physical and emotional survival of the prisoners by the way life in prison is structured. This is done through making prisoners purchase basic survival items of everyday use, apart from bare minimum food and bedding, from prison canteens. Thus, carceral labour binds together ideas of punishment in an authoritarian and punitive package, while also being represented as a key mechanism of reform, rehabilitation, and survival. However, to understand its mechanisms and functioning in the contemporary period, it is crucial to see its historical trajectory within the context of the vast socio-political and economic reconstruction of the Indian subcontinent under British colonial rule. While a comprehensive history of this period is out of the purview of this paper, a brief overview is provided here.

Under the colonial rule, an obligation to labour became, in both practical and ideological terms, a cardinal feature of the penal regime and a central part of the policy that sought to transform criminal natives into governable subjects (Sen, Reference Sen2000). Imprisonment with hard labour was first imposed as punishment in British colonial India in 1790 (Bhosale, Reference Bhosale, Menon, Nigam and Palshikar2014, p. 326). Over the course of the 19th and 20th centuries, convict labour in India was called upon to serve several purposes—as a deterrent; as an instrument of discipline and punishment within the prison; as an incentive to prisoners’ reform and rehabilitation; for supplying labour to its penal colonies; building infrastructure like roads and canals; and keeping the investment in prisons to the minimum (Arnold, Reference Arnold, De Vito and Lichtenstein2015, p. 199). It is also important to note here that the deployment of convict labour and its disciplining strategies in the late 18th- and 19th-century India took place against the recurring problems of creating and retaining a pliant labour force. As with other coercive forms of labour, the use of convict labour allowed employers to regulate the labour market by pushing down prices. The very presence of convicts on construction sites, officials pointed out, could keep a check on local wage rates (Joshi, Reference Joshi and Stanziani2012, p. 286). Thus, the history of the forms of “free” labour was intimately linked to that of coerced labour. The prison served as one node in a series of interconnected sites of labour control and deployment—both within British India and across the wider imperial sphere.

While the use of prisoners as “convict workers” highlighted their economic utility, from the 1830s onwards, material considerations always mingled (at least in the minds of penal reformers and administrators) with a sense of the moral value of labour and with the pragmatism involved in the colonial management of caste, race, gender, health, and religion (Arnold, Reference Arnold, De Vito and Lichtenstein2015, p. 199). Thus, prisons and their labour practices also became sites of enforcing a particular kind of labour regime through their moral value for reform and a new ontology of the labouring body, which was further hierarchised according to caste, race, and gender.

While initially the primary use of prison labour was in building the colonial state’s infrastructure outside the prisons, by the late 19th century, convict labour came to be deployed primarily inside the prisons (though extra-mural labour continued). Labour inside the prisons comprised the reproductive work involved in the upkeep of the prison, the work of convict warders, and workshops producing goods on the model of the factory, which became a central feature of work regimes in the jails of colonial India. (Arnold, Reference Arnold, De Vito and Lichtenstein2015). This also allowed for the allocation of task work according to a convict’s occupational background and caste status (Yang, Reference Yang2023, p. 812). It had the potential for being highly profitable for an otherwise cash-strapped jail department while making a case for such labour to be morally sound and physically healthy, as well as an incentive to reform and rehabilitation that were becoming important ideals in the penal governance at this time (Arnold, Reference Arnold, De Vito and Lichtenstein2015, p. 213).

Convict women took an ideological significance quite out of proportion to their minuscule numbers within the colonial Indian prisons. The women entering the circuit of the colonial criminal justice system were seen both as deviants from proper femininity and victims who needed the colonial state to rescue them (Sen, Reference Sen2002, p. 419). This tension charged female prisons with urgent projects of reform and rescue. The basic mechanism of reform for such women was conceptualised through vocational training and comprehensive segregation to transform them into productive, orderly members of the labouring class and the patriarchal family. Many long-term women convicts were “trafficked” to the Andamans penal colony to provide wives for male convicts, to disincentivise homosexual relationships between men, and as an incentive for politically manageable domesticity (Sen, Reference Sen2002, pp. 417–18). Most women in the ordinary jails were either employed in domestic service or expected to sew and repair the clothes of other convicts and prison staff, to clean and husk rice, grind wheat flour and dal, or restrict to conventional training involving needles and textiles: the more “feminine arts” (Arnold, Reference Arnold, De Vito and Lichtenstein2015, p. 217). The work performed by female convicts served certain ideological imperatives. In the context of women’s criminality, which was defined primarily in terms of either their immoral sexuality or idleness (Anagol, Reference Anagol2002), prison labour and vocational education sought to train and instil in them the moral value of work that was stable and properly subordinated to the authority of the British and to the patriarchy of elite Indians (Sen, Reference Sen2002, p. 424), as well as according to the capitalist needs of gendered labour.

The rules for governing and regulating penal labour were codified in the Prisons Act, 1894 (Act IX of 1894) and various jail manuals of different states at different times. It broadly classifies labour into light, medium, and hard according to intensities and skills required. While the duration of various tasks differed, the maximum number of working hours was fixed at 9 hours a day (Ministry of Law, Government of India, 1894). The jail manuals also provisioned for prisoners of different classes and castes to be allotted or not allotted to particular kinds of labour (Yang, Reference Yang2023, pp. 812–16). Not completing the tasks or refusing to labour came with various kinds of punishment, from whipping and flogging to solitary confinement (Sherman, Reference Sherman2010). There were also various systems of incentives instituted over time, like remissions and cash allowances for the well-behaved and labouring prisoners (Bhosale, Reference Bhosale, Menon, Nigam and Palshikar2014, p. 328). It also needs to be stated here that, though broadly under these codes, the actual governing of this labour depended on the exigencies of everyday administration by the prison staff (Yang, Reference Yang2023, pp. 814–16). This resulted in both compromises with prisoners and discretion for extreme violence and control over them.

In the context of post-colonial penal governance in India, the colonial/postcolonial divide was marked not by disruption but indeed by continuity of practice and purpose (Brown, Reference Brown2016, p. 187). However, it must be noted that this was not a bland continuity bereft of any shifts, tensions, and dilemmas. Building the constitutional framework was and has been a terrain of struggles between the continuation of colonial legal frameworks and the desire for transformative changes rather than a simple continuity or overcoming (Dasgupta, Reference Dasgupta2024). Creation and preservation of a strong central state emerged as a precondition for the constitution makers for building the independent Indian nation-state. Instead of being constructed anew over the ruins of its former colonial self, the state machinery itself sought to become the organiser of the project of social change, in charge of the national leadership and administrators (Dasgupta, Reference Dasgupta2024). However, the legal instruments preserved and adapted to post-colonial conditions also cast a shadow of a conservative law-and-order authoritarianism, which has created a grey zone between the rule of law and a state of emergency in the trajectory of independent India (Ahuja, Reference Ahuja2018, p. 19). The Constitution thus inaugurated a “cognitive dissonance” in ways that marked its rather schizoid course of development (Baxi, Reference Baxi2007, p. 101).

The figure of the “citizen” in the post-colonial moment embodied the contradictions of this transformative moment, which held out the promise of rupture from the colonial past, and yet remained sutured to it, by the logic of the nation-state and the performative practices of social and political power that are integral to the modern state (Rao, Reference Rao and Fernandes2023, p. 87). Citizenship and the various contradictions it embodied also became a key site of mediation of the relationship between the prisoners and the post-colonial Indian nation-state, where the prisoner had to be reclaimed as a citizen through productive labour.Footnote ⁵ While for the colonial state, the reform and rehabilitation of prisoners were intertwined with the civilising mission and creation of subservient colonial subjects, for the newly independent Indian nation-state, it became coalesced with its quest for modernity, progress, and productive citizenship. The idea of reform was primarily encoded in terms of imparting varied labour skills and vocational training to prisoners, to make them productive members and citizens in service of building a modern nation-state.

In its praxis, the running of prisons has been full of tensions and contradictions, especially between the punitive function of imprisonment and reform whenever the former seemed to undercut latter. Also, the everyday functioning of prisons and their labour regimes does not have much judicial or political oversight, leaving prisons as spaces of discretionary powers. Another strand of prison administration, in continuation from the colonial administration, is the low level of investment in building prison infrastructure and administration by the state, resulting in abysmal levels of facilities and provisions for prisoners for a dignified life (India Justice Report, 2025). Prisons continue to be state subjects under the Constitution, with much of the funding controlled by the central government.

Though the question of prison labour did not come up directly during the framing of the Constitution, it has been discussed under the larger debate on forced labour, both in the judicial realm and in scholarship. Forced labour was deliberated upon at the time of the framing of the Indian Constitution, especially around Begar, a caste-based practice of bonded labour, and other such practices termed as “feudal slavery” (Dasgupta, Reference Dasgupta2024, p. 252). These concerns and debates ultimately manifested in the inclusion of Article 23 in the Indian Constitution, which reads as:

1. (1) Traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law;

2. (2) Nothing in this Article shall prevent the State from imposing compulsory service for public purposes, and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them.

Exactly what is and could be construed as “forced” in forced labour has had a contentious history rooted in political struggles and social structures. Most directly, it has been shaped by the campaign against slavery in the 20th century. Here, the terms of debate on forced labour were framed towards more traditional forms of “slavery,” “servitude,” and “slavery-like practices” that direct attention away from forms of coercion regularised within the capitalist relations of labour organised by wage (Roberts, Reference Roberts2023). Forced labour, in this iteration, emerged as the primitive other against which the liberal state and rule of law defined itself, both in political rhetoric and international law. Though not bereft of contestation, the Indian Constitution similarly construed the meaning of “forced labour” in terms of its most extreme and obvious variant, the practice of Begar. The phrase “similar to” sought to constrain the scope of contestation and expansion of the meaning of “forced” by invoking the all-important use of a simile (Dasgupta, Reference Dasgupta2024, p. 253).

Indian courts, in post-colonial India, have also framed the question of prison labour and its remuneration around the question of forced labour, in particular in reference to this article. In their judgements, various sets of logics are deployed to determine the character of prison labour, at times the same logic resulting in opposite outcomes. In some instances, the courts have tended to expand the meaning and scope of forced labour to include prisoners’ rights; in others, they have taken a conservative view and denied them such constitutional protections. This has led to juridical ambiguity, resulting in the lack of any clear principles of law governing this labour. I now turn to this terrain of ambiguities.

4. Judicial ambiguity

The Supreme Court of India and various High Courts, on multiple occasions, have stressed that a convict, by mere reason of conviction, is not denuded of all the fundamental rights (Kaur, Reference Kaur2021). In the landmark case of Sunil Batra (I) v. Delhi Administration 1978, a constitutional bench of the Supreme Court took serious note of the treatment meted out to undertrials, convicts, and those awaiting the death penalty. Justice Krishna Iyer, in this judgement, expounded: “The humane thread of jail jurisprudence that runs right through is that no prison authority enjoys amnesty for unconstitutionality, and forced farewell to fundamental rights is an institutional outrage in our system where stone walls and iron bars shall bow before the rule of law.”Footnote ⁶ However, when it comes to the right of prisoners against forced labour or minimum wages, the rule of law descends into ambiguity, in effect abandoning the prisoner to the discretion of the prison administration and the state, where the stone walls and iron bars do not bow before the rule of law. I demonstrate this through a reading and analysis of some of the prominent judgements on the right to minimum wages in prison by appellate courts.

Whether a prisoner undergoing imprisonment, as a matter of right, can claim wages in return for his labour has been brought to the courts through various petitions filed by prisoners themselves. These petitions raised concerns about not being paid or being paid a pittance below minimum wage. While adjudicating these matters, the courts have oscillated between the constitutional rights against exploitation (guaranteed under Article 23) and the right to life and personal liberty (assured in Article 21) on the one hand and the absence of precise constitutional legal and regulatory frameworks for governing prison labour on the other (Vibhute, Reference Vibhute2000, p. 5).

In the matter of Re: Prison Reforms Enhancement of Wages of Prisoners 1983 (hereinafter the Kerala Prison Reforms), one of the first landmark cases regarding remunerating prison labour, the Kerala High Court took cognisance of the complaint of the 19 prisoners of the Central Jail of Cannanore (in Kerala) about inadequate wages.Footnote ⁷ The primary questions to be deliberated by the court were framed as whether prisoners undergoing a sentence were entitled, as of right, to claim that they should be paid wages for their labour? And does denying adequate wages for the labour extracted from prisoners infringe on their constitutional rights and is such a claim in law enforceable by the court’s mandate?

Since the case did not directly call for testing the validity of the exception contained in the second clause of Article 23 in the case of compulsory penal labour, the court did not get into that question. It assumed that because of the statutory provision in Section 53 of the IPC, performance of labour by the prisoner sentenced to rigorous imprisonment could be enforced whether there is consent or not. However, the court noted that the IPC only decrees compulsory hard labour but not free labour. Elaborating on this argument further, it stated that “if there is a fundamental right available to a person to get remuneration for the work done by him then non-payment of such remuneration would amount to ‘forced labour’ within the meaning of that term in Article 23 (1).”Footnote ⁸ The court further opined that prisoners should be entitled to claim that by extracting not only hard labour but also free labour from them, the provision of Article 23 (1) of the Constitution has been infringed.

Consequently, the court noted that the state could be directed not to deny reasonable wages to the prisoners from whom the state takes work in its prisons. The standard of reasonable wages should be determined by the amount to be paid to an employee, who is free to negotiate and has the support of the welfare and labour legislations. However, in its final direction, the court left it to the government to determine the amount of reasonable wages to be paid to the inmates of the prisons.

A full bench of the Gujarat High Court in Jail Reforms Committee v. State of Gujarat, 1985, delivered a judgement with similar reasoning regarding the rights of prisoners to reasonable wages to be decided in accordance with the minimum wage law.Footnote ⁹ A new development in this case was that the state government agreed to this principle but proposed to deduct “maintenance charges” for food, clothing, and lodging from such wages. The court, however, took the view that this would not be proper, as a prisoner undergoing imprisonment is not voluntarily staying in the jail, and the obligation to feed and clothe him is not an obligation for which any claim could be made by the state. Therefore, the court stated that no deduction for expenses incurred for food and clothing would be made from the prisoner’s wages.

In another significant judgement with similar reasoning on the matter (Gurudev Singh v. State of Himachal Pradesh 1992) Footnote ¹⁰, the Himachal Pradesh High Court explicitly stated that prisoners’ right to wages would fall under the Minimum Wage Act.Footnote ¹¹ This case also arose from a petition by prisoners against abysmal prison wages. They complained of being paid a pittance (₹1.50 per day) for the labour they were doing and argued that they should be entitled to minimum wages. The state in turn argued that payment of minimum wages to all prisoners, including those undergoing rigorous imprisonment, would amount to abolition of the institution itself, which has remained so far an accepted principle of jurisprudence. The state further argued that manual work by prisoners sentenced to labour is a recognised part of jail administration and discipline as envisaged by the Prisons Act, 1894, and Jail Manuals. To prescribe minimum wages for such labour of the prisoners inside the prison would adversely “affect jail administration, discipline and morale.”Footnote ¹² Moreover, the state argued that combining minimum or reasonable wages with the concept of rigorous imprisonment would mean some kind of assured employment to the prisoners in preference to the law-abiding unemployed citizens outside the prison walls.

Here, it is pertinent to note in the state’s response the centrality of not just the labour of prisoners but labour not remunerated according to the Minimum Wages Act for the maintenance of the jail administration itself, its “discipline and morale.” The logic of carcerality is seen as collapsing if prisoners’ labour is remunerated according to the same principles as those outside its walls, notwithstanding other deprivations of rights and privileges that the prisoners are subjected to. Thus, maintaining the carceral power of the state emerges as antithetical to the governing of prison labour by established principles of constitutional and labour laws.

In a logic differing from the above discussed judgements, the Andhra Pradesh High Court, in a verdict delivered in the P. Bhaskara Vijaykumar v. Andhra Pradesh 1988, declined to equate the extraction of hard labour without wages from a prisoner undergoing rigorous imprisonment with either Begar (bonded labour) or similar forms of forced labour and, consequently, not contrary to Article 23 of the Constitution. This case arose from a public interest litigation (hereafter, PIL) which argued that the 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.

The court argued that “hard labour imposed by a judicial verdict is more like a punishment of the prisoner and less like a means of extraction of useful work and that forced labour in Art. 23 connotes employment of labour productively and not as punishment, but without the consent of the labourer.”Footnote ¹³ The logic deployed here is that, due to its punitive nature, the work done by prisoners cannot be seen as useful or productive. Further elaborating on the punitive nature of prison work, it stated that the “essence of rigorous imprisonment by our penal system is to condemn the prisoner to inconvenience, unpleasantness” and that “if extracting the labour is held to be contrary to Article 23 on the assumption that it is forced labour, a major part of the IPC as well as prison punishment in vogue in India is bound to collapse.”Footnote ¹⁴ Here again, the anxiety that the whole edifice of carcerality would collapse if prisoners’ labour is recognised as work and thus fairly remunerated becomes apparent. It must be coded in terms of punishment and thus justified to be not remunerated according to the principles applied to “productive” work.

The judgement goes on to elaborate a twisted logic to deny the protection of Article 23 to prisoners, centred on differentiating between a free worker and a labouring prisoner. It states that to be free, the worker should have the option to engage in the work offered or to refuse it, which is the edifice of “the contract of employment peculiar to capitalism.”Footnote ¹⁵ Following this, the court argues that the labour imposed on the prisoner undergoing rigorous imprisonment cannot be held unconstitutional in the context of Article 23, as the prisoner does not have a choice to refuse this work. In this logic, the very lack of choice of a prisoner becomes the basis of refuting the charge of forced labour. The court also completely elides the fact that the under challenge was not the imposition of labour as punishment but its non-adequate remuneration. The implied argument here seems to be that as prison labour does not arise out of contract, which is the essence of the definition of work under capitalism, it cannot be considered under the juridical category of work and the legal principles governing it. The court further argued that constitution makers did not envisage the possibility of the violation of the right against forced labour by the state but only by other private individuals. Thus, the court understood Article 23 as a prohibition directed against the social practices of one member of the society against another rather than a prohibition against the state.

While admitting “awfully inadequate” wages exhibiting “lack of concern for either the nature of the prison labour or compassion for ill-fate of the prisoners,” it directed the state government “to pay the prisoners adequately for the labour extracted from them,” and to constitute a committee to consider various aspects and fix a scale of wages that would be “fair” to the prisoners and not “unfair to the rest of the society.”Footnote ¹⁶ In favour of this, the court argued that such payment would benefit the dependents of the prisoner and would help the prisoner to rehabilitate himself with social utility. The court also reasoned that “it will work out much cheaper for the State to pay the prisoners decently and rehabilitate them to the maximum extent possible than render them socially useless on their release and burdensome to the community.”Footnote ¹⁷ So the sanction here for payment of wages arises from the benevolence of the law and a calculation of benefits for the state, rather than as a right of prisoners to remuneration for their labour.

This matter was heard in the Supreme Court in 1998, in State of Gujarat and Another v. Hon’ble High Court of Gujarat,Footnote ¹⁸ as a challenge by the Gujarat government against the Gujarat High Court ruling regarding judicially mandated minimum wages to prisoners and against the deduction of maintenance costs from such wages. It was cluttered with other similar challenges by state governments and writ petitions. All the state governments strongly opposed the right of the prisoners to claim minimum wages under the Minimum Wages Act. They argued that prisoners have no right to claim wages at all except those provided under the provisions of the Prisons Act, 1894, and the rules made thereunder; and non-payment of wages to prisoners undergoing a sentence of imprisonment with hard labour would not be violative of Article 23 of the Constitution. States, however, agreed that the prisoners are entitled to certain wages but only by way of incentive/bonus/honorarium/gratuity/reward/stipend and not as a right. The court gave two separate opinions in two separate judgements.

The majority judgement written by Justice K.T. Thomas (speaking for himself and Justice M.M. Punchi) opined that the imposition of forced labour on a prisoner is violative of Article 23 (1), but protection from the ban is possible only if it can be justified as a necessity to achieve some public purpose, the basis of exception contained in its subclause (2). Hence, the court was concerned with whether such labour could be justified as necessitating a public purpose. Answering in the affirmative, the court argued that reformation should be the dominant objective of a punishment, and giving wages would ensure the prisoner of savings for rehabilitation. Thus, reformation and rehabilitation of a prisoner based on mandatory labour were deemed to be great public policy and, hence, serve a public purpose.

On the question of wages to be given to prisoners, Justice Thomas argued that it is not only the legal right of a workman to get wages for the work performed but also “a social imperative and an ethical compulsion.”Footnote ¹⁹ He further elaborated that “extracting somebody’s work without giving him anything in return is only reminiscent of the period of slavery and the system of Begar.”Footnote ²⁰ Adding a twist to this reasoning, the court, while agreeing that prisoners should be paid minimum wages for the work done by them, qualified this by arguing that “if wages at the rates fixed under Minimum Wages (MW) Act are paid to a prisoner without making any deductions for maintenance, its net effect would be that the prisoner gets wages apparently more than the emoluments of a workman who does the same type of work outside the jail. This is because the latter must meet his expenses for food and clothes from the minimum wages paid to him.”Footnote ²¹ The court argued further that even the MW Act permits the employer to make deductions of certain kinds from the wages of an employed person. In its final directions, the court stated that it was inclined to grant the request of the government to permit them to deduct the expenses incurred for food and clothes of the prisoners from the minimum wage rates. It suggested that the government can arrive at the reasonable percentage to be deducted from minimum wages, taking into account the average amount of the government’s expenditure for providing food, clothes, and other amenities per prisoner. Additionally, the judgement recommended that states set apart a portion of the wages as compensation to deserving victims.

Here, the court enacts a reversal of the reasoning of the essential difference between prison labour and free labour adopted by the judgements discussed earlier, though with differing outcomes. While equating prison labour with labour performed outside as the basis for deducting maintenance costs from prisoners’ wages, the judgement completely elides the penal context, most importantly that the state, while imprisoning someone, must provide for their upkeep. Paradoxically, through this erasure of difference, the judgement paves the way for differential wages of prison labour and similar labour outside through the deduction of maintenance costs and victim compensation from prison wages, to be decided by the states without any scrutiny.

In this case, Justice D. P. Wadhwa’s dissent held that putting a prisoner to hard labour while undergoing rigorous imprisonment awarded by a court of competent jurisdiction cannot be equated with either Begar or “other similar forms of forced labour.” In fact, he argued that Article 23 has no role to play here. Bringing back the penal context of the labour he states that, “a prisoner is forced to do hard labour as part of his punishment for the crime committed by him and this punishment is imposed upon him by a court of competent jurisdiction in accordance with law.”Footnote ²² Referring to the PUDR v. Union of India and other similar judgements,Footnote ²³ he argued that the same principles cannot be applied here, as hard labour is a part of the sentence and not of any contract like in these cases. Thus, he argued that prisoners’ right to claim wages as well as the payment of wages to them under either Article 23 of the Constitution or the Minimum Wages Act, 1948, cannot be justified. He did not oppose the granting of wages and agreed with the directions given by Justice Thomas. However, he justified the payment of wages not on the basis of any constitutional principles but on the Prisons Act and Rules made thereunder. Thus, wages given to prisoners do not arise out of rights under law and the Constitution but from the imperatives of prison governance. To emphasise this, Justice Wadhwa stated that:

Subsequently, this reasoning of the Supreme Court has been adopted and echoed by courts adjudicating similar matters. In Kartick Paul v. The State of West Bengal and Others (2020), the Calcutta High Court ruled that prison authorities are not bound to pay minimum wage to the prisoners doing labour in prison. The court argued that “prison service cannot exactly be equated with normal service, outside incarceration. There are certain distinctly discerning features in the former, as compared to the latter.”Footnote ²⁵ Elaborating further, the court noted that prison labour is not just mandatory for prisoners under rigorous imprisonment but also obligatory for the prison authorities to provide. Therefore, as it does not arise from the requirements and convenience of the authorities, they are not obligated to remunerate “according to the general statute governing the field, that is, the Minimum Wages Act.”Footnote ²⁶ This observation completely invisibilises the role of prison labour in sustaining its everyday functioning, its physical, and ideological reproduction.

However, the court also asserted that, “the logic, that prison service being penal in nature, does not justify the prisoners being paid less than their entitlement, and getting less wages than reasonable compensation for their work and rehabilitation”Footnote ²⁷. But how these wages should be determined was again left at the discretion of the prison authorities and state government after deduction of maintenance costs and funds for victim compensation.

Reading these judgements together, what emerges is a space of legal ambiguity and anxiety. While asserting the supremacy of the framework of the constitutional legality guaranteeing a life of dignity and the right against exploitation, extending even to prisoners, the anxiety regarding undermining the punitive logic of imprisonment and its labour also surfaces palpably. Constitutional assertions, if taken to their logical conclusion in terms of giving minimum wages and other protections of law to the prisoners, undermine the logic of carcerality itself, threatening its boundaries and separation from the rest of society.

The right to a minimum wage and contract of employment emerge here as markers of freedom itself and thus cannot be extended to the prisoner. Wage labour organised through contract has been one defining feature of free labour in the capitalist ideology. The concept of free labour has also been constituted through opposition to categories of slaves, serfs, and caste-based bonded labour in the Indian context. Here I draw on the Marxist critique of wage labour and its legal mystification. According to Marx, the “formal” freedom of wage labour is merely the “deceptive appearance” that mediates its essential nature as a form of subjugation by capital (Banaji, Reference Banaji2011). Liberal legalism, thus, grounds the coercion of the wage labourer in the fictions of consent and free will of “contract” and formal freedom. This brings us to the structural contradiction of the liberal rule of law, explicated at the beginning of the paper. The implication is that “freedom” under liberal rule of law comes to be understood strictly in terms of the ideology of contract and the abstractions of individualism. At the same time, it needs an “other” to sustain this idea of freedom. I argue that, in these judgements, carceral labour emerges as this “other,” allowing the relation of wage labour and to be constructed as free.

Here, prison labour and its involuntariness emerge as another oppositional category to free labour and contract of work. Hence, governing prison labour by the same legal principles as free labour or equating the wages due to them does not just threaten the boundary between prison and outside; it also destabilises the distinction between freedom and coercion itself, which is coded in terms of the subjects being free to enter into contracts of exchange with each other and the state. It would not just demolish carceral logic but the logic of liberal freedom as well. Thus, this becomes a space of a contradiction that cannot be resolved within the given terms and configuration of the rule of law, as the criminal justice system and its logics of carcerality are part of its foundation. This unresolvable contradiction animates the limits of liberal law as well as the authoritarian practices within its ambit, which it cannot undo as it needs them.

With these inbuilt contradictions in law and the judgements of the courts and the absence of application of minimum wage law, arbitrary criteria for deduction of maintenance costs and wages for prisoners have remained meagre till today (Kaur, Reference Kaur2021). As per the Prison Statistics of India, a prisoner in Maharashtra, Goa, Haryana, or Assam earns just about ₹70 (average) a day for skilled work, while their counterpart in Delhi makes between ₹194 (unskilled) and ₹308 (skilled). For comparison, the regular minimum wages in Delhi are ₹495 and ₹600; ₹307 and ₹417 in Goa; and ₹292 and ₹338 in Haryana, for unskilled and skilled labour, respectively. There are also no other standard protections against abuse and discrimination or any grievance redressal mechanisms related to labour in prisons.

I also want to note that while these judgements only speak to and about labour as part of the legal sentence, the same logic and reasoning apply to the labour undertaken by the undertrial prisoners and those sentenced to simple imprisonment. The imperatives for their labour are varied, from maintenance of prison discipline, reproduction of the prison, to the rhetoric of reform and rehabilitation, but the logic of punitiveness extends to them as well. They are also denied minimum wages and other protections under labour laws. To do otherwise would shake the coherence of the ideological reproduction of prison as punishment hinged on labour and demarcate it from “free” labour outside its boundaries.

The denial by law of constitutional protections for prison labour and rendering it outside the juridical category of work also invisibilises the value of this labour for sustaining prisons and the carceral power of the state. This invisibilisation is more acute in the case of women prisoners and makes them more vulnerable to discretionary and authoritarian carceral power. This is compounded by the fact that often women prisoners are abandoned by their families, both inside and outside prison (Bandyopadhyay and Mehta, Reference Bandyopadhyay and Mehta2022). Thus, the wages they earn in prison through long hours of labour often become their only mechanism of survival, making them completely dependent on the prison administration. I now turn towards some narratives of the everyday life of carceral labour of women prisoners in Tihar Jail, New Delhi, to demonstrate their negotiations with this double abandonment by law and family and the authoritarian control the prison holds over their bodies and labour.

5. Carceral life of women’s labour

Women prisoners are relegated to a marginal position in prison practice in India since the prison is organised with the “male prisoner as the archetype” and are often confined to smaller and more dilapidated barracks, with greater restrictions and discipline (Bandyopadhyay and Mehta, Reference Bandyopadhyay and Mehta2022, pp. 9–10). Further, owing to their small numbers (around 4% according to the Prison Statistics of India 2022), as well as their labour being confined to more reproductive tasks in prisons, women prisoners and their labour are doubly invisibilised. Through such divisions of labour, meanings and practices of gendered labour under capitalism are re-enacted and reinforced in prisons. Historically, this has helped to render the vast amount of reproductive labour done by women outside the idea of productive work and thus devalued and non-regulated by labour law (Federici, Reference Federici2004; Fudge, Reference Fudge2014).

In the penal context of post-colonial India, this has combined with the continuation of colonial policies; they are mostly engaged in the labour of cleaning, cooking, and working in different jail offices as servants (sevadars). Most jail industries producing goods are concentrated in men’s jails while most women’s jails have workshops for sewing, weaving, bakery units, and such so-called feminised tasks (Ministry of Child Development and Government of India, 2018, p. 19). Thus, the lives of women prisoners bring into sharper relief the abandonment by law and the resulting discretionary power of the prison administration over their lives as well as the devaluation of prison labour.

In this section, I begin with the story of Asha, who spent eight years (2016–2024) in Tihar Jail, New Delhi, both as an undertrial and as a convict. During this time, she did not remember a day when she did not work in the prison. A Santhal woman, hailing from Assam, a state in Northeast India, she had no family or friends/acquaintances in Delhi, and her family in Assam severed all contacts with her once she was incarcerated. Left to fend for herself while pregnant, she started helping in the work of everyday maintenance of the ward she was kept in, in return for some essential items from the prison canteen given by the ward Munshi (caretaker). Munshis, as they are colloquially referred to, are convict warders. They are invariably drawn from the convicted prisoners to assist the jail administration in managing prisoners and maintaining discipline. This system emerged in the colonial prisons owing to the lack of investments for employing prison guards from outside and subsidising the running of prisons through the labour of the inmates (Dimmers, Reference Dimmers2023). They occupy a unique position of power over other prisoners, helping the administration to determine who is a good prisoner versus a troublemaker, being able to extend certain privileges to some prisoners, like extra food, recommendations for certain jobs, or turning a blind eye to certain kinds of activities deemed illicit in prison. Simultaneously, they are also in a place of extreme vulnerability vis-à-vis the prison administration, as they are no longer in judicial custody. This means that they do not even have the nominal space of going in front of a judge and raising any grievance against the prison administration.

It worked like an informal arrangement between the inmates and the Munshi but with the knowledge and approval of the prison authorities. Such informal arrangements, either between the authorities and inmates or among inmates, perform the important function of providing inmates with work for their bare minimum sustenance outside the scope of legal sentence while helping to reproduce the prison infrastructure and its everyday life. This informality also makes it completely outside the scope of any formal or legal regulation, depressing wages or remuneration even further.

Once her child was born, she could not leave her child behind to go to work, but this was when she needed to work the most to support herself and the child. She started selling a portion of the special diet being provided to her as a lactating mother to other inmates in exchange for items from the canteen that she required. When caught, she was taken to the Jail Superintendent’s office. When she explained her abject reasons for selling her diet, the Superintendent, also a mother, was sympathetic and asked the matrons in charge to give her some suitable work. She took it up eagerly and used to carry her child with her to do the work assigned to her. Since that day, till her last day in prison, she was always working and doing multiple jobs, from cleaning the wards, toilets, offices, and medical room to being a convict warder, to sustain herself and her child. She never refused any kind of work and thus became an ideal inmate liked by all the prison officials. The uncertainty about what kind of work women get, or how much they might earn, is compounded by having to constantly prove themselves to be ideal workers in the eyes of the prison authorities.

Her wages ranged from ₹50 to ₹190 per day in the whole period of her incarceration. With these wages, she sustained herself and her daughter and saved for her future by depriving herself of any “luxuries” or buying anything for herself, like clothes or food items apart from the bare minimum necessities. When I asked her about the adequacy of the wages she was given, she quipped, “it is not adequate but what else can you expect in a prison.” Whatever savings she had gathered went into paying her bail bonds, as she had no one else to support her. Having lost all her identity documents and now burdened with the stigma of incarceration, she has not been able to find any decent work after coming out of prison. Asha’s life after prison was complicated by the abandonment she faced from both family and the law. She did not have kinship networks to go back to, nor documents to certify her as someone who could be hired to do work. The prison labour did not “empower” her with any skills she already did not have to join the labour market.

The claims of the state and law about prison labour as a form of rehabilitation for prisoners remain a monumental failure. This is evident in the story of Shweta, a young Dalit woman in her 20s from the state of Uttar Pradesh, incarcerated for about six years (2018–2024) as an undertrial prisoner in Tihar Jail. During these six years she was in prison, Shweta mostly worked in prison offices as a sevadar (helper), getting between ₹ 3000 and 4000 per month. I asked her why she chose to work despite being an undertrial, since it is not mandatory for them to work. She told me that she did not know of the distinction between mandatory and voluntary labour in prison, assuming it is a part of the punishment of being in prison and compulsory for everyone to do. Hence, when she was told by the prison staff that she should take up some work to pass her days, she did it thinking it was mandatory. Although she realised that it was not compulsory after a couple of months, she continued to work since she confided in me that working was the only way she could survive prison emotionally and physically. And by earning enough to survive in prison, she would not be a burden on her family.

Shweta started working in the UT/CT office (where all the police and court records of prisoners are kept). She used to work from 7 am in the morning till around 9.30 pm in the evening, with about one hour for breakfast and lunch in between. Thereafter, she worked in the Superintendent’s office as a sevadar from 9 am to 7 pm, but without any break. Her schedule was entirely dependent on the Superintendent’s schedule and movements. In this sense, the working hours were arbitrary and varied day to day. During the COVID-19 pandemic, she worked in the stitching centre of the prison, stitching masks that were sent to other prisons and bought by NGOs as well, without any wages. Using prison labour to make masks during the pandemic, without any remuneration, was a widespread phenomenon (Nigam, Reference Nigam2020), indicating the status of prisoners as a captive labour force. After a brief period of interim bail granted during the pandemic, she resumed work in one of the prison offices until she was released on regular bail in 2024.

The wages Shweta received for her work were just about enough for survival in prison but not equivalent to the number of hours she clocked, which ranged from 8 to 12 hours per day, nor commensurate with the nature of work she did, and nowhere near comparable to the same amount of work done outside prison. The “carceral salary” did not compensate for “overtime,” nor did it allow leave with pay. In fact, the concept of overtime does not really exist in prison. The Prison Act of 1894 and the Delhi Jail Manual state that no prisoner shall be “kept to labour for more than 9 hours in any one day.” I asked Shweta if there was any mechanism of recording the number of hours the labouring prisoners put in. There was no such mechanism of clocking prison labour. Shweta said, “in prison, no matter the actual number of hours of work you do, you are given salaries according to the number of hours fixed by prison authorities for a particular task. This makes it impossible to ground the claims for overtime or its compensation. … you also only get to know what you will get, at the end of the month when the salary is deposited in your account.”

I now turn to the account of Dipali, a 33-year-old Christian woman from the state of West Bengal. She was incarcerated in 2015 and spent nine years as an undertrial prisoner in Tihar Jail. After the initial two months spent in what she characterised as “tension” and “depression,” Dipali started working in what was called the flower factory in prison, run by an NGO whose name she could not remember. She, along with other female inmates, used to make small plastic flowers. For one packet containing around 80 flowers, she was paid ₹ 30. Working from 9 am to around 6 pm with half an hour’s break for lunch, she used to make two-three packets a day. There is a lack of clarity on whether such NGOs or private corporations using prison labour ought to pay the wages determined by prison authorities or if they can determine their own wages. In a newspaper article on the private sector in prisons, a prison official is quoted as saying that “even though companies are less wary of their association with prisons today, calling it their CSR, jail authorities know they still have to tread lightly. If we strike too hard a bargain on remuneration, companies will stay away” (Rebello, Reference Rebello2016). This seems to indicate that it may vary from prison to prison, depending on the terms of the bargain between the prison and the company or NGO. The entry of private entities in prison labour programmes with such murkiness around their terms of engagement speaks of the entrenching of neoliberal rationalities in governing prison labour, making the prisoners more vulnerable to their whims.

Now afflicted with chronic pain in her hands, she asked to be shifted to some other work. After a few months, she was shifted to the weaving centre run by another NGO, where she worked for the next two years, weaving caps and purses with crochet. For this work, she was paid ₹35 per day for working from 9 am to 5 pm. The pain in her hands persisted, and after a few months, she was employed as a cook in the jail crèche run by the same foundation. She used to work for nine hours, from 7 am to 5 pm, for a sum of ₹ 1300 per month. When the creche closed during COVID-19, she got employed as a Sevadar, an office helper, in one of the offices in the prison. Her job was to serve food and tea to the jail staff and clean the office. Unlike the crèche, her workday started at 9 am. However, although the official work was supposed to end at 5 pm, she would often be asked to work for a couple of hours more. Like Shweta, Dipali too was paid only for eight hours. By this time, there had been a wage revision, and she earned ₹ 4500 per month. Such wage revisions happen, at least in the case of the state of Delhi, according to the revision of minimum wages from which, after deducting maintenance charges and victim compensation, prisoners’ wages are determined. These revisions, importantly, have often occurred as a result of cases filed by prisoners for their actual implementation (for instance, see Indulia, Reference Indulia2020).

She kept doing similar kinds of work in various prison offices for the same salary till the time she was released on bail in 2024. Her salary was enough for survival in prison, for buying everyday items from the prison canteen, and for paying the phone bills, but she could not even think about making some substantial savings for hiring a lawyer or saving for her post-release life. Like many other women inmates, she depended on the overburdened state legal aid system and, perhaps therefore, spent around nine long years in prison as an undertrial. Now back at home, she is struggling to restart her life and relationships, with no “skills” learnt in prison.

Pushpa, born in a “lower caste” family (her own identification) in the state of West Bengal and trying to earn her livelihood in Delhi, shifting between various jobs, was incarcerated in Tihar Jail in 2023 and spent around a year as an undertrial prisoner. Around the time she was incarcerated, an NGO set up a handloom weaving unit in Tihar Women’s Jail. Being trained in weaving handloom sarees since childhood, as it was her father’s vocation, Pushpa was excited to join. After working there for a month, she discovered that she would be paid ₹300 for weaving one saree that took around a week for her to make. Having done the work earlier and knowing its value in the market outside prison, she refused to continue this work. Since she knew the craft, she was seen as a huge asset for the centre, and they did not want to lose her. After she refused to continue to weave, the NGO started coercing her to continue working by threatening to file a complaint against her for misbehaviour. A complaint of misbehaviour was made, which is a broad enough and arbitrary category, often used by prison staff to punish prisoners for any kind of behaviour not liked or seen as unruly by them. Undeterred, she refused to work, and a complaint of misbehaviour followed. Refusal to work warrants punishment under the Jail Manual but only in the case of prisoners convicted with rigorous imprisonment. Being an undertrial, Pushpa could not be punished for this.

Pushpa told me that she was most angry by the fact that “those people (running the centre) pretended to be “Sadhus” and still lied and exploited women, making them work so much for a pittance, while asking the inmates to be pure. If you are working there, you cannot even have an egg. They did not even let women work in the centre while menstruating but would deduct wages for those days.” The enforcement of such arbitrary rules over and above the prison rules by this NGO attends to how women’s bodies and labour are subjected to even sharper exploitation and disciplining by the neoliberal logics of governing prison labour. Infuriated at the way her labour was exploited as well as controlled by corporeal ideas of purity and pollution, Pushpa, however, could not formally state the grounds of her refusal to work for this NGO.

When summoned to the Superintendent’s office, she pleaded before the “madams” and showed them an injury to her hand that would hamper her work on the handloom. Owing to her being a “disciplined” inmate and of “good behaviour,” the Superintendent did not force her to continue working there. She was then employed as a sevadar in one of the offices. This entailed running around the whole day, making photocopies and getting the paperwork to different offices, apart from cleaning the office and getting food and tea for the staff. Sometimes she would not even get time to have lunch. Yet, according to her, this was better than working in the handloom centre—it made her “pass her day.” Hence, we learn that resisting work can have punitive consequences, even for an undertrial prisoner who is not legally mandated to work as part of the sentence. Here, though, Pushpa could negotiate her way out of a punishment by performing the “ideal” prisoner and taking up another kind of work. Thus, both punishment and escape from it get coded in terms of labour.

These narratives of women prisoners speak of their survival amidst extreme vulnerability. They sharply demonstrate the double abandonment of women prisoners by the law and society, resulting in an abject lack of protections and safeguards for them vis-à-vis the prison administration or private employers of their labour. Such abandonment leaves them with only informal mechanisms and negotiations with those in power for survival. This, in turn, hinges on their demonstration of being the “good” and “disciplined” prisoner through their labour and obedience, cementing their subservience further. These narratives ask us to bear witness to their reduction to “bare lives,” not despite the liberal law but within it, tolerated if not always sanctioned by it.

Read along with the ambiguities and contradictions generated by the place of carceral labour in law, they also tell us how the labour of prisoners is essential for the reproduction of prisons themselves. Prison labour, as punishment (legally mandated or imposed by the imperatives of prison life) and as profit for the prison and private entities employing prisoners, as a means of discipline, sustains and reproduces the everyday life of carcerality. They show us how the carceral power of the state, enforced through law, is literally built on the control of bodies of prisoners and the devaluation of their labour, doubly so of women prisoners.

The stranglehold of such carceral power over women prisoners’ bodies and labour was tightened to a choking point during the pandemic. This was done through a series of measures taken by the prison authorities to deal with the COVID crisis, involving enclosing (through quarantining), partitioning (transferring prisoners to other prisons), and ranking (identifying prisoners who could be released based on their offence background) (Raghavan, Reference Raghavan2020). This was the time that I was incarcerated as well. The bare minimum movement allowed inside the prison was also completely restricted. Many women who had been in prison for a long time used to say that “the jail never used to feel like jail to this extent before” (“jail kabhi itni jail nahi lagi thi”). With courts shut and many facilities like jail mulaquats (meetings), phone calls suspended, the bare minimum contact of prisoners with the outside world was broken. The control of the prison authorities over all aspects of prisoners’ lives was intensified along with the threat of direct violence as the rest of the world almost disappeared. In the peak of the second wave of the pandemic, expressing the desperation, anguish and abandonment we all felt, a prison mate said “it feels like we are in a grave, no sound can go out, neither can any be heard inside” (“lagta hai kabr mein aa gaye hain, na koi awaaz bahar jaa sakti hai, na koi awaaz andar aa sakti hai”).

I have already noted the use of prisoners’ labour for making masks and sanitisers during the pandemic without any remuneration. This was combined with the use of prisoners as “volunteers” for assisting health professionals, who were already very few (Raghvan, 2020, p. 3) in dealing with the crisis. This was un-remunerated work, which also endangered their bodies to the virus, as they were given no protective gear or any other medical facility. For women prisoners, this was also seen as an extension of their care duties and thus easily cast outside the category of work. It was a call of duty. Thus, their bodies could be isolated, restricted, or used for particular kinds of labour at the whims of the prison administration. This hyperpenality was enacted on women’s bodies in the name of security and protection from the pandemic, while making them more vulnerable to it. Evidently, none of these measures actually prevented the spread. In fact, Tihar Women’s Jail recorded the highest number of infections among all Delhi jails (Taskin, Reference Taskin2021).

These devastating consequences of detention on women prisoners during the COVID-19 pandemic unfolded at a time of expansion of “the enduringly unequal citizenship of variously marked citizens” (Jayal, Reference Jayal2022, p. 7) in the country. The hyperpenality mingled with the logic of hyper-nationalism and majoritarian shifts witnessed by the nation during this time. The High Powered Committees (hereafter, HPC), instituted by the Supreme Court for the decongestion of prisons, absorbed the logic of majoritarian politics and national security through its exclusion criteria (Baxi, Reference Baxi2025, pp. 195–96). Reproducing this logic, it excluded the undertrials accused of offences under cases of the “Anti-National Activities and Unlawful Activities (Prevention) Act,” “etc.,” from the benefit of interim release. The use of the term “anti-national” in the HPC criteria did not belong to the language of the penal code or special laws, nor was it questioned by the courts (Baxi, Reference Baxi2025, p. 197). Moreover, the combining of “anti-national activities” with the terror law and its use to deny protection from the pandemic to certain prisoners demonstrates how the logic of the majoritarian turn of the state determined which bodies deserved to be protected and which bodies could be discarded by law.

The extraordinary experimental violence and hyperpenality of COVID-19 protocols became the ordinary life in prisons (see Kalita in this SI), while penal labour was mandated to be increasingly extracted not just for state use but for private capital as well (“Ministry of Home Affairs, Government of India, 2023, Model Prison Manual, pp.170–172). This further entrenches its exploitative nature as the private players can impose their own set of rules over both wages and prisoners’ bodies, with even sparser mechanisms of accountability. For women prisoners, this architecture of hyper control by carceral structures of state and capital translates into compounded vulnerabilities and further subordination of their labour to gendered hierarchies.

Simultaneously, we are witnessing the extension of the penal logic of labour to even bail conditions. Recently, trial courts and even the High Court of Orissa made un-remunerated labour, which also reinforces caste and gender hierarchies, as part of the bail conditions of accused persons (Dasarathi, Reference Dasarathi2025). Bail is doctrinally supposed to be a measure of granting and protecting personal liberty and freedom of the accused before trial and not to impose punitive measures. This ironic imposition of labour by the courts, not as punishment but as a condition of freedom itself, becomes another iteration of authoritarian power and the structural contradictions of freedom under liberal law, animated by penal labour.