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(This is a guest post by Abhinav Sekhri, cross-posted from The Proof of Guilt blog.)


Within the first decade of India becoming a constitutional republic, the erstwhile State of Bombay passed the Bombay Prevention of Begging Act, 1959 [“anti-begging law”]. This was extended to the national capital in 1960 and has been operational since 1961. Nineteen other states and another Union Territory followed suit, either with their own versions of the law or by extending the Bombay Act as well. Yesterday, a Division Bench of the Delhi High Court decided a 2009 writ petition challenging the constitutionality of several parts of the anti-begging law [Harsh Mander & Anr. v. UOI & Ors., W.P. 10498/2009 decided on August 8, 2018. Hereafter, “Harsh Mander”]. Central to the petition was a challenge to several provisions of the law which criminalised begging. On her last day in office as Acting Chief Justice of the Delhi High Court, Justice Gita Mittal delivered a judgment holding that these 25 provisions criminalising begging were indeed, unconstitutional.

The Crime of Begging and its Punishment

Before going forward, let’s take note of what was being criminalised. Begging. The statute defined it as “having no means of subsistence and wandering about or remaining in any public place in such condition or manner as it makes likely that the person doing so exists by soliciting or receiving alms.” It also defined it as “soliciting or receiving alms in a public place, whether or not under any pretence such as singing, dancing, fortune-telling, performance or offering any article for sale.” [Section 2] What happened to those found begging? They were to be taken off the streets and the law required they be sent to detention centres. Section 6 of the Bombay Act declared that persons found begging for the first time be detained for at least one year in a Certified Institution, which could extend to three years. Second-time offenders faced a mandatory detention period of ten years, with a possible prison sentence.

The state saw the main problem being addressed through the law as one of organised crime – rackets being run by rich people who forced people to beg for a living. The anti-begging laws were driven by a deterrence logic to put an end to these rackets. But, a look at the definition makes it apparent that it covered a very wide category of persons. It did not even need any specific act to invite criminality; dire poverty that was visible and witnessed in public places was enough. Thus, people were made criminals not because of what they did, but for showing the rest of us who they were. No matter: this is where the rehabilitative logic of the anti-begging law came in. Those who were deprived and forced to beg would be helped by the Certified Institutions. These Institutions were not prisons, but places offering vocational training to help make persons capable of providing for themselves without begging.

As with most laws, the main problems with the anti-begging law came in enforcement. The state did not attempt any systematic approach at solving the problem. Instead, the law became a convenient tool at the hands of law enforcement to clean up city spaces of people who “looked” poor, as had recently happened in Delhi before the Commonwealth Games in 2010. The people most often caught and brought before courts were rarely part of criminal gangs, but people forced to beg out of extreme poverty and lack of employment opportunities. Courts justifiably refused to institutionalise them by exercising pardon powers conferred by the statute [Section 5]. The Certified Institutions themselves had come to be mired in controversy over time. Social activists and researchers complained that detention centres were no better than prisons and had no functional vocational training facilities. The state disagreed, and instead complained that courts did not send convicted beggars to Certified Institutions to facilitate rehabilitation. Ultimately, in 50 years of being on the statute books in Delhi, neither the deterrent nor rehabilitative potential of anti-begging laws had been realised.

The Constitutional Case

The Delhi High Court decision of 2018 was not the first serious discussion on anti-begging laws in India. In an earlier paper, Usha Ramanathan documents significant parts of the advocacy against such legislation. She notes that Delhi was the site of serious debates on the validity and usefulness of this law in the 1980s, based on pioneering work done by a team at the Law Faculty of Delhi University. The team studied the operation of anti-begging laws to point out various problems in enforcement, arguing that it was doing much to harm rather than help the poor. Subsequently, a writ petition was filed in the Bombay High Court in 1992, challenging the constitutionality of the anti-begging law. A Committee was setup in pursuance of that petition, which conducted studied the law to recommend it be radically re-shaped, as those forced to beg “ought not to be treated as offenders of the law. They need a healing touch of the protective law, not the deterrence of criminal sanction.”

In Delhi itself, in 2006 a single judge of the High Court mused about constitutional arguments while deciding a revision petition in Ram Lakhan [137 (2007) DLT 173]. Justice B.D. Ahmed came down heavily against the order of the lower court challenged before him where the Metropolitan Magistrate had described the beggar as “raising his front paws” rather than hands. Justice Ahmed also tempered the force of the anti-begging law but could not rule on its constitutionality in revision proceedings. This did not stop him from discussing the topic, though, and he noted how criminalisation of begging seemed contrary to the right to freedom of speech and expression guaranteed under Article 19(1), as well as a clear violation of the right to life safeguarded by Article 21.

The Division Bench decision in Harsh Mander v UOI builds on these cues. It held the provisions criminalising begging contrary to Article 14 and Article 21 of the Constitution. It notes that failure to distinguish between voluntary and involuntary begging renders the classification arbitrary, the wide definition of begging made the law over-inclusive in scope, all of which made the provisions “manifestly arbitrary” and contrary to Article 14 [Paragraphs 14-19]. The Court then moves on to Article 21: detention of persons to “ascertain the cause of poverty” is held contrary to Article 21 [Paragraph 20]. This is followed by a long exposition of the “contours” of that right [Paragraphs 21-26], possibly to make the claim that as the state is responsible for alleviating poverty, criminalising it is not the right answer [Paragraphs 27-31]. Finally, it reiterates that legislation penalising persons “compelled” to beg is in the “teeth of Article 21” [Paragraph 33]. The Court also claimed another reason for reading down these provisions – the wastage of public funds as Certified Institutions were lying unused [Paragraph 39].

Notably, in striking down the several portions of the anti-begging law, the High Court faced no real opposition from the government – both the erstwhile Congress regime and the current Aam Aadmi Party government agreed that the law was outdated and could go. Perhaps this is responsible for the paltry reasoning on display in the judgment which could have just been a consent decree. I highlight two problems. First, the decision does not discuss Article 19(1) claim even though it was made before the Court. In doing so, does the Court indirectly support the idea of begging itself not being protected speech? By refusing to discuss the argument altogether, we are left to wonder. Second, there is much to be considered on the aspect imposing constitutional limits on criminalisation of conduct per se, as the Supreme Court had been considering recently in petitions challenging the validity of Sections 377 and 497 of the Indian Penal Code, 1860. As was discussed in context of the adultery hearings, the legal challenge can be solely based on arbitrary classifications, or can be about whether the underlying conduct should be criminal, and courts must be clear in how they treat these separate issues. The High Court does not provide this clarity, and its lack of analysis is even more problematic in light of the remarks made by the Court at the end, where it stated that a well-crafted legislation criminalising “specific types of forced beggary” and for curbing the “racket of forced begging” might survive constitutional scrutiny [Paragraphs 36, 46].

Conclusions

Compare this decision in Harsh Mander to the 2009 decision in Naz Foundation, where contested claims helped the Delhi High Court to fully explore various arguments, in a decision which continues to be celebrated for its visionary approach. Perhaps because there was no real contest at the bar, and the speed with which the verdict was delivered (the judgment was reserved on August 7), the decision in Harsh Mander does not scale the heights of Naz Foundation, and I highlighted how the High Court failed to fully discuss the legal issues at the heart of the case. Even so, the decision in Harsh Mander does share the truly awesome transformative potential that Naz Foundation also had. Since criminalisation of begging is done in 20 states, and the underlying legal provisions are either identical or nearly-identical to all of them, the Delhi High Court’s decision in Harsh Mander is poised to either stand out like a sore thumb, or spark nationwide reform. I sincerely hope it is the second.