Yesterday, Abhinav Sekhri provided an excellent overview of the Delhi High Court’s landmark judgment striking down (most provisions of) the Anti-Beggary Act (Harsh Mander v Union of India). As Sekhri pointed out, the provisions of the Anti-Beggary Act (first enacted by the state of Bombay in 1958, and then extended to twenty states and two union territories) effectively criminalised status through an extraordinarily broad definition of “begging.” They also established a system of “Certified Institutions” that were little better than detention centres.
Sekhri correctly observes that the High Court’s judgment was facilitated by only token opposition from the Delhi government. Perhaps unfortunately, this also appears to have limited its scope. The decision is, ultimately, based on narrow grounds. But perhaps more troublingly, it is also based upon a distinction between “voluntary” and “involuntary” begging that obscures the vicious, colonial logic that underlay the entire family of laws that the Anti-Beggary Act was a late, post-colonial entrant into (such as the Criminal Tribes Act, and various vagrancy statutes). Nonetheless, that does not take away from how important this judgment is. It is, in its own way, as transformative as the first Naz Foundation judgment of the Delhi High Court, and I share Sekhri’s guarded optimism that it can be the starting point for a long-overdue reckoning with some of the worst and most enduring legacies of colonialism in our criminal legal system.
The first ground employed by the Court for striking down the law was Article 14. Interestingly, this was based on a concession by the Government. The Government took the stand that the Act did not intent to criminalise involuntary begging (i.e., begging attributable to factors such as poverty). If that was the legislative purpose, however, then the provisions of the Act were irredeemably broad. The five-pronged definition of “begging”, for example, read as follows:
(i) “begging” means—
(a) soliciting or receiving alms in a public place, whether or not under any pretence such as singing, dancing, fortune-telling, performing or offering any article for sale
(b) entering on any private premises for the purpose of soliciting or receiving alms ;
(c) exposing or exhibiting, with the object of obtaining or extorting alms any sore, wound, injury, deformity or disease whether of a human being or animal ;
(d) having no visible means of subsistance and wandering about or remaining in any public place in such condition or manner, as makes it likely that the person doing so exists by soliciting or receiving alms ;
(e) allowing oneself to be used as an exhibit for the purpose of soliciting or receiving alms.
As the High Court correctly noted, the definitional clause made no distinction between “voluntary” and “involuntary” begging, and also brought in homelessness within its ambit (paragraphs 16 – 18). And it is well-settled that an unconstitutional statute cannot be rescued through a promise on the part of the State to implement it fairly. The law, therefore, clearly violated Article 14, and was accordingly struck down by the High Court on grounds of arbitrariness.
I am, however, slightly bemused about why the High Court chose to adopt the more contentious and unsettled “arbitrariness” test under Article 14, in a case where the traditional classification test was so clearly applicable. The over-inclusiveness of the definitional section in a case where the Government had itself conceded the legislative purpose was so patent, that even under the deferential rational review standard, the Act could not have stood.
Sekhri argues that the Court did not go into issues of Article 19(1)(a). That conclusion, however, might be a little too hasty. While there is no fleshed-out Article 19(1)(a) analysis, the Court did not – in paragraph 31 – that “criminalising them [i.e., persons accused of begging]denies them the basic fundamental right to communicate and seek to deal with their plight.” While this does not go as far as stating that criminalising begging is per se contrary to Article 19(1)(a) because it interferes with an expressive activity without justification, it does at least recognise the Article 19(1)(a) interests involved.
The Court then found that the summary detention provisions of the Act violated Article 21’s due process guarantee. The Union of India argued that detaining individuals was necessary in order to find out whether they were begging voluntarily or involuntarily. This, as the Court correctly noted, entailed that the police “would be arresting persons who may be subsequently found to have not been begging, thereby, depriving such persons of their liberty without following any process of law.” (paragraph 20)
Furthermore, the Act – as a whole – contravened the more substantive guarantees under Article 21 as well. Criminalising begging – as the Court noted – effectively made individuals liable for the State’s failure to provide the basics of a dignified life (food, shelter, clothing, education) as envisioned by Article 21 (paragraphs 28 – 29). The Court observed:
A move to criminalize [persons accused of begging] will make them invisible without addressing the root cause of the problem. The root cause is poverty, which has many structural reasons: no access to education, social protection, discrimination based on caste and ethnicity, landlessness, physical and mental challenges, and isolation.
The Court concluded by noting that if the State wanted to bring in a law to penalise forced begging, it could do so after conducting appropriate empirical studies.
While the basis of the Court’s judgment was a distinction between compelled and voluntary begging (note that this was because the State itself had conceded that it was only concerned with criminalising “voluntary begging”), this final observation suggests that, ultimately, what the State can legitimately criminalise is a situation where individuals are coerced or forced into begging through organised or unorganised “rackets.” Sekhri correctly worries that the judgment does not go into the question of the limits of the State’s power to criminalise status; however, the concluding observations suggest, at the very least, that the conversation is heading in that direction.
This brings us to the silences in the judgment. The most glaring silence relates to the definitional section. Recall that S. 2(1)(a) defines begging as “soliciting or receiving alms in a public place, whether or not under any pretence such as singing, dancing, fortune-telling, performing or offering any article for sale.” S. 2(1)(e) defines it to include “having no visible means of subsistance and wandering about or remaining in any public place in such condition or manner, as makes it likely that the person doing so exists by soliciting or receiving alms.”
At one level, of course, these sub-clauses reveal the classist character of the legislation. The law envisions public places as exclusionary, closed off to those who look poor. It is a sanitised vision of the public sphere, built upon keeping out the undesirables, those who “are not like us.” Indeed, it is the legislative equivalent of shops putting up spikes outside their doors and windows to prevent rough sleeping.
There is, however, a deeper logic running through these provisions, which is specifically visible in the underlined parts. Notice that the definition of “begging” is (consciously made) so broad, that it covers not just an activity (say, “soliciting for alms”), but entire ways of life. What unites these ways of life (singing, dancing, fortune-telling, performing) is their itinerant character. 2(1)(e) makes it clear when it uses the bizarre phrase “wandering about.” This gets to the heart of the phobia driving these laws: the fear of shifting populations whose changing movements and patterns makes them “invisible” to the administrator, and therefore, harder to classify, categorise, control, and (yes) extract tax from.
The “taming” of such individuals, groups, and communities was central to the colonial project, both in India and elsewhere. By associating them with hereditary criminality, the British stigmatised and (virtually) enslaved entire nomadic communities by bringing them within the ambit of the vicious Criminal Tribes Act. The myth of “thuggee” (a word still found in the IPC) was employed to the same end. Through vagrancy laws, the British made it impossible for itinerant lifestyles to remain outside the net of punitive legislation. All of this was driven by the imperative to ensure a “settled” population that could be disciplined and taxed with ease.
It is trite to say that post-colonial legal logic has, more often than not, replicated this model. The laws of the colonial regime have been turned by post-colonial administrators upon their own people. The Criminal Tribes Act was repealed in the 1950s, but (as we have seen) other laws live on: from the Habitual Offenders Act to vagrancy statutes to the Anti-Beggary law to various sections of the IPC. It is this that makes the Delhi High Court judgment so important. Even though these issues are not addressed in the judgment itself (and for good reason, because the State itself abandoned that justification), the striking down of the Anti-Beggary Act is a powerful blow against the enduring shadow of colonialism in our legal regimes. It is now for other courts to take the logic forward.
During oral arguments in the recent Section 377 hearings, Justice Chandrachud made the observation that the Constitution is committed to the value of pluralism: that is, an affirmation that every individual has the right to self-determination when it comes to choosing ways of life, modes of faith and belief, and self-expression. I intend to address this point in a later post, but for now, I want to note that Chandrachud J.’s observation is perhaps more accurately understood as an aspiration for the future rather than an accurate account of our constitutional history. The colonial project was characterised by a homogenising drive that delegitimised plural forms of life, and established hierarchies between them. Our Constitutional era has not entirely transformed this reality. You see signs of it in the text of the Constitution itself, which assimilates Buddhists, Sikhs and Jains within the legal category of Hindus. You see further signs of it in the jurisprudence of the Supreme Court, which has repeatedly denied to dissenting traditions the status of independent religious. And of course, you see it in the web of criminal legislation (whether Section 377 or the anti-beggary laws) that is premised on stigmatising alternate ways of living.
The importance of the Delhi High Court’s judgment lies in how it can force us to reckon with this legacy, which is so deeply intertwined with our legal and constitutional system.
In conclusion, I think it’s important to note that the Delhi High Court elected not to go down the route of far too many constitutional challenges: uphold a clearly unconstitutional law, but issue unenforceable “guidelines” to soften the blow. The rise of PIL and the “good governance” Court has tended to make the judiciary often forget that its primary task is testing legislation for constitutional validity, and striking it down if it fails the test. In its administrative avatar, the Court has too often begun to act like administrators, focusing more on issues of implementation rather than constitutionality. Indeed, when the anti-Beggary Act was itself challenged before the Bombay High Court in 1993, the High Court established a “Committee” to look into the matter! Despite the Committee’s clear recommendation that the Act had to go, nothing happened. This is, of course, symptomatic of a wider issue, and it is truly refreshing to see that the Delhi High Court avoided falling into this trap.
A final observation. A couple of years ago, while inspecting a file in Patiala House, I came across a chargesheet that, while listing an individual’s particulars, listed “Residence: Vagabond.” The incongruity stuck in my mind, a reminder that the law is linguistically incapable of dealing with the range of issues in society, let alone addressing them in any meaningful way. Apart from all else, the High Court’s judgment is also an acknowledgment that you cannot “solve” poverty through arrests, detention centres, and courtrooms. It is a rare example of humility in a legal system that, too often, seems to lay claim to omnipotence.