Guest Post: Delhi HC Decriminalises Begging – An Outlier or the Start of Nationwide Reform?

Tags

arbitrariness, begging, criminal law, dignity, right to life

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

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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.

 

Guest Post: The Bombay High Court and a Graded Constitutional Right to Water

Tags

article 21, right to life, right to water

(In this guest post, Mansi Binjrajka and Avani Chokshi examine a Bombay High Court decision on the “right to water” under Article 21, and its discontents.)

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Last year, the Bombay High Court passed an order, which was much applauded for declaring the right to water (RTW) to be implicit in Article 21. The case involved the issue of whether the Mumbai Municipal Corporation (hereinafter ‘MMC’) was obligated to supply drinking water to the occupiers of illegal slums in the city per Art. 21. The Court held that regardless of the illegality of their tenements, the occupiers of illegal slums have a RTW. The Court however held that this right would not be at par with the RTW of citizens living lawfully. It directed the state to formulate an appropriate policy for the supply of water to these slums.

In 1996, the state government issued a circular (hereinafter ‘1996 circular’) aimed at curbing the growth of slums by denying supply of water to such illegal constructions. Another resolution was later passed regularizing slums constructed before January 1, 1995 (a date which was later extended to Jan 1, 2000) and enabling them to avail rehabilitation under government schemes. Another challenge was to Municipal Corporation Rule 6.9 which said that water connections would be provided only to regularized slums. The cumulative effect of this was that slums constructed post 2000 would not receive water from MMC. The petitioner filed a PIL before the Bombay High Court challenging the validity of the 1996 circular and Rule 6.9.

The main contention of the petitioner was that by halting water supply to post-2000 slums, the 1996 circular and Rule 6.9 were in violation of Article 21, since RTW is included within its ambit. The state defended the validity of the policy, noting that it aimed at discouraging the growth of slums.

The existence of the fundamental RTW within Article 21 was the main issue in this case, one that the judgment merely glossed over. The judgment confirms the existence of this right by merely mentioning two previous cases of the Supreme Court, which recognize the same. However, the Subhash Kumar case spoke about a right to pollution free water and not supply of water. Also, the Chameli Singh case does not even deal with RTW explicitly; it only mentions it in passing. Thus, neither of the two cases relied upon had “categorically held that right to live guaranteed in any civilised society implies the right to…water…” as asserted in the judgment. There exist other decisions of the Supreme Court that are more suitable to the facts of this case. In A.P. Pollution Control Board v. Prof. M.V. Nayudu, the Court declared access to drinking water a fundamental right and recognized the consequent duty imposed on the State. In Narmada Bachao Andolan v. Union of India, the Court declared that the unavailability of drinking water is a violation of both Article 21 and international human rights commitments.

Neither did the judgment extend the discussion on RTW beyond its recognition in Article 21, nor did it substantiate its finding. It could have used Article 47 to derive RTW, as was done in Hamid Khan v. State of Madhya Pradesh. Since the facts of this case related to supply of water, which necessarily requires action on the part of the state, the Court could have emphasized the fact that RTW is a positive right while elaborating on the state’s duties with regard to the same. No decision has outlined the contours of RTW till date and neither does India have legislation on drinking water, which would help determine the contents of RTW. This lacuna could have been addressed by the judgment.

While recognizing RTW, the Court held that the occupation of an illegally constructed hut is not a sufficient ground for its denial to a citizen. However, the Court used the very same ground to declare that the illegal occupants “cannot claim a right to supply drinking water on par with a right of a law abiding citizen”. In pronouncing this limitation, the Court seems to have neglected the fact that the Constitution requires a “procedure established by law” or in other words, the presence of an enacted law, to restrict Article 21. The question thus arises: how did the Court hierarchise the degree of RTW available to different citizens without the backing of a procedure established by law? It is clear that the conclusion attained, that the fundamental right to water for one category of citizens is sub-par to that of another category, is fallacious. The judgment did not stop here; it also allowed MMC to charge a higher rate for water supply to illegal slums.

It seems like the Court attempted to appease both parties before it – by recognizing RTW for the petitioner and by limiting it in order to give the state sufficient leeway while keeping in mind the state’s submission with respect to discouraging illegal occupation of public property. However, is restricting a fundamental right the correct way to do this? The judgment took note of sections of the Mumbai Municipal Corporation Act, 1888, which impose a legal obligation on Designated Officers to prevent the construction of illegal buildings. It also recognized the omission on part of the state to provide affordable housing. However, it did not stress on these points. Instead of creating unequal rights for two groups of citizens, the Court could have adopted a duty-based approach and directed the government to discharge its obligations under the Corporation Act effectively. The Court should have reprimanded the state for failing to fulfill its duty directly and instead resorting to an indirect way of discouraging slums by restricting water supply.

The petitioners brought to the notice of the Court that MMC was providing water on “humanitarian grounds” to one set of illegal occupants – those who were residing in buildings with no occupation certificates. In light of this, the refusal to supply water to illegal slums could have been criticized on grounds of violation of Article 14. Applying the test evolved in West Bengal v. Anwar Ali Sarkar, it may be possible to argue successfully that an “intelligible differentia” exists between the building and slum occupiers; however, in no scenario can it be said that the difference created bears a rational nexus to MMC’s object. If the MC’s objective was the supply of water on humanitarian grounds, then this object would have better been served had the supply of water been sanctioned for the residents of illegal slums, considering their lower economic class. Here, benefits were given to a certain category of people on arbitrary grounds. This rather blatant breach of Article 14 was within the notice of the Court and noted upon; however, the court chose to let the MC’s approach pass without reprimand. This inertia on the part of the court to take cognizance of the contravention of a fundamental right reveals an even greater injustice than its fallacious restriction on the right to water.

It had also come to light that MMC was supplying electricity to the illegal slums; another fact that clearly vitiates their main submission of preventing illegal constructions in the city and casts a shadow on their intention. However, the judgment failed to address this issue.

The judgment also directed MMC to formulate a policy for the supply of water “to those who are occupying such slums for residential purposes”. However, it provided no reason for creating this distinction between residential purposes and other purposes. Further, does this mean water will not be supplied to those occupying slums for non-residential purposes? Also, the court merely issued a direction to MMC to formulate an appropriate policy for the supply of water to the residents of unauthorized slums erected after 2000, instead of using its power of judicial review to develop a set of interim instructions for the period until this formulation. While the State was instructed to formulate a policy by February 2015, no policy has been formulated yet (July 2015).

After a threadbare reading, we conclude that this is a judgment of missed opportunities. The Court was given the chance to address the lacuna that exists with respect to RTW. However, instead of taking initiative, the Court gave a meek response to the weighty issues placed before it. In trying to balance the interests of the state and the people, the judgment has done more damage than good. The little progress that it made by recognizing RTW has been undermined by the subsequent appalling limits imposed on it. Also, what is most troubling is that the judgment is in violation of the Constitution by limiting Article 21 in the absence of legislation. It has never been the judiciary’s prerogative to limit the availability of the Fundamental Rights enshrined in Part III of the Indian Constitution. It failed to identify the contradiction in MMC’s actions and its submission that it was doing its best to discourage illegal occupation of property. Due to the tentative and hesitant attitude of the court, there was no in-depth discussion or full-fledged recognition of a right, and a potentially landmark judgment lost its edge.

(The writers are students at the National University of Juridical Sciences, Kolkata)