In a landmark judgement, the Delhi High Court on Wednesday struck down as unconstitutional certain provisions of a law that criminalized all forms of begging.
In a case filed in 2009 by social activists Harsh Mander and Karnika Sawhney, a bench of justices Gita Mittal and Hari Shankar struck down provisions of the Bombay Prevention of Begging Act, 1959 (extended to India’s capital Delhi in 1960), that mandated the arrest, trial and imprisonment of those caught begging.
The court found the provisions violative of the Fundamental Rights to equality, freedom of speech and expression and the right to life guaranteed by India’s constitution.
“People beg on the streets not because they wish to, but because they need to. Begging is their last resort to subsistence, they have no other means to survive … If we want to eradicate begging, artificial means to make beggars invisible will not suffice … 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,” said the judgement by Acting Chief Justice Gita Mittal.
The court held that criminalizing poverty was a gross violation of the most basic human rights, a grave travesty of justice, and should not have any place in a country with a democratic constitution. The court also directed that all beggars facing prosecution and undergoing incarceration should be set free by the courts hearing their cases.
The court did not strike down the entire law, however, because it contains certain provisions that penalize organized criminal gangs profiting from the proceeds of begging.
Criminologists and social scientists have pointed out how the Bombay anti-begging law was rooted in the prejudices which India’s colonial masters – the British – had against the poor, destitute and mendicants. Research has shown that even members of itinerant tribes, who earn their livelihoods from street performances, are being driven off the streets and into correctional institutions because of laws which make any form of begging a crime in 20 states and two union territories in India.
Sections of the Delhi law that defined begging made no distinction between voluntary and involuntary beggary, and also snared vagrants and daily workers who could not show proof of having a permanent residence to call home. They also made no distinction between religious practitioners seeking alms to fulfill the obligations of their faith and those who beg out of laziness.
Law and poverty scholar Usha Ramanathan said in her observation the police and magistrates often labelled people as beggars because they were “ostensibly poor” or could not furnish proof of having a stable income. The high court found that such a sweeping definition, and the way it was being enforced, violated people’s fundamental rights to equality and equal treatment under the law.
Laws criminalizing poverty have come in for severe criticism, not only in India, but also in other countries. The Indian judiciary has often been criticized for holding a prejudice against the poor and has often referred to them in a dehumanizing manner.
Violation of the right to life
In its decision, the High Court went by a judgement given in 2006 which took a humane view of beggars and held that soliciting alms, so long as it is done for altruistic purposes, or for fulfilling religious obligations, was a form of expression protected by the Indian constitution’s free speech clause.
The 2006 judgement followed the US Supreme Court’s ruling in The People of the State of New York v Eric Schrader (1994) where it was held that even if begging was an expression of free speech protected by the First Amendment, it would still be a crime if a person was to stretch his hat out because he had no other source of income.
It was this criminalization of enforced poverty, unemployment and homelessness to which the high court turned its attention next.
Certain provisions in the Delhi law mandated stringent punishment for anyone caught begging. The police were allowed to round up entire families and seize property and magistrates could send the guilty to jail for 10 years and order the detention of a person for an indefinite period until the authorities could conclusively determine if he or she was a beggar.
The offense of begging was also cognisable, meaning that the police could arrest anyone without a warrant, even on mere suspicion, without a complaint being lodged. It was also non-bailable, and as happened a few years ago in Delhi, magistrates sat in mobile courts – minibuses – and sentenced people who were rounded up to detention after only summary hearings.
There are no consolidated reports on the conditions prevailing at the institutions where beggars are confined. However, as Ramanathan points out, in many remand homes in Delhi, the inmates are made to live in unimaginable squalor.
The court found all these facts unconscionable and in flagrant violation of the fundamental right to life guaranteed by Article 21 of the constitution.
The judges said the government, by criminalizing begging, was only trying to cover up its own glaring inadequacies and faults, and that “artificial means to make beggars invisible will not suffice … 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.”