Relevance: GS Paper II
Why has this issue cropped up?
The Bombay Prevention of Begging Act was passed in 1959 by the State of Bombay, and has continued to exist in as many as 20 States and two Union Territories. But last week, in a remarkable, landmark and long overdue judgment, the Delhi High Court struck it down as inconsistent with the Constitution.
What does the Begging Act do?
- It criminalises begging. It gives the police the power to arrest individuals without a warrant.
- It gives magistrates the power to commit them to a “certified institution” (read: a detention centre) for up to three years on the commission of the first “offence”, and up to 10 years upon the second “offence”.
- Before that, it strips them of their privacy and dignity by compelling them to allow themselves to be fingerprinted.
- The Act also authorises the detention of people “dependant” upon the “beggar” (read: family), and the separation of children over the age of five.
- Certified institutions have absolute power over detainees, including the power of punishment, and the power to exact “manual work”. Disobeying the rules of the institution can land an individual in jail.
Problems with the Begging Act
- First, there is a definition of “begging”. The Act defines it to include “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” and “having no visible means of subsistence and wandering about or remaining in any public place in such condition or manner, as makes it likely that the person doing so exist soliciting or receiving alms.” Not only do these vague definitions give unchecked power to the police to harass citizens but they also reveal the prejudices underlying the law.
- The pointed reference to “singing, dancing, fortune telling, performing or offering any article for sale” makes it clear that the purpose of the Act is not simply to criminalise the act of begging (as commonly understood), but to target groups and communities whose itinerant patterns of life do not fit within mainstream stereotypes of the sedentary, law-abiding citizen with a settled job.
- And the reference to “no visible means of subsistence and wandering about” punishes people for the crime of looking poor — but it also reflects the lawmakers’ desire to erase from public spaces people who look or act differently, and whose presence is perceived to be a bother and a nuisance.
- The Begging Act encodes into law the vicious prejudice that recently saw a prominent institution putting up spikes outside its Mumbai branch, to deter rough sleeping (they were removed after public outrage).
- Once individuals fall within its clutches, the Begging Act effectively renders them invisible, by confining them to “certified institutions” after a truncated, summary judicial procedure.
- Like the poorhouses of 19th century Europe, it is based on a philosophy of first criminalising poverty, and then making it invisible by physically removing “offenders” from public spaces. Effectively, it places a cordon sanitaire around the poor and the “undesirable”, keeping them from accessing spaces reserved for the use of “respectable” citizens. For these people, the constitutional guarantees of pluralism and inclusiveness do not exist.
- The authorities have not hesitated to use the Begging Act as a weapon. Just before the 2010 Commonwealth Games, the Delhi government was engaged in combing operations to take beggars off the street, lest their presence embarrass the nation in the eyes of foreigners. Such operations are also a regular part of preparing for national events, such as Independence Day and Republic Day.
The details of the Delhi High Court’s judgement
- In its judgment delivered last week, the Delhi High Court held that the Begging Act violated Article 14 (equality before law) and Article 21 (right to life and personal liberty) of the Constitution.
- The government conceded that it did not intend to criminalise “involuntary” begging. The High Court noted, however, that the definition of begging under the Act made no such distinction, and was therefore entirely arbitrary.
- More importantly, it also held that under Article 21 of the Constitution, it was the state’s responsibility to provide the basic necessities for survival — food, clothing, shelter — to all its citizens.
- Poverty was the result of the state’s inability — or unwillingness — to discharge these obligations. Therefore, the state could not turn around and criminalise the most visible and public manifestation of its own failures — and indeed, penalise people who were doing nothing more than communicating the reality of their situation to the public.
Conclusion
Poverty is a systemic and structural problem. The Delhi High Court has done its job in striking down a vicious law that criminalised poverty. But it is the task of the Legislative Assembly and the government to replace the punitive structure of the (now defunct) Begging Act with a new set of measures that genuinely focusses on the rehabilitation and integration of the most vulnerable and marginalised members of our society.
