Is Being Poor a Crime? : An analysis of Delhi High Court Judgement decriminalizing beggary laws in NCT region.

Picture Courtesy: http://dreamstop.com/beggar-dream-meaning-and-interpretations/

This article was written by Charitha K.P., a student of NALSAR, Hyderabad.  

Poverty has always been looked down upon by the society and has been labelled as a crime by the state. The government on one hand has from time to time declared war on the beggars and the ostensible poor on the other hand have never been able to win a single battle. There is no central law regulating the act of beggary in India but it is majorly governed by the Bombay Prevention of Begging Act, 1959 [1] which has been adopted by many states while some states have formed their own law. The government defends its stand on calling poverty a crime as the act was enacted in interest of public safety, decency and morality. The state has used this act as a weapon on the destitute as seen during the time of 2010 Commonwealth Games, when the Delhi government was combing the streets to take the beggars off the streets and dump them in so called rehabilitation centres as their presence affects the image and reputation of the nation in front of the world.[2] But on August 8^th, 2018, the beggars of NCT won their life battle when the Delhi High Court in Harsh Mander and Ors v Union of India and Ors decriminalised begging in the national capital calling it to be unconstitutional.

After hearing 2 PILs filed by Harsh Mandar and Karnika Sawhney, the Delhi High Court decided to decriminalise the act of begging in the national capital.[3] This landmark judgement has struck down around 25 Sections of the Bombay Prevention of Begging Act, 1959, which makes any form of begging a crime.

The Petitioners:

The petitioners have urged the court to strike down the law as it is in violation of Article 14, 19, 20 21 and 22 of the Indian Constitution and hence ultra vires. With respect to Article 14 (Right to equality) it was submitted that the act makes no distinction between persons who receive or solicit money for authorised purpose and those who are singing, dancing or engaged in similar activities. With respect to article 19(1)(a) (Right to freedom of speech and expression), the petitioner submitted that soliciting is a verbal request and it covered under the right to free speech and expression[4] and the restrictions imposed on this right in the name of public order, decency and morality is unreasonable. The act while unreasonably restricting the movement of beggars, also limits the movement of a large number of no-beggars as interviews with lawyers working in this area revealed that 74% of persons arrested were from the informal labour sector and 45% were homeless. With respect to Article 21 (Right to life), it was submitted that this right includes right to live with dignity and with necessities of life which would further include taking steps such as begging to survive and keep body and mind together.[5] The act coerces people to make an unreasonable choice between committing a crime to be rehabilitated or not commit the crime and starve which goes against the spirit of the Indian Constitution and infringes Article 21.

The State:

The state in response to the PIL filed placed a counter affidavit stating that begging should not be a crime if it is done because of poverty. However, the state further stated that in order to ascertain if it is being done due to poverty or willingly by a person even if he/she has honest means to survive or has been coerced into begging, it is imperative to detain him/her. Only after determining the cause of begging through further investigation, the person detained can be let free. Therefore, the state claims that the provision of detention as provided in the section is justified.[6]

The Court:

While considering the arguments by both the sides, the court laid down certain reasons as to why criminalisation of poverty is against the spirit of the Indian Constitution. Firstly, the state questioned the very act of criminalizing begging when our constitutional framework promises every person the right to live with dignity.

Secondly, the court said that the act does not differentiate between voluntary or involuntary begging as pointed out by the petitioners. The absence of any such distinction authorises the police to use their power arbitrary. On the other hand, the comprehensiveness of the definition of begging under Section 2(1) (i) appears to indicate a legislative intent to cover a wide area, including voluntary and involuntary begging. The state has also used homelessness and begging interchangeably which authorise them to detain the homeless as if they were begging. In this process the state would be detaining persons who are not engaged in begging, like daily wage workers, who have family members to support and their detention could reduce the entire family to financial deprivation and penury.

Thirdly, the court criticised the reason provided by the state to justify detention i.e. in order to ascertain the cause of poverty. This act is in teeth of the rights accorded under Article 21 of the Indian Constitution. This act of the state justifies arresting people who may, under further investigation, have been not been begging, thereby depriving them of their liberty without following any process of law.

Lastly, the most significant reason given by the court was that it was the duty of the state to provide its citizens with bare essentials and hence the failure on the part of the state to perform of its duty cannot be a reason to criminalise the act of begging. The court emphasised on the fact that people beg not because they want to, but because they need to. When all the other doors are closed, begging is their last resort. Begging is a symptom of a disease, of the fact that people have fallen through the socially created net.[7]

To conclude, the court stresses on the point that criminalisation of begging is a completely wrong approach to deal with the underlying problem i.e. poverty. If the state actually wants to eradicate begging, then it has to take some sensible measures to provide the beggars with a decent life rather than using artificial means to make beggars disappear. Criminalizing them will just displace them form the streets to rehabilitation centres without addressing the root cause of the problem. As stated in the judgement there is no difference between the sentence “Help the poor” and “Help me I’m poor” and hence there is no reason for criminalising the latter and lauding the former. But the court can only strike down a law and not reform the society. As the Chief Justice acknowledged in the judgement, begging is a systemic and structural social problem. The judiciary has done its part by striking down a vicious law and it is now the task of the Legislative Assembly and the state to reform the punitive structure of the law and draft a new set of actions that genuinely considers the interests of the destitute and focusses on providing them with better quality of life and integrate the most oppressed and vulnerable members of our society.

[1] Hereafter referred as the act.

[2] Gautam Bhatia, “Undoing a legacy of Injustice”, The Hindu, Aug 13, 2018, available at: https://www.thehindu.com/opinion/lead/undoing-a-legacy-of-injustice/article24672202.ece

[3] Soibam Rocky Singh, “Delhi High Court decriminalises begging in the national capital”, The Hindu, Accessed on 7^th October, 2018. Available at: https://www.thehindu.com/news/cities/Delhi/delhi-hc-decriminalises-begging-in-national-capital/article24631922.ece

[4] Jolly Jose Varghese v Bank of Cochin, AIR 1980 SC 470

[5] Gopalanachari v. State of Kerala, AIR 1981 SC 674

[6]  W.P.(C) 10498/2009 & CM APPL. 1837/2010

[7] Supra note 17