Criminalizing Begging Violates The Most Fundamental Rights Of Most Vulnerable People In Our Society: Delhi HC Strikes Down Anti-Begging Provisions As Unconstitutional.
In a most recent judgement at the SUPREME COURT,
“The State simply cannot fail to do
its duty to provide a decent life to its citizens and add insult to injury by
arresting, detaining and, if necessary, imprisoning such persons, who beg, in
search for essentials of bare survival, which is even below sustenance. A person
who is compelled to beg cannot be faulted for such actions in these
circumstances. Any legislation, penalizing the people therefore, is in the
teeth of Article 21 of the Constitution of India.”
The Court opined that criminalizing begging is the “wrong approach to deal with the underlying causes of the problem”, asserting, “It ignores the reality that people who beg are the poorest of the poor and marginalized in society. Criminalizing begging violates the most fundamental rights of some of the most vulnerable people in our society. People in this stratum do not have access to basic necessities such as food, shelter and health, and in addition criminalizing them denies them the basic fundamental right to communicate and seek to deal with their plight.”
It then struck down the provisions as unconstitutional, while clarifying that the inevitable consequence of the decision would be that the prosecutions under the Act against persons alleged to have committed the offence of begging would be liable to be struck down. The Court however left it open for the Delhi Government to bring in alternative legislation to “curb any racket of forced begging, after undertaking an empirical examination on the sociological and economic aspects of the matter,” adding, “If the State wishes to criminalize specific types of forced beggary, it has to first think out a clear factual basis and impact thereof to pass a well thought legislation after due application of mind and being mindful of the constitutional rights provided under the Constitution of India.”
FROM THE PETITIONER’S SIDE,
“While the Act unjustly restricts the movement of beggars, the application of the Act also limits the movement of a large number of no-beggars. Interviews with lawyers providing legal aid have revealed that 74% of persons arrested were from the informal labour sector such as those employed in small hotels, markets and construction, and 45% were homeless. It was observed that beggars were unaware of the reasons of arrest and were taken to the Beggars Court at the pretext of doing some work like cleaning.”
With regard to the violation of Article 21, the petitioners had contended that the right to life includes the right to take steps, including begging, to survive, asserting, “Criminalisation of begging by the Act deprives a parson of the right to obtain basic necessities of life. The Act further requires 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 Constitution and violates Article 21.”
THE COURT’S VERDICT,
The Court began its judgment with a quote from an article in The Guardian, which said, “...A society that sees legislating inequality and homelessness into invisibility has unquestionably lost its way…” It then agreed with the petitioners’ contentions and noted inter alia that the law does not in fact make any distinction between types of begging i.e. voluntary or involuntary. It further noted that the State was using homelessness and begging synonymously, and termed this arbitrary.
Besides, the Court considered the “futility” of lodging and detaining beggars in beggars’ homes as a wastage of public funds, and highlighted the inadequacy of the impugned provisions, observing, “If we want to eradicate begging, artificial means to make beggars invisible will not suffice. A move to criminalize them 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.”
It further opined that the presence of beggars was the evidence of the State’s inefficiency in providing basic facilities to all its citizens. It asserted, “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. Begging is a symptom of a disease, of the fact that the person has fallen through the socially created net. The government has the mandate to provide social security for everyone, to ensure that all citizens have basic facilities, and the presence of beggars is evidence that the state has not managed to provide these to all its citizens.”
The Court then struck down Sections 4, 5, 6, 7, 8, 9, 10, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28 and 29 of the Act, noting, “These provisions either treat begging as an offence committed by the beggar, or deal with ancillary issues such as powers of officers to deal with the said offence, the nature of enquiry to be conducted therein, punishments and penalties to be awarded for the offence, the institutions to which such “offenders” could be committed and procedures following the awarding of sentence for committing the said offence. These provisions, in our view, cannot sustain constitutional scrutiny and deserve, therefore, to be struck down.”
The Court’s judgment ended with the words of Justice Krishna Iyer, in his judgment in Gopalanachari v. State of Kerala, wherein he had observed, “...If men can be whisked away by the police and imprisoned for long months and the court can keep the cases pending without thought to the fact that an old man is lying in cellular confinement without hope of his case being disposed of, Article 21, read with Articles 14 and 19 of the Constitution, remain symbolic and scriptural rather than a shield against unjust deprivation. Law is not a mascot but a defender of the faith. Surely, if law behaves lawlessly, social justice becomes a judicial hoax.”
In the meantime, a 29-year-old man visited Chennai just a day ago, a mechanical engineer Ashish Sharma who has walked 16503 KMS across the country on foot, starting on August 22nd, 2017, from Jammu, has covered every major highway, arterial roads, metro station and mall across India, with a message, “STOP GIVING MONEY TO BEGGARS, because you are feeding not that child taking alms but a criminal mafia that is draining them of their life and dignity, which is also growing by the day”.
Currently in Chennai, as a part of his nationwide campaign, has been meeting with the public, students and government officials to create a brotherhood that pledges against begging. “My plan is to reconnect with these people in June with educational modules. We are proposing this to be implemented in their respective states” he said.
He recollects one particular incident, where the seeds of his passion in project were sown at a traffic signal in Delhi five years ago, where he came across a scrawny child beggar. Sharma took him out for a meal instead and eventually befriended him, following which he came to know that the boy, then nine had been trafficked into a racket.
Sharma got in touch with the child protection committee and rehabilitated him with the help of an NGO. He went on to rescue eight children after that in Delhi, of which six he says were trafficked. “By the time I was rescuing my ninth child, I realized that his issue needed not a temporary cure but long term solution. You may spend three months rescuing one child, by which time about 100 others emerge in different parts of the country. The solution then lies in starving these rackets of resources” he said.
In addition to carrying out the 17000 KMS march covering 29 states, 7 Union territories, 4900 villages, Sharma has programmed a mobile app called “Duayen” which runs a network of schools, hospitals, police stations, government officials that could be tapped into while identifying, rescuing, rehabilitating children pushed into begging.
“A LONG TERM OBEJECTIVE IS TO OPEN TWO-ROOM SCHOOLS AND REHABILITATION CENTRES AT EVERY RAILWAY STATION IN THE COUNTRY. RAILWAY STATIONS AND TRAFFIC SIGNALS ARE PRIME SPOTS FOR CHILD BEGGARS, AS MIGRATION IS A MAJOR CONTRIBUTOR” HE SAID……
VIJAYASHREE RAMESH, CHENNAI BASED ADVOCATE.