Criminalizing Begging Violates The Most Fundamental Rights Of Most Vulnerable People In Our Society: Delhi HC Strikes Down Anti-Begging Provisions As Unconstitutional [Read Judgment]

The Delhi High Court on Wednesday decriminalised begging in the national capital, striking down several provisions of the Bombay Prevention of Begging Act as unconstitutional.The Bench comprising Acting Chief Justice Gita Mittal and Justice C. Hari Shankar observed, “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.”The petitionsWhile there is no central law on begging and destitution, several States have either adopted the Bombay Prevention of Begging Act, 1959 or have modelled their laws on it. The Act prescribes a punishment of detention for not more than three years if a person, who was detained in a certified institution, is found begging and is convicted for the first time.All offences under the Act, except those under Section 11, are to be tried summarily. Section 11, which gives the opportunity of being heard to the accused, imposes a punishment of a minimum of one year and a maximum of three years imprisonment on those who cause others to beg or use them for begging.The Act was made applicable to Delhi in 1960. The High Court was now hearing two PILs—filed by social activists Harsh Mandar and Karnika Sawhney—challenging the constitutionality and validity of all sections, except Section 11, of the Act. They had alleged a violation of Articles 14, 19, 20, 21 and 22 of the Constitution of India by the impugned provisions.They had pointed out that the definition of “begging” under the Act violated Article 14, as it does not make any distinction between persons who solicit or receive money for authorized purposes and those who are singing, dancing, or engaged in similar activities. They had further alleged that the Act was being arbitrarily applied, submitting,“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.”Court’s reasoningThe 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 ...

Criminalizing Begging Violates The Most Fundamental Rights Of Most Vulnerable People In Our Society: Delhi HC Strikes Down Anti-Begging Provisions As Unconstitutional [Read Judgment]

Apoorva Mandhani

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