- India’s beggary laws say
- What was wrong with the Bombay Prevention of Begging Act (BPBA), 1959 Act?
- How Anti-Beggary Laws in India are used to Criminalize Transgender Persons?
- Is the anti-begging law curative in nature?
- Why do women enter into begging?
- In which context, the issue of Beggary is in news?
- What is not changed by the judgement?
- Punitive Constitutionalism
- How to eliminate the Beggary?
Anti-Begging Laws in India
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The pre-independence era in India saw cruel laws such as Criminal Tribes Act. The indigenous peoples were deemed criminals by birth and herded into concentration camps, where families were separated and forced labour was the norm. The post-colonial Indian state replicated many of the worst laws of the British regime and one glaring example of this is the “beggary law” which was enacted in Bombay in 1958.
India’s beggary laws
- The current legal definition of a beggar in India has its roots in the Bombay Prevention of Begging Act (BPBA), 1959 which defines a beggar as anyone “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 exists by soliciting or receiving alms.”
- In India, there is no central law which penalises begging. Although, 22 states (including few Union Territories) have their anti-begging laws.
- People found “begging” can be arrested without a warrant by an authorised officer, and after a summary procedure, thrown into “Beggars’ Homes” for anything between a year and three years. Upon a “second offence”, the punishment could extend up to seven years.
- The Jammu and Kashmir Prevention of BeggaryRules, framed under J&K’s version of the Act authorised forced medical examination of “beggars” taken in police custody, “shaving” of hair and “removal of clothing” in order to undertake the cleansing of the body.
What was wrong with the Bombay Prevention of Begging Act (BPBA), 1959 Act?
- The Act was found to be harsh, not just in terms of its disproportionate punishment but also for the process it prescribed.
- All offences under the Act, except those under Section 11, were to be tried summarilye. without giving any opportunity of being heard to the accused.
- The Act makes no distinction between persons who solicit or receive money for authorisedpurposes and those who are singing, dancing, or engaged in similar activities.
- The “pretence” is a very vague term for the police to take action on beggary.
- The Act imposes unreasonable restrictions on soliciting and expressing poverty and vulnerability.
- Under the law, the State was empowered to detain persons who are not engaged in begging, whetherthey are daily wagers, and/or having family members to support.
- The Act required 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 therefore, violated Article 21.
How Anti-Beggary Laws in India are used to Criminalize Transgender Persons?
- The Bombay Act criminalizes various forms of begging including “receiving alms in a public place, whether or not under any presence such as singing, dancing, fortune- telling, performing or offering any article for sale.”
- The majority of transgenders in India depend on traditional forms of seeking through a practice known as mangtiand toli-badhai.
- Criminalized under the anti-beggary provisions and laws governing public nuisance and obscenity, transgender persons are subjected to harassment, arbitrary arrest, illegal detention and custodial torture, violating their most fundamental rights. The police often arbitrarily arrest transgender persons under the pretext of such laws.
- The stigma around transgender identities has existed since the Colonial era, when the British introduced discriminatory laws such as the Criminal Tribes Act, 1871 (CTA) which provided powers to the police to arrest without warrant nomadic tribes and transgender persons who were found dancing, playing music or taking part in any public exhibition, in a public street.
- The Telangana Eunuchs Act, 1919 continues to be on the statute books and adds to the existing stigma around transgender persons who engage in begging or sex work.
- In order to address the historical oppression around transgender persons and to grant them equal citizenship rights, the Supreme Court in its landmark judgment in NALSA vs Union of India, 2014 affirmed the fundamental rights of transgender persons.
Is the anti-begging law Curative in nature?
- The anti-begging law provides for the teaching of agricultural and industrial techniques to the beggars in detention. There are situations wherein a person, although skilled, may be forced to beg due to lack of employment.
- In a survey conducted by the Department of Social Welfare of Delhi University, it was found that about 9 to 10 % of the beggar were educated till the primary level, 5 % till the secondary level, and that six graduates and four post-graduates had resorted to beggary due to lack of employment opportunities.
Why do women enter into begging?
- Force migration
- Adverse circumstances in new city
- Poor household situation due to death/unemployment of breadwinner
- Husband’s second marriage,
- Domestic violence, eviction and abandonment
- Illness and disability
- Escape abuse and societal rejection as widows
- The benefit of income with anonymity
In which context, the issue of Beggary is in news?
Recently, the Jammu & Kashmir High Court struck down that state’s iteration of the Beggary Act.
In a detailed judgment, its Chief Justice Gita Mittal identified the colonial origins of the law and found it to be a gross violation of human dignity, equality, and freedom.
- A petitioner challenged the Beggary Law before the J&K High Court on the grounds of ‘forced medical examination of ‘beggars’ who are taken in police custody.
- The government, on the other hand, defended the law on the ground that it was necessary to make good citizens out of beggars and that it was necessary to maintain public order. The government also argued that “beggars” caused annoyance to tourists, and that it was essential to crack down on “organised begging.”
The court’s analysis
- In India, begging was first criminalised in the 1920s, as part of a colonial logic that sought to “subjugate certain communities by imputing criminality to them.”
- According to High Court (HC) “begging and homelessness are indicators of abject, chronic poverty.”
- Court rejected that poverty is a consequence of individual failings and recognised that the primary failing was that of the state.
- The court addressed the question of fundamental rights.
- As “begging” was a peaceful method by which a person sought to communicate their situation to another, and solicit their assistance, it was protected under Article 19(1)(a)’s which guarantee freedom of speech.
- The government’s stated justification for criminalising “begging” — that of turning people into “good citizens” — was vague and undefined.
- Incarcerating “beggars” into beggar’s homes would not transform them into “good citizens”.
- Criminalising “wandering about” in public spaces, the law effectively attempted to exclude the poor and the marginalised from places that, by definition, were meant “for the enjoyment of every member of the public without exception.” Thus, the law also violated the constitutional guarantee of the freedom of movement.
- The court noted that there existed a large number of itinerant communities such as the Gujjars and the Bakarwals, whose very nature of existence i.e. moving from place to place, and displaying none of the “conventional means of subsistence” — would bring them within the ambit of the beggary law.
- The court pointedly asked: “Does ‘visible means of subsistence’ envisage waving your economic prosperity in public spaces? Or is it sufficient to have a hefty bank balance?”
- By effectively criminalising poverty, the beggary law violated basic human dignity.
- The legislation coupled with the draconian processes under the Act, violated the right to life and personal liberty under Article 21 of the Constitution.
What is not changed by the judgement?
- The court has not struck down provisions that do not treat beggary per se as an offence, including Section 11, which deals with penalty for employing or causing persons to beg.
- This addresses forced begging or “begging rackets”, which are used to justify retaining the Act.
- There is a rise of a phenomenon in recent years which can best be described as “punitive constitutionalism”.
- Punitive constitutionalism seeks to submerge individual rights to a grand yet often undefined national project by holding that an individual may be stripped of their rights if they do not do their bit to contribute to this project.
- For example, laws barring political participation to those who have more than two children (thus submerging the right to participate to the imperatives of population control), or who lack formal education, effectively make freedom and equality conditional upon the state’s vision of what a “good citizen” should be like.
- Rights will be no longer about being human, but about earning the right to be treated as a human.
- The beggary laws also belong within this same family of punitive constitutionalism.
How to eliminate the Beggary?
- The root cause of beggary is poverty.
- The poverty is caused by many structural reasons: no access to education, and social protection, discrimination based on caste and ethnicity, landlessness, physical and mental challenges, and isolation.
- Criminalising begging is a wrong approach to deal with the underlying causes of the problem. It ignores the reality that people who beg are the poorest of the poor and marginalised in society and it violates the most fundamental rights of some of the most vulnerable people in our society.
- People in this stratum do not have access to basicnecessities such as food, shelter and health, and, therefore, criminalising them denies them the basic fundamental right to communicate and seek to deal with their plight, the bench reasoned in its judgment.
- These causes need to be tackled effectively to eradicate the beggary from the country.
- If the country wants to eradicate begging, then artificial means to make beggars invisible or go away will not be sufficient but a move to criminalise them will make them invisible without addressing the root cause of the problem.
- The Jammu and Kashmir High Court’s judgment, therefore shows us the exact way in which our Constitution rejects this harsh world view. For that, it must be applauded.