A positive beginning: Delhi High Court’s decision decriminalising begging is a step in the right direction

[dropcap]I[/dropcap]n a welcome move, the Delhi High Court has struck down several provisions of the Bombay Prevention of Begging Act, 1959 — as extended to Delhi in 1960 — as unconstitutional.  This implies that begging — as defined under the Act — in the national capital does not constitute an offence anymore. The Delhi High Court Bench, comprising the outgoing Acting Chief of the High Court, Gita Mittal and Justice C Hari Shankar, rightly declared the main provisions of the Bombay Act as "manifestly arbitrary" and against the mandate of Article 21 of the Constitution which guarantees citizens right to live with dignity and with the necessities of life required for it.

However, the court's decision only affects the law in the national capital. At present, at least 20 States have either their own anti-beggary laws or modified versions of these laws from other states.  Under the Bombay Act — which serves as the model law for at least 15 other states, no longer Delhi — any person found begging can be arrested without a warrant by either a police officer or anyone authorised in this behalf. A "summary inquiry" is then held in any court exercising criminal jurisdiction in the respective area. The arrested person can either be released — after admonition — on a bond or be detained in a "certified institution" — also called a beggar home — for a period ranging between one year and three years. If a person is convicted for the subsequent time, the detention period can be extended to ten years.

Not rehabilitative, but punitive

The presence of anti-beggary laws in India draws attention at two major issues. First, the present approach of the central and state governments towards beggary is not rehabilitative, but punitive, i.e., rather than rehabilitating the destitute person engaged in begging, such laws legitimise punishment as a tool to invisibilise beggars from the public space, thereby equating poverty with illegality.

This punitive approach concretely manifests itself inside the different beggar homes functioning under these laws. Beggar homes are custodial centres which are supposed to provide training, employment and medical facilities to the inmates; but the inhuman treatment meted out to the inmates inside these homes has continued to draw strong condemnation from both civil society activists and statutory bodies alike. In January 2017, the Delhi Commission for Women (DCW) noted cases of 'serious human rights violations' – including alleged sexual assault – against women foreign nationals, who were detained as beggars in the beggar home in Nirmal Chhaaya complex after their visas had expired. The DCW had also cited cases of racial discrimination, provision of unhygienic food, filthy toilets, and lack of medical treatment to pregnant women.

What is more worrying being the possibility of the government to outsource the functioning of beggar homes to private entities, with evidently little or no accountability. As was recently reported, the NGO running the Muzaffarpur shelter home, where destitute girls were sexually abused for months, was earlier sanctioned by the Bihar government's welfare department for running a beggar home in Patna. This was weeks after a seven-member team from Koshish, an NGO affiliated to the Tata Institute of Social Sciences, submitted its report to the state welfare department in May 2018, revealing that 34 out of 42 girls in the Muzaffarpur shelter home reported having been sexually exploited in the past.

The second issue is that of the ambiguity around what constitutes begging — part of the reason why the Delhi High Court declared the Bombay Act as "manifestly arbitrary." Under the current laws, to "beg" and to "look like a beggar" are not any different from each other. Hence, what is criminalised is not only the act of begging but also the very presence of a person who the authorities think might be a beggar. For instance, take a look at how the Bombay Act defines "begging":

a) 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;

(b) Entering on any private premises for the purpose of soliciting or receiving alms;

(c) Exposing or exhibiting, with the object of obtaining or extorting alms, any sore, wound injury, deformity of diseases whether of a human being or animal;

(d) 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;

(e) Allowing oneself to be used as an exhibit for the purpose of soliciting or receiving alms but does not include soliciting or receiving money or food or given for a purpose authorised by any law.

First, clause (a) of the definition subsumes a number of identities which vary across social and occupational borders. For instance, for many nomadic communities, travelling from place to place and performing on the streets to earn a livelihood is what defines the centre of their everyday lives. As Meena Radhakrishna writes, these communities include "singers, dancers, street performers, acrobats, fortune-tellers, and also those who earned a living by selling medicinal herbs, iron implements, goods made of bamboo or leaves like baskets, mats, brooms and so on." The definition used in the Bombay Act waters down this complex web of socio-economic identities into an ill-defined, homogenous category of "beggar".

Second, clauses (c), (d) and (e) — especially the emphasis of clause (c) on the person's physical appearance — have often resulted in labourers, vegetable vendors, etc., being detained by the police simply because they looked like "wanderers" or suffered from an ailment or injury. Media reportage around the issue has highlighted numerous cases where people detained by the police/anti-begging squads were not even asking for alms in the first place. In a shocking 2014 report by Koshish, it was revealed that out of the total inmates locked up in a beggar home in Chembur, 70-80% inmates, when arrested, were not begging. These inmates included a cancer patient, an IT diploma graduate, a retired government servant, a street hawker, etc. In fact, the Bench's judgment reveals that in Delhi, "74% of persons arrested were from the informal labour sector such as those employed in small hotels, markets and construction, and 45% were homeless."

What is to be done?

The excesses of the anti-beggary laws are testimonies to the fact that under the neoliberal order, poverty is perceived not as a product of the depleting obligations of the state towards its citizens, but as a "law and order problem", serving a bad example to the virtues of a disciplined labour life and "world-class cities". The zeal to maintain this "law and order" leads in many instances to the person accosted by the police/anti-begging squad being presumed guilty without any substantial evidence — with the legal maxim of "innocent until proven guilty" effectively being turned upside-down.

There is substantial consensus in the public domain on the need to abolish the anti-beggary laws without delay. If the government indeed strives to build a successful rehabilitative framework for the destitute citizens, it first needs to ensure that any new legislation does away with the definitional ambiguities present in the current beggary laws.

Second, any rehabilitative measure should ensure that a person's right to engage in soliciting alms, perform or sell articles on the street is fully protected. This is in consonance with judgment rendered by the Delhi High Court in Ram Lakhan v. State [137 (2007) DLT 173], quoted by the Bench in its Wednesday judgment. In Ram Lakhan, the Delhi High Court had questioned the idea of a complete prohibition on begging. It noted that depriving a beggar of the liberty to solicit alms by spoken words or action can run counter to Article 19(1)(a) of the Indian Constitution, which guarantees to all citizens the right to "freedom of speech and expression". The court highlighted that "[j]ust as an advertisement of a product would be within the perimeter of this valuable fundamental right, begging, too, could fall within it." It also underlined the observation made by the People of the State of New York vs. Eric Schrader, where the solicitation of funds by legitimate charities was compared to begging by individuals in need. "No rational distinction can be made," the court had noted, "between the message involved, whether the person standing in the corner says 'Help me, I'm homeless' or 'Help the Homeless.'"

Rehabilitation upon consent

This brings us to the question of consent. All rehabilitative measures by the state should be undertaken based on pure consent of the destitute person — keeping in mind that in the majority of cases where people were misidentified as beggars, protesting innocence bore no fruit. Moreover, as is evident, the anti-beggary laws have a continuing history of harassment of destitute persons by the police outside and the authorities inside the beggar homes. It then becomes critical for any rehabilitative legislation to categorically provide for the protection of destitute persons against coercion and abuse in the process of identification and rehabilitation.

Read the Delhi High Court judgment decriminalising begging.