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Legality of begging
Begging no crime: Delhi HC/ 2018
How can begging be an offence in a country where the government is unable to provide food or jobs, the Delhi high court observed while hearing two PILs seeking to decriminalise begging. A bench of Acting Chief Justice Gita Mittal and Jusice C Hari Shankar also observed that a person begs only out of "sheer necessity" and not by choice.
"You or we will not beg even if we are offered a crore of rupees. It is out of sheer necessity that someone puts out a hand to beg for food. How is begging an offence in a country where you (government) are not able to provide food or jobs," the court said.
The central government said there were sufficient checks and balances in the Bombay Prevention of Begging Act which criminalises begging.
The government had earlier told the court that begging should not be a crime if it was done due to poverty. It had also said that begging will not be decriminalised.
The PILs, by Harsh Mandar and Karnika Sawhney, have sought basic human and fundamental rights for beggars in the capital, apart from decriminalising begging. They have also sought basic amenities such as proper food and medical facilities at all beggars' homes in the city.
The petitioners have also challenged the Bombay Prevention of Begging Act.
The Centre and the AAP government had in October 2016 told the court that the Ministry of Social Justice had drafted a bill to decriminalise begging and rehabilitate beggars and homeless people. But later the proposal to amend the legislation was dropped.
The law prescribes a penalty of more than three years of jail in case of first conviction for begging and the person can be ordered to be detained for 10 years in subsequent conviction.
Currently, there is no central law on begging and destitution and most states have adopted the Bombay Prevention of Begging Act, 1959, which criminalises begging, or have modelled their laws on it.
‘Criminalising It Violates Basic Rights’
Noting that criminalising begging violates the fundamental rights of the most vulnerable people of society, the Delhi high court on Wednesday decriminalised the Act in the Capital. A bench of acting Chief Justice Gita Mittal and Justice C Hari Shankar held that begging in the city will no more be treated as an offence while pointing out that people beg on the streets not because of their wish but as a “last resort” to meet their needs.
Criminalising begging violates fundamental rights of some of the most vulnerable people in our society, the court noted as it blamed the State for not being able to ensure even the bare essentials of the right to life to all its citizens. Observing that begging is a symptom of a disease, the bench struck down penal provisions of the Bombay Prevention of Begging Act as unconstitutional, adding these couldn’t be applied in the national capital. The bench made it clear that an “inevitable consequence of this verdict would be that prosecutions under the Act against those who are alleged to have committed the offence of begging would be liable to be struck down”.
HC: State can’t fail in its duty to provide decent life to citizens
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,” the court observed.
However, it explained that only courts hearing such cases can strike down the prosecutions. “We, therefore, limit ourselves to observing that the fate of such prosecutions, if any, would have to abide by the present judgement, and our observations and findings contained herein,” it specified, while allowing two petitions filed by social activist Harsh Mander and Karnika Sawhney.
In its judgment the court stressed that government is free to bring in a proper well researched law based on factual analysis to curb any racket of forced begging after undertaking an empirical examination on the sociological and economic aspect of the matter. While the central government had said it cannot decriminalise begging and there were sufficient checks and balances in the Act which make it an offence, the AAP government had supported decriminalising the act of begging.
While striking down a total of 25 sections of the Act, the high court said "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, punishments and penalties to be awarded for the offence, institutions to which such 'offenders' could be sent to and procedures following the awarding of sentence for committing the said offence. “These provisions, in our view, cannot sustain constitutional scrutiny and, therefore, deserve to be struck down,” the bench observed while keeping rest of the provisions of the Act intact since these do not directly or indirectly relate to the ‘offence’ of begging.
During the hearings earlier, the court had asked how begging could be an offence in a country where the government is unable to provide food or jobs. It had found merit in the petitioers case that apart from decriminalising it the beggars should be provided basic amenities, such as proper food and medical facilities, at all homes for beggars. In the run up to the verdict the government had since 2016 maintained that its Ministry of Social Justice had drafted a bill to decriminalise begging and rehabilitate beggars and homeless people. But the proposal to amend the legislation was later dropped. At present there is no central law on begging and destitution and most states have adopted the Bombay Prevention of Begging Act, 1959, which criminalised begging, or have modelled their laws on it.
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 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
Law and order implications of the verdict
Police Point To Law And Order Implications
With the Delhi high court decriminalising beggary, the government, the police and social groups will have to make coordinated efforts to identify beggars and rehabilitate them, said experts. Although Delhi social welfare minister Rajendra Pal Gautam welcomed the decision, he also said, “We cannot encourage beggary. The court never sends anyone to the rehabilitation home.” Also, people who force children and women to seek money “need to be dealt with in accordance to law”, he added.
A Delhi Police officer said decriminalisation of beggarly might lead to a sudden spurt in the number of beggars on the streets. “Some of these beggars and vagabonds are also involved in petty crimes such as snatching. We may also see a rise in that,” he said.
Though no census has ever been carried out, there are 50,000-60,000 beggars in Delhi and around 1 lakh across the national capital region (NCR). The Delhi government’s beggar home in Lampur, with a capacity for around 1,500 beggars, is lying vacant. Though the government some times round up beggars, they are let off by courts.
Experts believe there is an urgent need to find why people start begging and help them find a way to sustain their families. According to social activists, most people found begging at traffic intersections generally come to NCR from the poorest parts of Rajasthan, Haryana, eastern Uttar Pradesh, Bihar and Jharkhand. At the bottom of the social and economic ladder, they are forced to move states looking for work.
“Belonging to scheduled and nomadic tribes, these people come to Delhi looking for a way to feed their families and eventually start begging when they fail to find any work,” said social activist Sanjay Gupta, director, Childhood Enhancement Through Training and Action (CHETNA). “When people in their villages see these people earning some money, they too get tempted to come to Delhi.” Gupta said that following the HC order, “the state now has to proactively look into welfare works to bring beggars into the mainstream”.