Latest revision as of 19:22, 10 August 2021

[edit] Legality of begging

[edit] Begging no crime: Delhi HC/ 2018

May 17, 2018: The Times of India

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.

[edit] B

Abhinav Garg, Begging no more an offence in Delhi: HC, August 9, 2018: The Times of India

‘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

[edit] Law and order implications of the verdict

Atul Mathur, Why HC order begs a few questions, August 9, 2018: The Times of India

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”.

[edit] The law and SC’s 2021 ruling

Sushmita Choudhury and Rajesh Sharma, July 31, 2021: The Times of India

How the Law on Beggary has evolved- 1924- 2018
From: Sushmita Choudhury and Rajesh Sharma, July 31, 2021: The Times of India

States which enacted Laws on Beggary- I
From: Sushmita Choudhury and Rajesh Sharma, July 31, 2021: The Times of India

States which enacted Laws on Beggary- II
From: Sushmita Choudhury and Rajesh Sharma, July 31, 2021: The Times of India

Begging is a state subject, and there isn’t a central law governing this. As many as 20 states have laws that essentially criminalise begging. In fact, Kerala has three laws on this. Most of the state laws are modelled on the Bombay Prevention of Begging Act, 1959 (BPBA), or simply apply the same act.

“Under this Act, a person found begging can be sent to a shelter home or even jail without even a trial,” claims law firm Singh and Associates, adding that it is a non-bailable crime. Criminalising clearly doesn’t work, judging by the increasing number of beggars in our cities. A recent public interest litigation in the Supreme Court asked that the court direct states to remove beggars from public places.

The court refused, saying: “We will not take an elitist view and order removal of beggars from sight or ban begging. No person would like to beg unless he/she is forced to do so because of poverty.” In effect, the judges said they would not ban begging.

They did ask the central government and the Delhi state authorities to ensure that beggars were vaccinated against Covid-19. 

Here’s a look at how BPBA defines begging, the penalties in place, the arguments against it and what the Supreme Court now wants the Centre and states to do.

How is beggary defined?

Under the BPBA, begging is defined as soliciting or receiving alms, in a public or private place, even if it is in the guise of singing, dancing, fortune telling, performing or offering any article for sale. It further covers exposing or exhibiting any wounds or deformities in order to receive or extort alms, and allowing oneself to be used as an exhibit to the same end.

However, state laws differ fundamentally in their approach towards the treatment of children found begging. While some states like Karnataka exclude those under 16 years of age from this definition, in most of the states and UTs, children come under the purview of their respective child protection laws and the matter is referred to Juvenile Courts.

Under the Juvenile Justice (Care and Protection of Children) Act, 2015, children found begging are treated as victims in need of care and protection to be dealt with by child welfare committees. However, some of the state laws treat them as criminals who can be sent to an institution.

The BPBA and most of its spin-offs currently enforced across the country also impose a penalty “for employing or causing persons to beg or using them for purposes of begging”. The punishment ranges from one to three years in jail. Notably, this section applies to anybody who has the custody, charge or care of a child and tries to use the latter either as an exhibit to receive alms or makes the child solicit alms.

According to India’s leading independent child rights’ NGO Save the Children, about three lakh children across India are forced to beg, using everything from addiction to drugs, to threats of violence and actual beating. And that’s a conservative estimate.

A grave associated problem is that of child abduction according to the National Human Rights Commission, up to 40,000 children are abducted in India every year, of which at least 11,000 remain untraced.

What are the penalties under the BPBA?

Any police officer or a person authorised by the District Magistrate may arrest any person found begging without a warrant. Those arrested for the first time are detained in what is colloquially known as Beggar Homes for anywhere from one year to seven years. Of course, the states refer to them more politely as Certified Institutions, Special Homes or Receiving Centres. Repeat offenders can be detained for up to 10 years.

Meanwhile, several cities including Mumbai, Hyderabad Indore, Bhubaneswar and Patna as well as states — Rajasthan, most recently — have launched campaigns to turn beggar-free. For instance, in February, Mumbai kicked-off a “Zero Beggars” drive under the BPBA, wherein the police planned to crack down on beggars and move them into a special home post Covid-19 screening.

What are the arguments against anti-beggary laws?

Many experts say that the BPBA has no relevance in today’s socio-economic conditions or society. Those staunchly against the anti-beggary laws claim that it violates several constitutional rights granted to every Indian, ranging from right to life with dignity to right to livelihood. Furthermore, the state laws contradict the ninth entry in the state list of duties — relief of the disabled and unemployable — that is laid down in the Seventh Schedule of the Constitution.

“The provisions of the statutes criminalising the act of begging put people in a situation to make an unreasonable choice between committing a crime or not committing one and starving, which goes against the very spirit of the Constitution and violates Article 21 i.e. Right to Life,” reads a PIL petition with the Supreme Court that seeks to decriminalise begging.

Another issue flagged off in a research paper titled Laws For Beggars, Justice for Whom: A Critical Review of the Bombay Prevention of Begging Act 1959 pertains to the definition of begging itself. The BPBA considers the acts of singing, dancing et al as begging.

“However, singing and dancing and performing involve the skills of the person. Hence, the person is earning through his skills and not begging in this case. People have the choice to give or not to give,” states the paper.

What do the courts say?

In 2018, the Delhi High Court ruled that begging in the national capital would no longer be treated as an offence, saying the provisions penalising the act were unconstitutional. This landmark judgment came in response to two PILs seeking basic human and fundamental rights for beggars apart from decriminalising begging. The Centre as well as the Delhi government at the time had told the court that begging should not be a crime if it was done due to poverty but maintained that begging will not be decriminalised. Flash forward to 2021, and the issue of criminalising beggary is taken up by the apex court. In February, the Supreme Court sought a response from the Centre, and five states — Maharashtra, Gujarat, Punjab, Haryana and Bihar — on a plea seeking a direction to repeal the provisions criminalising begging. The plea referred to the August 2018 verdict of the Delhi High Court. Two months on, Bihar was the only state to file a reply so the top court set a new hearing.

More recently, while hearing another petition seeking the removal of all beggars from public places and traffic junctions to check the spread of the pandemic, the Supreme Court made it clear that it would never restrain people from begging. The bench said that begging was a soci0-economic problem, stemming in large part from the absence of education and employment, which cannot be remedied by ordering the removal of beggars.

“The only solution,” it added, “is their rehabilitation” and called for a humanitarian and sympathetic approach from the states and the Centre.

What is the government’s stand?

In 2017, the Centre scrapped a draft bill to decriminalise begging and rehabilitate beggars and homeless people. The following year, the Abolition of Begging and Rehabilitation of Beggars Bill was introduced in the Lok Sabha in 2018, where it languishes to date. “In 21st century India, begging is a scar which the country can not afford to keep,” reads the Bill. “It is, therefore, imperative that legislation should be brought forward to abolish begging and to provide for adequate rehabilitation of beggars through a robust mechanism of social security institutions”. Though the Bill still imposes penalties on those forcing others to beg, the main thrust is on rehabilitation at the estimated cost of Rs 5,000 crore per annum.

“Any person found begging shall be taken into custody by the Police and sent to the nearest rescue home or social security institution, to be established in each District by the appropriate Government, as the case may be, wherein such person shall be provided with facilities for rehabilitation,” it added.

Yet, in March 2021, the Centre informed the Rajya Sabha that there weren’t any comprehensive schemes for the rehabilitation of beggars. However, more recently, the minister of state for social justice and empowerment A. Narayanaswamy told the Parliament that his ministry has formulated a new scheme — Support for Marginalised Individuals for Livelihood and Enterprise (SMILE) — which includes a sub-scheme called Central Sector Scheme for Comprehensive Rehabilitation of Persons Engaged in the act of Begging.

“This scheme covers several comprehensive measures including welfare measures for persons who are engaged in the act of begging. The focus of the scheme is extensively on rehabilitation, provision of medical facilities, counselling, basic documentation, education, skill development, economic linkages and so on. The scheme would be implemented with the support of state/UT governments/local urban bodies, voluntary organisations, community based organisations (CBOs), institutions and others,” he explained.

The ministry has previously initiated pilot projects geared towards the sustainable settlement of beggars along these lines in 10 cities, namely Delhi, Bangalore, Chennai, Hyderabad, Indore, Lucknow, Mumbai, Nagpur, Patna and Ahmedabad.

Sources: Legal Service India, Mondaq, Census 2011, Law Commission Report, Parliament Q&A, The International Journal of Human Rights, News Reports