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Decriminalization Of Begging With Reference To Harsh Mandar vs UOI

Introduction

Begging is a conventional problem in India, to whichever part of the country we visit we will find this problem. But is this what people like to do or is this what they do out of helplessness? There are certain causes for it such as illiteracy, old age, disability and diseases, no opportunities to work, and non-fulfillment of basic and essential necessities of life. But there are also certain negative aspects attached to it such as child trafficking, human trafficking, drug abuse etc. In many cases, children are kidnapped and forced to beg, and sometimes even they are deliberately disabled by kidnappers. There has been a conservative estimation that says around 3 lakh children in India are being oppressed to beg.

There is no central law to criminalize begging but around 20 states and two union territories have adopted the Bombay Prevention of Beggary Act, 1959 or they have taken it as a basis for their beggary laws. A Paramount example of this Act being applied practically is in 2010 when commonwealth games were scheduled to happen and mass no. of people were thrown to detention centers under the provisions of Anti-Beggary laws of Delhi. Delhi High Court abrogated certain provisions of the Bombay Prevention of Beggary Act, 1959 which also extends to Delhi. But causing or employing someone to beg is still a crime under Section 11 of the Act, which includes forced begging rackets etc. The punishment for it is three years maximum and one-year minimum.

Major Reasons for Begging

Some of the Major Reasons for begging are –

  1. Economic Causes: Unemployment, poverty, natural calamities or famines, underemployment, such economic factors causes the person to beg. They go from place to place in search of work but when they don’t find sufficient means to support themselves and their families they adopt the profession of begging. Even if they find a job they are not paid well to fulfill the basic needs of their lives which again cause them to beg to increase their income.
  1. Social causes: The mindset of Indian people is still highly orthodox. People who are lunatics, divorced, widows, and old aged people are often abandoned by their families, and if not abandoned then they are tortured to such an extent that they get forced to leave their homes. Those who are educated or have any skill are able to survive but those who are unskilled and uneducated end up begging to meet their basic needs in life.
  2. Biological Causes: When any person suffers from any serious or lethal disease or is physically disabled, there are families who maltreat them or even abandon them, and they end up begging. Here we see the failure of the family as a basic unit of society.
  3. Natural Disasters: Natural disasters such as tsunamis, hurricanes, cyclones, floods, earthquakes and droughts force people to leave their homes and everything behind because they get damaged by such calamities. Till the time they find any or if they do not find any job they end up begging to survive. Bombay and Calcutta are filled with mass no. of migrant beggars.

 Contentious Provisions of the Act

  1. This Act criminalizes begging, which means if any person is found indulging in the act of begging the state will be held liable.
  2. Police were given the power to arrest the beggar without any warrant.
  3. Magistrate had the power to send such arrested beggars to the certified institutions. This detention shall be not less than the period of one year and not more than three years. If he is found again for the second time indulged in begging the court shall order him to be detained for a period of ten years.
  4. Beggars arrested shall have to get fingerprinted themselves.
  5. Dependents of the beggars are also detained under the provisions of the Act.
  6. If a child is below the age of five is sent to the juvenile justice tribunal.

Harsh Mandal and Ors vs Union of India and Ors, 2018

In this landmark judgement two PILS were filed by Harsh Mandar and Karnika Sawheny, High Court of Delhi passed the decree to decriminalize the act of begging in the national capital. This judgment abrogated Section 25 of the Bombay Prevention Act, 1959, which makes begging a crime in any form.

Arguments of the Petitioner

It was prompted by the petitioners to strike down the law as it violated Articles 14, 19, 20, 21, and 22 of the Constitution of India. With reference to Article 14 Right to Equality, it was stated that the provisions of the Act did not make any difference between persons who received or solicited money for authorized purposes and those who were dancing, singing or indulging in similar activities. It means that society only accepts some established forms of job, other works done by poor people to meet their needs are considered a crime like dancing or singing. With reference to Article 19(1)(a) (Right to Freedom of speech and expression), it was submitted that soliciting was a verbal request which means it got covered under the right to free speech and expression and no reasonable restrictions could be imposed upon it in the name of public order, morality and decency. With reference to Article 21 Right to Life, it was stated that the right to live with dignity and with necessities of life covers the steps taken such as begging to live and keep body and mind together.

Arguments of the State

The state further contended that provisions of detention are justified because in order to distinguish whether the person begging is forced to do so or it’s just his mean to survive he has to be detained and accordingly he can be set free after the investigation. Moreover, Act did not have any intent to criminalize ‘involuntary’ begging.

Judgment of the Case

Delhi High Court passed the judgment in the favor of Petitioners and decriminalized the act of begging and struck down Sections 4 to 29 except Section 11 of the Bombay Prevention of Beggary Act, 1959. The court stated that criminalizing beggary is in no way helping the eradication of the root cause of beggary which is Poverty. If the state wants the eradication of beggary then it has to take some beneficial steps to Provide beggars with a dignified life and not just use some artificial ways to vanish them which infringes their Fundamental Rights as stated by the Petitioners. There is no distinction between voluntary and involuntary begging in the Act, it criminalizes both, hence it is arbitrary in nature. Judiciary’s task was to strike down the law which is vicious not to reform society, reforming society and providing qualitative life to the oppressed members of society is the task of the Legislative Assembly.

“People beg on the streets not because they wish to, but they need to. Begging is their last resort to subsistence,” acting Chief Justice Gita Mittal and Justice Hari Shankar wrote in the 23-page order.[1]

Conclusion

Begging is not a choice but the only option available to those who do not find any other means to support themselves or their families so the only option that remains for them is to be nobody begs for pleasure, it is the empty stomach and their helplessness which forces them to beg. Their act of begging is proof of the failure of the state and instead of helping them and providing a dignified life for them, it criminalized the begging. The state tried to hide its flaws and with such laws, they highlighted that being poor is a crime. It is not that person is born a beggar but the situation makes them beg, a situation which can be avoided by the state, but they opt to criminalize the act not to solve the root cause of the act. This landmark judgment definitely provided relief to the beggars. This made them believe that the judiciary the watchdog of the constitution safeguarded their fundamental rights.

Suggestions

It is suggested to bring some welfare policies for the beggars who are not even in a condition to meet the basic needs of life. It is the duty of the states under DPSPs and also the fundamental right of the people to live a dignified life. The state should provide employment opportunities to them and provide free medical treatment to those who beg due to any disease or disability. Also, people who beg due to old age should be forwarded to old-age houses where they are being taken care of. Providing food, shelter and clothes to beggars will help to eradicate the root problem of begging which is poverty. Also, the state should provide education to their children and make them aware of the importance of education. The state should take some strict measures about looking for those mafias and kidnappers who are behind forcing the people and children to beg. The state can also take some initiatives to organize a campaign where people can give clothes, blankets and other helpful things to those who are needy.

This Article has been written by Harmanjeet Kaur, 2nd Year B.A. LL.B student of Lovely Professional University.

[1]https://www.reuters.com/article/india-homelessness-lawmaking-idINKBN1KU1FH

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