We live in a society that witnesses glaring divide in the inequality of the society, a world that is increasingly becoming dis-passionate and inconsiderate towards the questions of grinding poverty, hardships and the very question at the heart of the issue, “Why does a person beg?”
The historic judgment by the Delhi High Court in the Harsh Mander & Another v. Union of India[1] (and Karnika Sawney v. Union of India) decriminalizing beggary (Bombay Prevention of Begging Act 1959) starts with an article that puts up a question that is especially relevant in the present context, What Kind of a Society tries to make its Poverty Invisible? [2] Reminiscent of the famous Olga Tellis case, the judgment goes far beyond what was pleaded: it went to atone for the constitutional consciousness and its absence before this and validates the fact that denial of right to life and livelihood is a violation of the fundamental rights and the reiteration of the human right issue of poverty.[3] The judgment also busts the myth of normative justifications and criminal theories surrounding such legislations which are relics of the colonial past and have no relevance with the spirit and values of legislations of the present-day world.
The criminalization of beggary provides a safe haven for the administration and government to claim that they have solved the problem of homelessness, the most visible form of poverty and destitution. It attempts to make the problem invisible rather than solve the same. The fact of the matter is that the approach is only proposed and helps the part of the society observing homelessness, not experiencing them.[4] It stems from the desire of the privileged and the prosperous denizens of the urban places to banish the poor from their places of residence and commute and wield the power of law to foist illegality on the poor.[5] Such legislations are often the tip of the iceberg: a societal attitude that perpetrates inequality and hatred, starting with the farce of public safety and effectively declaring individuals unsafe considered such by the policy makers. Ironically, such legislations are found all over the world: United States of America, Morocco, United Kingdom and other European countries to name a few. In fact, almost all countries have some law at the local level that gives unfettered powers to the administration to punish the poor, going beyond its moral ambit of preventing child beggary and forced beggary.
As Usha Ramanathan rightly describes, ostensible poverty is identified as “status offenders”, that is the law does not punish a particular act as such, but punishes the offender for being who they are, and not by doing what they do, much like gender offences that were decriminalized by the Court not very long ago.[6] She comments,
Beggary laws have begun to demonstrate how the law may be made, continued, expanded and practiced when the constituency affected by the laws are powerless – so rendered by the illegality that the law visits on them, the prejudice that poverty provokes, the distance between privilege and poverty, and the vanishing obligations of the state.
Moreover, the manifold manifestations of the colonial era law went far beyond criminalizing beggary. It also affects social groups that are already affected by the facets of the society. The Court stated that the utility the Act has been arbitrary, leading to the detention of poor individuals who may not be engaged in begging, but could be daily wage employees, transgender people, homeless men and women and those who’ve ‘fallen through the socially created net’. Beggary laws which offer the police with the authority to arrest without a warrant have a disproportionate effect on transgender individuals, who frequently depend on begging and different conventional way of looking for alms for survival.[7]
In many ways, the Delhi High Court in the Harsh Mander case built the foundation stones for the historic Supreme Court judgment in the Navtej Singh Johar case[8] where the Court reiterated the observations in NALSA v. Union of India (2014)[9] which noted that transgenders face discrimination and mal-treatment at every stage of their lives which leads them to the fringes of the society and having no other way, they resorted to beggary. The misplaced priorities in the enactment of such statutes are evident in the justifications of public safety and anti-social behaviour which more often than not ends up compromising the safety and security of the poor.
For a long time, beggars as a group have been treated with disdain, contempt and the stigmatization of the group perpetrates and internalizes their maltreatment. While the end goal of the elimination of beggary can be agreed upon, the means to be followed needs to focus on providing solutions to correct the same, not make them invisible. Hopefully, in the times ahead criminalization of beggary, homelessness and every such legislation that punishes the poor for their social and economic status should be treated as against the basic tenets of human rights.[10] They are not life choices, they are forced actions. Access to housing, food and clothing should be the priority, not evicting them from the streets.
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[1] AIR 2018 Del 188
[2] Dawn Foster, What Kind of a Society tries to make its beggars invisible? Ours Does’ The Guardian (11 January 2018) <https://www.theguardian.com/commentisfree/2018/jan/11/newport-begging-homelessness-public-space-invisible> accessed on 8 September 2019.
[3] Ashish Goel, ‘Decriminalisation of Begging is a rare example of an Activist Court’ (The Wire, 9 August 2018) <https://thewire.in/law/delhi-high-court-begging-decriminalisation> accessed on 8 September 2019.
[4] Supra 2.
[5] Usha Ramanathan, ‘Ostensible Poverty, Beggary and the Law’ Economic and Political Weekly, Vol. 43, No. 44 (Nov. 1 – 7, 2008) 33.
[6] Ibid.
[7] Ajita Banarjie, ‘Discipline and Punish: How Anti-Beggary Laws in India are used to Criminalise Transgender Persons’ (Oxford Human Rights Hub, 1 September 2018) <http://ohrh.law.ox.ac.uk/discipline-and-punish-how-anti-beggary-laws-in-india-are-used-to-criminalize-transgender-persons/> 8 September 2019.
[8] W. P. (Crl.) No. 76 of 2016
[9] W. P. (Crl.) No. 400 of 2012.
[10] FEATNSA, Criminalising homeless people – banning begging in the EU’ (European Federation of National Associations Working with the Homeless, February 2015) 6.
This article is authored by Ritesh Patnaik, student of B.A. LL.B (Hons.) at National Law University Delhi
