CRIMINALISATION OF BEGGING IN INDIA: RELEVANCE OF THE B.P.B.A, 1959
- Sachi Ray & Isha Palas
Begging and receiving alms as a means of sustenance is explicitly rooted in poverty, which has been a critical global issue ever since civilization has existed. For ages, poverty has been viewed as a defect of society and the reason for many social evils that envelop it, something that needs to be eradicated for the common good. In India, various factors have contributed to the growth of poverty throughout its history. The discriminative caste system, the exploitative rule of the British, failure of states and provinces to address poverty, the constantly growing population, minimal opportunities coupled with uneven distribution of wealth are just some of these factors. Due to a constantly high level of unemployment and mass migration from rural to urban areas, people resort to begging to survive. Begging is, however, a crime in most of India. The original act that criminalised begging is the Bombay Prevention of Begging Act,1959 (from here on referred to as BPBA). The provisions of which have proved arbitrary in nature and in fact, in 2018, the Delhi H.C struck down multiple provisions of this act as unconstitutional and decriminalised begging in the national capital.
THE NOTION OF BEGGING OVER THE AGES
The perception of begging in India has changed drastically over the course of history. What was once perceived as a spiritual and religious duty is now seen as distasteful, an embarrassment to society. In Ancient India, the practice of dānawas seen as righteous and virtuous and has roots in the religions of Hinduism, Buddhism, and Jainism. The Manusmriti prescribes that the Brahmachari after upanayana is required to beg for alms. Muslims also believe in ‘Zakat’, i.e. charity. Giving alms to the needy is built into the social fabric of India. This suggests that begging has been regarded as not a bane but an acceptable act for survival, in Indian society since ancient times. However, in the West, particularly Europe, beggars were those “who have no position of property to subsist on, will be unable to be avowed or have their respectable character and conduct attested as persons of dignity and trust”. They associated begging with joblessness and idleness, giving rise to anti-vagrancy laws, which aimed to subdue the poor classes who were termed “useless”, “leeches” of society. In the English Vagrancy Laws of 1572 and 1598, those following the vocation of “peddlers”, “petty chapman”, and “tinkers” etc. were subjected to be punished as vagrants. The Vagrancy Act, 1824 criminalised sleeping in public and begging for money.
This brings us to the British Raj and the continuity of its legal philosophy even in the post-colonial period. The intolerant laws on vagrancy which were first introduced in India were the European Vagrancy Act, 1869 and the Criminal Tribes Act, 1871. They largely influenced, criminalised and changed the views on begging in India. The Vagrancy Act was introduced so that the Indians would not see economically weaker Europeans such that their image of racial superiority was maintained. To this end, the European Vagrants were remanded to workhouses across the country. Meanwhile, the Criminal Tribes Act was based on the belief that some Indian tribes were inherently criminal. Many of these tribes led a nomadic existence and made a living out of performing songs, dances, gymnastics, or tricks along with trained animals. The act criminalised these tribes and penalised them. Both these acts though repealed over time, found continuity through similar provisions being incorporated in the BPBA,1959.
The great famine of 1876 resulted in the influx of migrants to the urban areas. Most of these migrants were homeless and unemployed. They lived on the streets and begged for money. The Bombay City Police Act, introduced in 1902 included provisions to curb the begging. Beggars found asking for alms in public places could be jailed for up to one month and fined Rs.50. The 1959 Act, again, suggests similar ways of dealing with beggars.
BPBA AND ITS CONSTITUTIONAL VALIDITY
In the absence of a centralised act on begging, BPBA (introduced in Bombay State in 1959) was implemented and extended to 20 states and 2 union territories with minor changes.The Act aims to make uniform and improved provisions for the prevention of begging including the detaining, training, and employment of beggars in certain institutions as well as their custody, trial, and punishment, etc.
PREVALENT PROVISIONS OF THE ACT:
Begging is defined as anybody soliciting or receiving alms in public places with or without the pretence of singing, dancing, performing or selling of articles, entering private property, and displaying any injury to obtain alms. Having no visible means of subsistence and wandering in public spaces is also included.
Any authorized person can arrest the beggar without a warrant.
If children found begging are above the age of five, they are sent to and dealt with in a Juvenile court as constituted by the Children Act.
The court can detain beggars to certified institutions for a conviction period of 1-3 years on the first arrest and 10 years on the second. The offence is non-bailable and cognizable.
The court may order for detention of people dependent on the beggar to certified institutions.
A Penalty is provided for encouraging or employing a person or child to solicit or receive alms. (Section 11)
Beggars found to be of unsound mind or suffering from leprosy, may be, as provided by the Indian Lunacy Act,1912 or Lepers Act, 1898, transferred to a mental hospital or leper asylum.
It provides for medical treatment and confiscation of animals that are exhibited in order to receive alms. (Section 30)
However, most of the above seem to not be constitutionally valid. The Constitution of India is the absolute law of the country. While the Constitution assures justice, liberty, fraternity, and equality to all its citizens in the form of Fundamental Rights, the provisions of the BPBA violate five of them. Specifically, articles 14,19, 20, 21 and 22. Experts have opined that the law disregards human life and relinquishes constitutional norms.
The act does not differentiate between those who are authorised to perform to solicit money and those who are not. This violates the right to equality i.e. article 14. The right provides that if the legislation was made irrationally, lacking adequate determining principle and capriciously, it would prove to be manifestly arbitrary.
Also, the right to express weakness and financial deficiency; soliciting are protected under article 19 (1)(a) therefore imposition by the act is unreasonable. Section 10 of the Act states that a disabled detainee can be held in Certified Institutions for an indefinite amount of time after the detention period if ordered by the State Government. This is a violation of Article 20 which protects the right to not be given a penalty greater than what is prescribed by law.
Article 21 provides protection of life and personal liberty and therefore, includes the right to endeavour to obtain shelter, food, healthcare, education, and a clean environment. By criminalising begging, the act violates this right. Under the act, people can be arrested without a warrant and not be informed about the reason for their arrest. This violates the right of an arrested person to know the grounds on which they were arrested as provided by article 22 of the constitution. On 8th August 2018, the Delhi High Court decriminalised begging by striking down 25 provisions of the BPBA,1959 as extended to the NCT of Delhi. This judgment addressed two PILs which challenged the constitutional validity of all sections of the act except section 11. The petitioner pushed for the challenged sections to be declared ultra vires on the grounds of violation of Fundamental Rights as discussed above. The bench of acting Chief Justice Gita Mittal and Justice C. Hari Shankar struck down all provisions that criminalised begging. Sections 11 and Section 30 were maintained. Prior to this, the central government had attempted to repeal this act through the Persons in Destitution Model Bill, 2016. Discussions of which were halted in the same year.
A FLAWED ACT AND ITS IMPLEMENTATION
The law labels begging as a crime rather than a social issue. This invariably impacts the working poor, homeless, disabled, abandoned, sex workers and the transgenders, etc. whose rights are rarely recognised and are vulnerable to exploitation. They are penalised for begging or even “looking” like beggars and this is only the surface of the unjustified treatment meted out to them under the anti-begging legislation.
In Delhi, interviews with lawyers revealed that 74% of those arrested were employed in the informal sector, and 45% were homeless. Arrests, unfortunately, lead to loss of jobs due to the stigma, leaving families to suffer financially and be relegated to obscurity. The Act hence fails to prevent begging and only serves as a tool to hide the presence of the poorest sections of society. A prime example of this is when Delhi swept its streets of beggars and the homeless in its preparation for the 2010 Commonwealth Games using the provisions of the Act.
The detained are remanded to institutions, a place where they’re supposed to be rehabilitated. However, multiple reports have revealed mistreatment, humiliation and dehumanisation of detainees. "They forced us to sit naked in a row and splashed a mug of water on each of us.", recounted Bashirabi, a 55-year-old woman who was mistaken as a beggar without any background check and was forced to clean toilets. Accompanied by gross neglect of their well-being, the lack of hygiene in the institutions leads to the spread of communicable diseases and the inadequacy of proper medical care has led to multiple deaths. In fact, in Bangalore, it was reported that 286 inmates of a Beggars’ Rehabilitation Centre died “under mysterious circumstances” over a period of only 8 months. The act also promises to provide training for the employment of the detained. In Maharashtra, the Maharashtra Prevention of Begging Rules,1964 requires them to work on tracts of land. They are made to provide labour in exchange for a terribly meagre monthly wage of Rs.5.
As per the provisions of BPBA, children over the age of five are separated from their parents. This has an adverse effect on their growth. They are sent to ill-equipped orphanages and protection homes where they are isolated, facing neglect and abuse. When the marginalised are subjected to such treatment, they end up losing faith in the state which ideally should be their custodian.
Indian society was once heavily influenced by British ideologies. Over the ages, we have developed our independent thought accompanied by cultural belongingness and an awareness formed with the help of globalization. As society’s beliefs change, the state likewise should continue to adapt.
Begging has been seen as a problem that can be avoided through public and state action. Hence, legislating anti-begging policies should be a matter of promotion and protection. Addressing and combating underlying issues of beggary such as unemployment, homelessness, social deprivation have been side-lined in this act by implementing punitive measures on begging; an inherent social problem that cannot be simply eliminated by custodial action. The BPBA which largely took inspiration from the British anti-vagrancy acts is now, simply a relic of the past. It's a draconian and unjust law that should be reformed. India, as enshrined in the constitution, is a welfare state, and hence promotes the development and well-being of its citizens, all the while upholding their rights. The BPBA which criminalizes a man’s last resort to survival is something that has no place in such a state. The Delhi High Court’s decision to decriminalize begging should inspire other states to do likewise so that the law aligns with the values of our constitution.
“An unjust law is itself a species of violence. Arrest for its breach is more so.”
- Mahatma Gandhi
 Rubina Iqbal, Begging: A Growing Menace in India, 2 IJARMSS 37, 59-60 (2013).  Catharina Lis & Hugo Soly, Worthy Efforts: Attitudes To Work And Workers In Pre-Industrial Europe, 465-466 (BRILL 2012).  Id. at 465.  Team Nyaaya, In many Indian states and union territories, you can be arrested just for 'looking' poor, Scroll.in (Apr. 04, 2017, 07:30 PM), https://scroll.in/article/833471/in-many-indian-states-and-union-territories-you-can-be-arrested-just-for-looking-poor.  Bombay Prevention of Begging Act, 1959, No. 10, Acts of Parliament, 1960 (India).  Id. at sections 2, 4, 5, 6, 9, 11, 26, 30 & 31.  Usha Ramanathan, Ostensible poverty, Beggary and the Law, 43/44 EPW 33, 33-34 (2008).  Harsh Mander v. Uoi, A.I.R. 2028 DELHI 188 (India).  Id.  Lakshmi Iyer, Bombay Act that made Delhi's poor vanish before the CWG challenged, Pune Mirror (Oct. 20, 2010, 10:02 PM), https://punemirror.indiatimes.com/pune/cover-story/bombay-act-that-made-delhis-poor-vanish-before-the-cwg-challenged/articleshow/32260573.cms.  Akela, How cops forced me to live as a beggar for a week, Mid-Day (Aug. 26, 2011, 7:18 AM), https://www.mid-day.com/articles/how-cops-forced-me-to-live-as-a-beggar-for-a-week/132732.  Shyam Prasad S, City’s worst kept secret throws up 264 skeletons, Bangalore Mirror (Aug. 1, 2015, 04:00 AM), https://bangaloremirror.indiatimes.com/bangalore/others/skeletons-central-relief-committee/articleshow/48301323.cms.  Madhu Kishwar, Persecution of Nat families under flawed legal system, Sunday Guardian Live (Dec. 16, 2017, 8:54 PM), https://www.sundayguardianlive.com/lifestyle/11982-persecution-nat-families-under-flawed-legal-system.