18/09/2018 Delhi High Court on Beggary: Law Untangled but not Completely   | Law and Other Things

Law and Other Things

A Blog About India's Laws and Legal System, its Courts, and its Constitution

Delhi High Court on Beggary: Law

Untangled but not Completely  
On September 18, 2018 | By Dushyant Thakur | In Constitutional Law, Delhi High
Court, Discrimination, Fundamental Rights, Judgment Analysis, Legislative Reform

A Division Bench of the Delhi High Court declared as many as twenty-five sections of
the Bombay Prevention of Begging Act, 1959 as unconstitutional. The Act made
beggary an offence and provided for custody, trial and punishment of such ‘offenders.’

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18/09/2018 Delhi High Court on Beggary: Law Untangled but not Completely   | Law and Other Things

In this post, I analyse certain aspects which have been left unanswered by the Delhi
High Court. I further propose that the Central Government should come up with a
uniform central legislation adopting a rehabilitative approach to the question of
begging- rather than relying on the respective state governments to enact their own
legislations.

Unaddressed issues in the Judgment

The petitioners in this case had argued that the Begging Act violated Article 14 of the
Constitution by failing to make any distinction between person who solicit or receive
money for authorized purposes and those who solicit money by way of singing,
dancing, or engaged in similar activities. While the Government favoured the
decriminalisation of begging on account of poverty; it however, argued for criminalising
begging engaged into not on account of poverty or on account of force or coercion. The
Court concluded that Sections 2(1)(i), 4, 5 and 6 of the Act were violative of Article 14
for being arbitrary as they did not make a distinction between voluntary and involuntary
begging.

However, the Court did not endeavour to define the contours of voluntary and
involuntary begging and what all it would cover. Moreover, on a further reading, it
seems that the Court has not prohibited the law against “specific types of forced
beggary” to “curb the racket of forced begging.” This can also be justified by noting that
Section 11 of the Act has not been declared as unconstitutional which penalizes any
person who employs or causes any person to beg or uses them for the purpose of
begging.

Although the court has not expressed what it actually means by forced beggary, a
functional understanding of the same would include a situation in which someone is
forced to beg. One major feature of this involuntary nature of the act is the use of
external force to subjugate someone to beg. Although not explicitly stated so by the
Court, another situation which can be covered within the ambit of involuntary begging is
when a person being forced to beg on account of poverty. Accordingly, the content of
involuntary begging includes forced begging and begging by virtue of poverty. Further,
the content of voluntary begging will include the situation, as has been claimed by the

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18/09/2018 Delhi High Court on Beggary: Law Untangled but not Completely   | Law and Other Things

Government, when a person wilfully engages in begging even if he is well off. Such
form or cause of begging, which is not on account of social causes or poverty, has also
been recognised elsewhere. Contrary to what was being suggested by the
Government, the Court did not find any classification of voluntary and involuntary
begging (¶¶ 6 and 15-19).

If understood in this way, the Court seems to be in favour of criminalising voluntary

begging and forced begging, while only in favour of decriminalising the situation when a
person engages in begging on account of poverty. This understanding implied by the
judgment goes in contravention to declaring begging amounting to a crime to be
unconstitutional. Accordingly, in the absence of defining the extent of voluntary and
involuntary begging, the classification itself appears to be improper and unaddressed.

What could have been done?

A better way would have been to define the extent of voluntary and involuntary
begging. The Court could have included wilful begging, either by virtue of poverty or
not, within the meaning of voluntary begging. While, involuntary begging would have
only consisted forced begging. This classification could be justified on the ground of
protection of free will. Arguments would have been raised against this justification
claiming that the begging on account of poverty do not involve free will, given that
actions of such person are the result of the social conditions he is in. In other words,
such person is not the originator of his actions. However, these arguments could have
been countered through the reasons-responsiveness theory. According to the theory,
actions of a person are free willed if they are in response to some rational
consideration. The theory does not require the person to be originator of his actions. It
is sufficient that the person has the regulative control, and not merely the guidance
control over his actions. To illustrate, free will is present in a case when a person begs
either on account of poverty or not, given that he has regulative control over his
actions, i.e. begging. On the other hand, free will is not present in the case when he is
forced to beg under a racket, where he has mere guidance control over his actions.
Consequently, the court could have ensured the protection of the fundamental rights for
voluntary begging on account of begging, while favouring the criminalisation of the
forced or involuntary begging at the same time.

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18/09/2018 Delhi High Court on Beggary: Law Untangled but not Completely   | Law and Other Things

The petitioners also raised an objection against the Act basing the argument on Article
19(1)(a) of the Constitution. It was argued that soliciting is covered under the freedom
of speech and expression and the Act imposed unreasonable restrictions upon it. The
Court surprisingly did not decide upon this argument. However, it did refer to certain
paragraphs of the judgment in the case of Ram Lakhan v. State, which discusses how
begging is capable of being protected under Article 19(1)(a). The Delhi High Court
further stated that the quoted portion “shed light on the question under consideration.”
Taking this into consideration, the judgment appears to tilt in favour of providing the
protection of Article 19(1)(a) to begging, but, the Court refrained from directly deciding
upon the protection of begging under the Article and if the reasonable restrictions on
the ground of public order, decency or morality under Article 19(2) would be applicable
on the prohibition of begging. Resultantly, a lacuna has been left in the judgment by not
coming directly to the conclusion. Hence, it would not be safe to presume in favour of
either of the interpretations in absence of clear stand of the Court with respect to
begging and Article 19(1)(a).

A Way Forward

Government claimed that subject matter of relief of disabled and employable and
Public Health and sanitation, hospital and dispensaries come within the purview of the
State List under entry 9 and 6 respectively. Further, it was highlighted that twenty
States and two Union Territories have either their own or adopted legislation on
beggary. These laws are similar in their approach, relegating beggary to an offense. An
instance of the progressive approach to this problem which is found in the current
judgement remains limited to Delhi. A proper approach now would be to bring in a
uniform law for the entire country aiming at rehabilitating beggary and criminalising
“forced beggary” at the same time.

For this, the Union Government has the power to make law on begging under
“Vagrancy” found in entry 15 of the Concurrent List. It is worth noting that Union
Government attempted to come up with the Persons in Destitution (Protection, Care
and Rehabilitation) Model Bill of 2016, which was a positive shift towards rehabilitating
beggars. Admittedly, it had defects which were rightly pointed out by People’s Union for
Civil Liberties, Alternative Law Forum and Sadhana Mahila Sangha in their

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18/09/2018 Delhi High Court on Beggary: Law Untangled but not Completely   | Law and Other Things

submissions on the Bill. Certain instances of the same can be found with the definition
of “persons in destitution”, the unclear purpose of the identity cards for the persons
identified as destitute, a chapter on beggary offenders, etc. These defects could have
been rectified over time before it took the form of a legislation. However, much to
everyone’s dismay, the Bill was scrapped by the Union Government. The time would be
apt now to revive such an attempt, to ensure that the subject matter of beggary is
treated uniformly with a progressive mind-set.

Dushyant Thakur

Dushyant Thakur is a fourth-year student at Gujarat National Law University.

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Tagged with Article 14, Bombay Prevention of Begging Act 1959, Constitutional
Interpretation, Involuntary Begging, Judicial Accountability, Voluntary Begging

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