Anti-Beggary: Constitutional Act for disabled and unemployable

Anti-begging Constitutional Measures for Rehabilitation of Beggars in India

12 FEB 2019

Begging in India

The practice of giving alms to others including beggars was and is still considered a virtuous act. Traditionally, giving of “bhiksha” (alms) is popular in Hinduism, Jainism and Buddhism. Buddhists valorize begging by noble persons for the reason that it enables them to imbibe humility and empowers them to break all forms of material bondage. The Muslim religion believes in “Zakat” which means charity. In the middle ages, even in Europe and Britain, beggary was an accepted practice of providing succor to the needy, an act considered to be at par with prayer. The focus subsequently changed to assessments of character and of the deservedness of a beggar. Slowly this further led to a consideration of whether those not working were fraudulent and immoral. During the Victorian era beggary was considered to embody laziness and moral degeneration. It is a fact that begging is not only a universal issue but is an age-old social phenomenon. However, criminalization of begging is a development of colonial construction.

Commonly, begging has been defined as conduct by which a person seeks assistance, either by asking for food, clothing, money, or, expressing need through clear form of communication which may include a sign, a donation cup or utensil or even an outstretched hand. The beggar’s solicitations may include out pouring of their pathetic condition, showering of blessings etc., sometimes it may include social or political solicitations or exhortations. Often, without any element of a spoken word, the very presence of an impoverished person, holding out his or her hand or a utensil to receive a donation, by itself conveys a message that he is in need of support and assistance.

Begging and Freedom of speech

Begging, thus, undoubtedly involves communication of some kind conveying the plight of the beggar. Such communication could be verbal or by actions. It could be even by mere physical presence, when, by his very pitiable appearance, the needs of a beggar are conveyed to the viewer.

The act of begging thus entails nothing more than peaceful communication with strangers, verbally or non-verbally, conveying a request for assistance. Such communicative activity is necessarily part of the valuable right of freedom of speech and expression guaranteed to all under Article 19(1)(a) of the Constitution of India.

It is necessary to examine the contours of the expression “freedom of speech and expression” as guaranteed under Article 19(1)(a) and the Article 19(2). So far as this expression and restrictions thereon are concerned, the enunciation of the principles by R.F. Nariman, J, in the judgment reported at (2015) 5 SCC 1 Shreya Singhal v. Union of India, explains this concept completely when it has been stated thus:

“13. This leads us to a discussion of what is the content of the expression “freedom of speech and expression”. There are three concepts which are fundamental in understanding the reach of this most basic of human rights. The first is discussion, the second is advocacy, and the third is incitement. Mere discussion or even advocacy of a particular cause howsoever unpopular is at the heart of Article 19(1)(a). It is only when such discussion or advocacy reaches the level of incitement that Article 19(2) kicks in. It is at this stage that a law may be made curtailing the speech or expression that leads inexorably to or tends to cause public disorder or tends to cause or tends to affect the sovereignty & integrity of India, the security of the State, friendly relations with foreign States, etc.

The Constitutional scheme which enables curtailment of freedom of speech has been the subject matter of several judicial precedents. In the judgment of the Supreme Court reported at AIR 1962 SC 305 Sakal Papers (P) Ltd. v. Union of India, the Supreme Court has in the following terms stated that it was not open to the State to curtail freedom of speech to promote the general public interests or better enjoyment of another freedom:

“It may well be within the power of the State to place, in the interest of the general public, restrictions upon the right of a citizen to carry on business but it is not open to the State to achieve this object by directly and immediately curtailing any other freedom of that citizen guaranteed by the Constitution and which is not susceptible of abridgment on the same grounds as are set out in clause (6) of Article 19. Therefore, the right of freedom of speech cannot be taken away with the object of placing restrictions on the business activities of a citizen. Freedom of speech can be restricted only in the interests of the security of the State, friendly relations with foreign State, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. It cannot, like the freedom to carry on business, be curtailed in the interest of the general public. If a law directly affecting itis challenged, it is no answer that the restrictions enacted by it are justifiable under clauses (3) to (6).For, the scheme of Article 19 is to enumerate different freedoms separately and then to specify the extent of restrictions to which they may be subjected and the objects for securing which this could be done. A citizen is entitled to enjoy each and every one of the freedoms together and clause (1) does not prefer one freedom to another. That is the plain meaning of this clause. It follows from this that the State cannot make a law which directly restricts one freedom even for securing the better enjoyment of another freedom. All the greater reason, therefore for holding that the State cannot directly restrict one freedom by placing an otherwise permissible restriction on another freedom.”

Begging, freedom of expression, and reasonable restriction

In Superintendent Central Prison v. Ram Manohar Lohia (AIR 1960 SC 633), the Supreme Court explained the expression “in the interest of” as appears in Article 19(2) in the following terms;

“………We do not understand the observations of the Chief Justice to mean that any remote or fanciful connection between the impugned Act and the public order would be sufficient to sustain its validity. The learned Chief Justice was only making a distinction between an Act which expressly and directly purported to maintain public order and one which did not expressly state the said purpose but left it to be implied there from; and between an Act that directly maintained public order and that indirectly brought about the same result. The distinction does not ignore the necessity for intimate connection between the Act and the public order sought to be maintained by the Act.

…………. The restriction made “in the interests of public order” must also have reasonable relation to the object to be achieved, i.e., the public order. If the restriction has no proximate relationship to the achievement of public order, it cannot be said that the restriction is a reasonable restriction within the meaning of the said clause……….The decision, in our view, lays down the correct test. The limitation imposed in the interests of public order to be a reasonable restriction, should be one which has a proximate connection or nexus with public order, but not one far-fetched, hypothetical or problematical or too remote in the chain of its relation with the public order……….

…………..There is no proximate or even foreseeable connection between such instigation and the public order sought to be protected under section. We cannot accept the argument of the learned Advocate General that instigation of a single individual not to pay tax or dues is a spark which may in the long run ignite a revolutionary movement destroying public order.”

Restrictions or prohibition which impact the fundamental rights guaranteed under Article 19(1)(a) must be in the narrowest terms. In the pronouncement of the Supreme Court reported at AIR 1962 SC 955 Kedar Nath Singh v. State of Bihar, the constitutionality of Sections 124A and 505 of the Indian Penal Code was called into question on the ground that the restrictions imposed by the impugned provisions violated the fundamental right of freedom of speech and expression guaranteed under Article 19(1)(a) of the petitioner and the restrictions imposed by the impugned provisions were not within the permissible limits under Article 19(2) of the Constitution. While examining the constitutionality of the enactment, the court made certain pertinent observations on the manner in which statutory provisions are required to be interpreted which facilitate our consideration as well. In para 26 of the judgment, the court had observed as follows:

“26……….It is well settled that if certain provisions of law construed in one way would make them consistent with the Constitution, and another interpretation would render them unconstitutional, the Court would lean in favour of the former construction. The provisions of the sections read as a whole, along with the explanations, make it reasonably clear that the sections aim at rendering penal only such activities as would be intended, or have a tendency, to create disorder or disturbance of public peace by resort to violence. As already pointed out, the explanations appended to the main body of the section make it clear that criticism of public measures or comment on Government action, however strongly worded, would be within reasonable limits and would be consistent with the fundamental right of freedom of speech and expression. It is only when the words, written or spoken, etc. which have the pernicious tendency or intention of creating public disorder or disturbance of law and order that the law steps in to prevent such activities in the interest of public order.

So construed, the section, in our opinion, strikes the correct balance between individual fundamental rights and the interest of public order. It is also well settled that in interpreting an enactment the Court should have regard not merely to the literal meaning of the words used, but also take into consideration the antecedent history of the legislation, its purpose and the mischief it seeks to suppress vide (1)Bengal Immunity Co. Ltd. v. The State of Bihar, 1955-2 SCR 603 : ((S) AIR 1955 SC 661) and (2) R. M. D. Chamarbaugwalla v. Union of India, 1957 SCR 930 : ((S) AIR 1957 SC 628). Viewed in that light, we have no hesitation in so construing the provisions of the sections impugned in these cases as to limit their application to acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence.”

The Stand of the Indian Government

Anti-begging – As per the 7^th Schedule of the Constitution of India and under serial no. 9 of the State List, the subject matter of “Relief of the disabled and unemployable” comes under the purview of the State List. The States are responsible for taking necessary preventive and rehabilitative steps. As per available information, as many as 20 States and 2 Union Territories have either enacted their own Anti-Beggary Legislation or adopted legislations enacted by other States/UTs.

The Ministry of Social Justice and Empowerment released an amount of Rs. One crore during 2017-18 & fifty lakhs during 2018-19 to National Backward Classes Finance & Development Corporation (NBCFDC) for skill development programmes for beggars on a pilot basis.

Anti-Beggary Movement

According to NBCFDC, an MoU has been signed with NGOs/VOs for mobilizing & handholding 400 members of the beggar’s community in five districts of Ghaziabad, Rampur, Moradabad, Madhepura and Kolkata for providing skill training programme through Government Training Institutes and Sector Skill Councils in Handicraft, logistics apparel & Furniture trades.

Ministry of Women and Child Development has informed that they are implementing Integrated Child Protection Scheme (ICPS) with the objective of creating a safe and secure environment for children in need of care and protection including those children who are found begging. Under ICPS, financial assistance is provided to the State Governments/UT Administrations for, inter-alia, undertaking a situational analysis of children in difficult circumstances, for setting up and maintenance of various types of Child Care Institutions (CCIs).

The Scheme provides institutional care through CCIs. As a rehabilitative measure in these CCIs, children are provided age-appropriate education either within the institution or outside in a formal education system through convergence with other schemes and programs of the Government or Civil Society.

As per available information, 20 States and 2 Union Territories have anti-beggary laws as shown in the table below.  Shelter homes/ institutions for beggars are functioning in Gujarat, Karnataka, Madhya Pradesh, Maharashtra, Uttar Pradesh, Uttarakhand, West Bengal and Delhi.

Existing State Anti Beggary Laws

This information was given by Minister of State for Social Justice and Empowerment Shri Vijay Sampla in a written reply in Lok Sabha today.

Court cases

The Supreme Court has emphasised that food, clothing and shelter constitute the essential needs of every human being in (1990) 1 SCC 520 Shantistar Builders v. Narayan Khimalal Totame the Supreme Court held thus:

“9. Basic needs of man have traditionally been accepted to be three — food, clothing and shelter. The right to life is guaranteed in any civilized society. That would take within its sweep the right to food, the right to clothing, the right to decent environment and a reasonable accommodation to live in. The difference between the need of an animal and a human being for shelter has to be kept in view. For the animal it is the bare protection of the body; for a human being it has to be a suitable accommodation which would allow him to grow in every aspect — physical, mental and intellectual. The Constitution aims at ensuring fuller development of every child. That would be possible only if the child is in a proper home. It is not necessary that every citizen must be ensured of living in a well-built comfortable house but a reasonable home particularly for people in India can even be mud-built thatched house or a mud-built fire-proof accommodation.”

Protection of health of citizens, freedom and entitlement to live with human dignity with certain facilities was recognized in the judgment reported at AIR 1984 SC 802 Bandhua Mukti Morcha vs. Union of India & Ors. it was held as follows:

“10. … This right to live with human dignity enshrined in Article 21 derives its life breath from the Directive Principles of State Policy and particularly clauses (e) and (f) of Article 39 and Articles 41 and 42 and at the least, therefore, it must include protection of the health and strength of workers, men and women, and of the tender age of children against abuse, opportunities and facilities for children to develop in a healthy manner and in conditions of freedom and dignity, educational facilities, just and humane conditions of work and maternity relief. These are the minimum requirements which must exist in order to enable a person to live with human dignity and no State — neither the Central Government nor any State Government — has the right to take any action which will deprive a person of the enjoyment of these basic essentials.”

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Keywords

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Reference:

(0) The Jammu & Kashmir Prevention of Beggary Act, 1960, imposes a complete interdiction and prohibition on begging which is the beggars right of freedom of speech and expression guaranteed under Article 19(1)(a). We have extracted hereinabove the explanation given by the respondents for enacting the law in question. The definition of ‘begging’ as contained in the Jammu & Kashmir Prevention of Beggary Act, is at variance with the definition contained in the Bombay Prevention of Begging Act, 1959

(1) UAE’s Federal Law on Anti-begging-According to Federal Law No. 9 of 2018 on Anti-begging (100 KB PDF in Arabic), anyone caught begging in the UAE will be fined AED 5,000 and imprisoned for a term up to three months. Those operating professional gangs of beggars or recruiting people from outside the country to work as beggars face a jail term of not less than six months and a minimum fine of AED 100,000.

(2) Section 2(1) (i) Bombay Prevention of Begging Act, 1959 defines “Begging”. Section 4(1) allows the police to arrest the beggar without a warrant. Section 5 of the Act enables a summary enquiry by the court following which the person may be detained in a certified institution. Section 6 contemplates punishment for a person who had been previously detained in a Certified Institution under the act, upon his being found begging. The remaining provisions of Section 6 provide the quantum of detention or imprisonment, based on the repetition of convictions.

(3) It is well settled that the right to life is the right to live with dignity and with necessities of life required for it. The petitioner submits that this right includes the right to take steps including begging to survive and keep body and mind together (Gopalanachari v. State of Kerala AIR 1981 SC 674), Criminalisation of begging by the Act deprives a parson of the right to obtain basic necessities of life. The Act further requires people to make an unreasonable choice between committing a crime to be rehabilitated or not commit the crime and starve which goes against the spirit of the Constitution and violates Article 21.

(4) Criminalizing begging is a wrong approach to dealing with the underlying causes of the problem. It ignores the reality that people who beg are the poorest of the poor and marginalized in society. Criminalizing begging violates the most fundamental rights of some of the most vulnerable people in our society. People in this stratum do not have access to basic necessities such as food, shelter and health, and in addition, criminalizing them denies them the basic fundamental right to communicate and seek to deal with their plight………we declare Section Sections 4, 5, 6, 7, 8, 9, 10, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28 and 29 of the Bombay Prevention of Begging Act, 1959, as extended to Delhi, as unconstitutional and strike down the said provisions. (Delhi High Court -Harsh Mander & Anr. vs Uoi & Ors. on 8/08/2018

(5) A constitutional challenge to beggary was also laid before the Federal Court in Grand Rapids, Michigan, United States (U.S.Court of Appeal, 6th Cir., 2013) in James Speet and Ernest Sims v. Bill Schuette No.12-2213. The Federal Court held that begging or the soliciting of alms is a form of solicitation and speech protected by the First Amendment to the Constitution. The Court struck down the law prohibiting panhandling as being overly broad and violative of free speech and equality.

(6) In Austria, begging was criminalized under Section 29 of the Salzburg Land Security enactment. The constitutionality of this provision was challenged before the Constitutional Court of Austria in Case No. G155/10 in 2012. The enactment laid a complete ban on all forms of begging in public places including a prohibition from invoking other people’s plight in public places, say, for instance, the beggars standing or sitting in the street calling for help from passers by using a sign. It also banned invoking other people in any unobtrusive and non-aggressive manner of verbally asking for help. It was held by the Constitutional Court of Austria that the Act forbids solicitation of financial benefits in public places of foreign persons and silent forms of begging and was thus violative of the freedom of communications under Article 10 of the European Convention of Human Rights. We may usefully extract the relevant observations of the Court which read as follows:

“The comprehensive prohibition of any kind of begging in public places violates Article 10 of ECHR: According to the settled case law of the Constitutional Court Art 10 ECHR guarantees everyone freedom of communication. The scope of this provision, which includes the right of freedom of opinion and freedom to receive and communicate messages and ideas without interference from public authorities, covers not only pure publicity but also factual statements and advertising. The communication of facts is therefore also subject to the scope of Art 10 ECHR.”

(7) Supreme Court of Massachusetts in Craig Benefit v. City of Cambridge & Others 424 Mass. 918 (1997) whence it was stated thus:

“Begging is generally defined as speech in which the person seeking assistance either asks for money or expresses need through some other clear form of communication such as a sign, a donation cup, or an outstretched hand. Many times a beggar’s solicitations will be accompanied, as were the plaintiff’s, by communications that convey social or political messages. “Even without particularized speech, however, the presence of an unkempt and disheveled person holding out his or her hand or a cup to receive a donation itself conveys a message of need for support and assistance. We see little difference between those who solicit for organized charities and those who solicit for themselves in regard to the message conveyed. The former are communicating the needs of others while the latter are communicating their personal needs. Both solicit the charity of others.

The distinction is not a significant one for First Amendment purposes. Loper, supra at 704. Indeed, it would be illogical to restrict the right of the individual beggar to seek assistance for himself while protecting the right of a charitable organization to solicit funds on his behalf. Such a conclusion would require citizens to organize in order to avail themselves of free speech guarantees, a requirement that contradicts the policies underlying the First Amendment. We conclude, on the strength of the charitable solicitation cases cited above, that there is no distinction of constitutional dimension between soliciting funds for oneself and for charities and therefore that peaceful begging constitutes communicative activity protected by the First Amendment. [Note 4]”