J&K HC Decriminalises Begging in the State

On October 25, 2019, the Jammu and Kashmir High Court struck down the Jammu & Kashmir Prevention of Beggary Act, 1960 as well as the Jammu & Kashmir Prevention of Beggary Rules, 1964, and declared the criminalization of beggary to be unconstitutional.

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Residents of the State of Jammu & Kashmir are guaranteed fundamental rights envisioned in Part III of the Constitution of Indiawas made applicable to Jammu and Kashmir by virtue of the Constitution (Application to Jammu and Kashmir) Order, 1954.Chief Justice Gita Mittal and Justice Rajesh Bindal presided over the Public Interest Litigation (PIL) filed by Advocate Suhail Rashid Bhatin which the Petitioner contended that the legislation runs contrary to the rights encapsulated in Articles 14, 19 and21 of the Constitution.

Here’s a look into the reasoning elucidated byJusticeMittal in the judgement.

Scope of Judicial Review

The Justice quoted the 2018 SC judgement which decriminalized Section 377 of the Indian Penal Code to say that the power of judicial review extends to scrutinising whether a law creating an offence is manifestly arbitrary in its encroachment on fundamental liberties, and that the constitutional authority entrusted with the legislatures is bound by the mandate of the constitution.

The rationale behind the legislation

Justice Mittal notes that while the practice of giving alms was considered virtuous in Hinduism, Jainism, Buddhism, Islam, and even in middle age Europe, the focus as to the act shifted from the virtue of the person giving charity 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.

It was in the 1920’s that begging was for the first time criminalized in British India. This was part of the ethos in which efforts were made to subjugate certain communities imputing criminality to them. (as the Criminal Tribes Act, 1871 notified in India). West Bengal came up with the first law, followed by Mysore and then Madras.By 1947, eighteen Indian states had laws criminalizing beggary. Even in the post-colonial era, this very law came to be updated as the Bombay Prevention of Begging Act, 1959 which was extended to all Indian states including, in 1960, to the Union Territory of Delhi.It is noteworthy that the Jammu & Kashmir State legislature enacted the “Jammu & Kashmir Prevention of Beggary Act, 1960”, which was applicable to the entire State of Jammu and Kashmir, received the assent of the Sadar-i-Riyasat on 16th October, 1960 and was published in the Government Gazette on 6th December, 1960. The Act became enforceable on 01.01.1965 within the municipal limits of cities of Jammu and Srinagar and Town Area Committees of Udhampur, Kathua, Baramulla, Anantnag, Sopore, Katra, Jammu by Notification No.SRO 298, dated 16.09.1964.

Begging is a failure of the Government to discharge its constitutional duty

The judge observed that the practice of begging is inextricably linked to poverty, but beggars are often perceived as lazy by the common folk. Unlike the common and even legislative presumption, people don’tbeg on the street because they desire to do so but out of ultimate need. These presumptions necessarily overlook the fact that it is impossible for even educated and trained people to always find employment.

She stated that begging is their last resort to procure subsistence, and is a manifestation of the fact that the person has fallen through the socially created net. She holds begging to be a failure of state responsibility, saying that it is evidence of the fact that the State has failed to ensure that all citizens have even the basic essential facilities. Judicial notice can be taken of the hard reality that the State has not been able to ensure these bare necessities of the right to life to all its citizens.

She notes that this amounts to failure inthe prime object of the State envisaged under Section 13 of the Constitution of Jammu& Kashmir, 1956, to promote welfare of the mass of the people by establishing and preserving a socialist order of society wherein all exploitation of man has been abolished and wherein justice informs all the institutions of national life.

She also quotes Section 23 of the Constitution later in the judgement, which providesfor the protection of educational, material and culturalinterests of socially and economically backward sections.

The Legislation curtails a beggar’s rights guaranteed under Article 19 of the Constitution

A beggar’s communication of his plight by speech and the action to seekalms is protected under Article 19 of the Indian Constitution, the judgement notes. Merely because exercise of the right is perceived as a “nuisance” by some peoplewould not justify the absolute restriction on exercise of the right by any lawwhich could be treated as a reasonable restriction permissible under Article19(2), and the restrictions imposed on the freedom of speech and expression by the Act cannot be considered reasonable.Legislation which arbitrarily or excessively invaded the right could not be said to contain the quality of reasonableness, the judge stated.

Directive principles and international obligations

Justice Mittal held that the Constitution of India in its directive principles specifically mandates aiming its policies towards providing social security to meet allcases. She further stated that the prescription under Article 39 of the Constitution of India and Part IV of Constitution of Jammu & Kashmir has been completely overlooked while enacting and implementing the provisions ofthe Jammu & Kashmir Prevention of Beggary Act, 1960, and the Rules framed there under.

She also further held that penal provisions must conform to the principles of the International Law and instruments that India has ratified. Since India has ratified the Universal Declaration of Human Rights (UDHR) and the International Convention on Civil and Political Rights (ICCPR), the nation’s laws must protect persons from being subjected to arbitrary interference with their privacy, family, home or correspondence, nor to attacks upon their honour and Interesting, Justice Mittal was also the judge to pronounce various sections of the colonial Bombay Prevention of Begging Act, 1959 (as extended to Delhi NCT) as unconstitutional. That public interest litigation was initiated by Harsh Mander and KarnikaSawhney, asking the court to strike down these provisions on grounds that they violate Articles 14-22 of the IndianConstitution.

The order of the court may be read here.


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