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.’ 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 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.

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 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.