Mumbai Police’s crackdown on beggars is colonial nostalgia and a constitutional nightmare – Part II

 

MUMBAI POLICE’S CRACKDOWN ON BEGGARS IS COLONIAL NOSTALGIA AND A CONSTITUTIONAL NIGHTMARE  (PART II)


Shushovan Patnaik, Dev Vrat Arya; 2nd Year, B.A. LL.B(Hons.), West Bengal National University of Juridical Sciences Kolkata  


[In Part I, the authors established that the recent crackdown orchestrated by the Mumbai Police upon Mumbai’s beggars has a legitimate legal foundation in Indian jurisprudence, and further, that much of this foundation is colonial. They further noted that the Mumbai police’s objective of eradicating child beggary by waging a brutal onslaught upon both voluntary, and involuntary beggars violates intrinsic fundamental rights. Part II is dedicated to analysing the emerging jurisprudence on beggary in India, its relationship to the current crackdown in Mumbai, and the necessity to develop an appropriate rehabilitative model in this context]


Incompatibility with an emerging, progressive jurisprudence

It is interesting to note that while Mumbai’s recent policy derives significant legitimacy from pre-existing laws, an alternative jurisprudence has emerged in very recent years that has, in fact, employed a strong human rights perception to anti-begging law-making. Courts have more boldly tackled these laws acknowledging their oppressive flavours and their contravention to fundamental rights enshrined in our Constitution.

The Bombay Prevention of Begging Act, itself, quite interestingly has been declared to be completely unconstitutional, albeit in a different rendition. In 2018, in Harsh Mander v. Union of India, the Delhi High Court struck down the Bombay Prevention of Begging Act, 1960, as applicable to the NCT of Delhi, observing that the criminalization of begging violated the fundamental right to equality, freedom of speech and expression, and the right to life and personal liberty. The then Acting Chief Justice Gita Mittal in the final judgement wrote,

Criminalizing begging is a wrong approach to deal 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.[1]

A year later, in a judgement spanning almost two-hundred pages, Gita Mittal, later the Chief Justice of the J&K High Court, furthered this jurisprudence in Suhail Rashid. While striking down Jammu and Kashmir’s begging law and its accompanying rules for violating Art. 14, 19, and 21, she wrote movingly,

It is obvious that the legislation is steeped in prejudice against poverty and premised on an absolute presumption of potential criminality of those faced with choicelessness, necessity and undeserved want of those who have no support at all, institutional or otherwise and are bereft of resources of any kind.[2]

Fall-outs of both Harsh Mander and Suhail Rashid have become evident in the past two years. Last year in November, the Allahabad High Court sought response from the State government on the State Law Commission’s Report demanding repeal of UP’s anti-begging law.[3] Subsequently, Chhattisgarh High Court has issued a notice to the State Government on a plea challenging the constitutionality of the Chhattisgarh Bhiksha Vritti Nivaran Adhiniyam, 1973 and its corresponding rules[4], which criminalise begging in the state. In the midst of this progressive counter-narrative, Mumbai’s new policy appears out-of-touch not only with sociological, but also jurisprudential realities.

 

A richer understanding of rehabilitation

Activists have validly pointed out that the Mumbai Police seems to have little plans of further rehabilitating beggars once they are detained in an overcrowded Chembur home.[5]  After all, to imagine that capture and detention of beggars effectively dissipates the crisis is merely colonial blindness. Since beggars have to be necessarily viewed, not as criminals, but as victims of failed social and political conditions, arriving at an appropriate model of rehabilitation should be the focal concern of any policy that seeks to deal with them.

Both states which continue to criminalise and those that have decriminalised begging continue to tackle with the problem of rehabilitation.[6] However, the former are evidently farther from that goal, simply because they are yet to employ a logically coherent narrative of the interplay of begging and human rights. For instance, in West Bengal, the Bengal Vagrancy Act, 1945 is thoughtful enough to seek employment conditions for beggars detained in the vagrancy centres. However, because it perceives beggars as subjects lacking sufficient agency, it simultaneously imposes a punishment of rigorous imprisonment for up-to one month for simply refusing to agree to be employed in whatever job the State seeks for them, thus punishing them for validly exercising their free speech rights.[7]

It is clear therefore, that unless Maharashtra decriminalises begging, legitimate rehabilitative goals cannot be attained. However, a simultaneous understanding also needs to be developed regarding firstly who it is who is most prone to beg in Mumbai, and secondly what reasons prompted such person to beg. TISS Mumbai’s project Koshish has observed that it is, inter alia the aged, abandoned, destitute, abused women, leprosy patients, drug addicts, and transgender individuals who are systemically vulnerable to be targeted by the laws.[8] Members of Denotified, Nomadic, and Semi-Nomadic Tribes, culturally associated with street performances, fortune telling and snake charming have also been recurrently affected by the Bombay law.[9] Therefore, the causes of begging traverse beyond economic hardships, and are intertwined with the need for bolstered drug-addiction rehabilitation programs, and other policies focussed on the very specific requirements of specific afflicted communities. The Brihanmumbai Municipal Corporation and the Mumbai Police are obviously yet to understand this complexity. 

Around the same week of Mumbai police initiating its crackdown, a Supreme Court bench of Ashok Bhushan and R. S. Reddy JJ. issued notice to the Centre and States seeking reasons for not decriminalising begging.[10] While a response is awaited, police officers in Mumbai continue to pick up homeless and helpless people on the streets, and detaining them in the middle of a pandemic, and the State continues to violate the fundamental rights of those whom it has already failed.

 

 

 

 



[1] Harsh Mander v. Union of India, 2018 SCC Online Del 10427, ¶31 (per Gita Mittal CJ.).

[2] Suhail Rashid Bhat v. State of Jammu and Kashmir & Ors 2019 SCC OnLine J&K 869, ¶274 (per Gita Mittal CJ.).

[3] Akshita Saxena, Allahabad High Court Seeks UP Govt's Response On State Law Commission's Report For Repealing Anti-Beggary Law [Read Order], LiveLaw, November 3, 2020, available at https://www.livelaw.in/news-updates/allahabad-high-court-seeks-up-govts-response-on-state-law-commissions-report-for-repealing-anti-beggary-law-read-order-165416 (Last visited on March 9, 2021).

[4] Akshita Saxena, Chhattisgarh HC Issues Notice on Plea Challenging Criminalization Of Beggary [Read Petition], Livelaw, February 4, 2020, available at https://www.livelaw.in/news-updates/chhattisgarh-hc-issues-notice-on-plea-challenging-criminalization-of-beggary-read-petition-152322.

[5] Anurag Kamble, Will Mumbai ever be begging-free?, February 14, 2021, available at https://www.mid-day.com/mumbai/mumbai-news/article/will-mumbai-ever-be-begging-free-23159739 (Last visited on March 9, 2021).

[6] News 18 India, Comprehensive Survey Needed For Rehabilitation Of Beggars: Rajendra Pal Gautam, October 11, 2020, available at https://www.news18.com/news/india/comprehensive-survey-needed-for-rehabilitation-of-beggars-rajendra-pal-gautam-2952071.html (Last visited on March 9, 2021).

[7] The Bengal Vagrancy Act, 1945, §18(2).

[8]  Vijay Raghavan & Mohammad Tarique, Penalising Poverty The Case of the Bombay Prevention of Begging Act, 1959, 53(22) Economic and Political Weekly 26 (2018).

[9] Id., at 27.

[10] PTI, SC notice to Centre on plea seeking repeal of provisions criminalising begging, February 10, 2021, available at https://www.hindustantimes.com/india-news/sc-notice-to-centre-on-plea-seeking-repeal-of-provisions-criminalising-begging-101612975167238.html (Last visited on March 9, 2021).

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