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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