Mumbai Police’s crackdown on beggars is colonial nostalgia and a constitutional nightmare – Part I
Mumbai Police’s crackdown on beggars is colonial nostalgia and a constitutional
nightmare (Part I)
Author’s Note: The NUJS Legal Aid Society has been
dedicatedly working on the cause of decriminalisation of beggary in West Bengal
for three years now and has undertaken advanced research into the subject. In
2018, we filed applications to the Controller of Vagrancy under the Right to
Information Act, 2005, through which we were able to gauge the grassroots
implications of such laws, and their persisting usage against the most
economically depressed, politically dismissed, and socially marginalised
population in Kolkata. Currently, we are in the process of filing a
writ-petition in the Calcutta High Court, challenging the constitutionality of
the archaic,
classist, and constitutionally untenable provisions of the Bengal Vagrancy Act,
1943 and its corresponding rules, which criminalise beggary in Kolkata, Howrah,
and North 24 Parganas.
In
the earlier half of February this year, Mumbai’s Joint Commissioner of Police
(Law and Order) addressed senior police officials across all police stations,
commanding them to launch, what several local and few national news outlets
termed, a ‘crackdown’ on the beggars on Mumbai’s streets.[1] Following such crackdown,
by mid-February, some fourteen beggars had been arrested, produced in court and
detained in a detention centre in Chembur, resembling the vagrancy centres in
Kolkata.[2] While the term ‘crackdown’
has acquired certain infamy in contemporary times, what with, police brutality,
the farmer’s protests in New Delhi, and the overall criminalisation of dissent,
it doesn’t quite escape our observation that the evident connotation of such
phraseology is the criminalisation of the very perception of beggary.
The
move appears to be a flagellation of the Mumbai Police’s larger Operation
All-Out, launched earlier this year to nab drug-peddlers and absconding
criminals, in the first phase of which, fifty beggars had also been detained
unreasonably.[3]
It isn’t far-fetched to say that the police and the state then are essentially
conflating beggary with petty criminality and as something that fuels and
sustains criminal conditions in the city.
To
be fair, the policy framework does possess a completely valid legal basis.
Mumbai Police itself has noted that the current policy is in pursuance of the
Bombay Prevention of Begging Act, 1959, a post-constitutional law with the
lingering flavours of pre-constitutional law-making,[4] which criminalises
beggary, and the appearance of being a beggar, or as Usha Ramanathan puts it,
‘ostensible poverty’.[5] §2(i) of the Act defines a beggar as “a person
soliciting/ performing for alms or someone “having no visible means of
subsistence and wandering about or remaining in any public place in such
condition or manner, as makes it likely that the person doing so
exist soliciting or receiving alms”.[6] The vague definition of
who may be understood to be a beggar under the law has received repeated, and
legitimate constitutional criticisms.
Of
course, the Bombay Act is far from being the only such legislation. Beggary has
been legislated upon under the State List of Schedule 7 of the Constitution,
and subsequently, at least as of 2010, twenty states - Andhra Pradesh, Assam,
Jammu and Kashmir, Maharashtra, and West Bengal, among others, and two union
territories - Daman and Diu, and Delhi had Anti-Begging Legislations.[7] Each of these laws suffer
from very similar interpretational ambiguities, absence of genuine
rehabilitative solutions, and a tendency of conflating beggary with gross
crimes against society.
The
Mumbai Police’s recent crackdown, therefore, is merely in pursuance of a
particular policymaking culture. It nonetheless forces our attention back to
the more pertinent questions regarding the purpose of such policymaking. The
Mumbai Police has supplied two primary reasons for the recent crackdown – firstly,
that begging is a social crime, and gives a bad image to the city, alluding
that the ‘Zero-Beggars’ drive, is, in the truest sense, a beautification drive,[8] and secondly, that
this is in furtherance of the ‘Eradication of Child Begging’ campaign launched
by the police in September last year, which hopes to place a check over the
menace of child begging across Mumbai’s traffic signals and busy streets.[9]
Notably,
anti-begging law-making, as a whole in India, has persistently grappled with the
dual objectives of cleansing city streets, and eradicating forced beggary.
However, while the former objective has been, time and again, noted to be
founded on blatantly colonial and discriminatory belief systems, the latter
priority, albeit urgent, remains disjunct with the legal framework adopted to
achieve it.
Famines, Classism, and the Colonialist overtones of “cleansing
city streets”
In the late 19th century, many regions of
colonial India and especially Presidency Towns were hit by a series of famines
and epidemics which accounted for more than fifty-million deaths in the
country. One of the main towns affected was Bombay. Between 1876-1878, the great famine resulted in an influx of refugees affected by the famine into the
city. These refugees settled in colonies in the slum areas around the city. The
colonial authorities assumed the slums overpopulated by refugees to be the
centre-point of the disease.[10]
Prashant Kidambi in his book “The Making of an Indian Metropolis: Colonial Governance and Public
Culture in Bombay, 1890-1920”,
writes that the policies formed by the colonial state were motivated by a class
biasness.[11]
In order to tackle and block the beggars on the streets of Bombay, the colonial
government promulgated the Bombay City Police Act in 1902.[12]
The rule considered beggars extremely filthy in their habits. Under the law
suspected beggars were to be monitored and if anyone was found asking for alms,
they were to be held criminally liable.[13]
In 1920, a committee was set up to reconsider the 1902 Act. The committee noted
that the Act of 1902 did not afford adequate power to police and magistrate. It
also recommended recognition of begging as a cognizable offence. The
recommendations of this report were incorporated into a new law, and thus
emerged the Bombay Prevention of Begging Act, 1959.[14]
The historicity of anti-begging lawmaking suggests,
therefore, that the very conception of criminalizing beggary has been based on
prejudicial perceptions of public health and poverty, perceptions employed from
elitist positionalities, that were never meant to serve the interests of
India’s marginalized native communities. The current crackdown also, by virtue
of its fundamental focus on cleansing Mumbai’s soiled streets by making the
poor disappear, quite literally, is a continuation of this classist and racist
culture of colonial lawmaking.
Overbroad
policymaking and the challenge of involuntary begging
While
it is not really contentious that forced begging is a blatant violation of
fundamental rights, and most prominently impacts underprivileged children and
their families, the prescribed route undertaken by the anti-begging laws, and
Mumbai’s new policy is hugely misaligned with the objective in sight. Overbroad
policymaking is primarily to blame.[15]
When
we recall the definition of ‘beggar’ under the Bombay law, we observe that the
law suffers from significant overinclusion. What is meant by this, is that, the
law never differentiates between those who actually beg, and those who, by
their appearance, are likely to beg. Similarly, it makes no distinction
between those who beg under coercion, and influence of family or criminal
syndicates, and those who beg voluntarily, out of necessity, poverty,
marginalisation or a number of factors.[16] As such, it
‘over-includes’ within its ambit those who beg out of volition. In Suhail
Rashid Bhat v. State of Jammu and Kashmir (‘Suhail Rashid’), this
specific characteristic of overinclusion under the Jammu and Kashmir Prevention
of Beggary Act, 1960, was noted to have failed the ‘intelligible differentia’
test, thus violating Art. 14 of the Constitution.[17] Notably, the definition
of ‘beggar’ under the J&K Act was in pari materia to how it is
defined under the Bombay law.[18] The Mumbai Police does
nothing to rectify this myopic conflation of ‘involuntary begging’ which is
sought to be controlled, and ‘voluntary begging’, which is merely an offshoot
of Mumbai’s gross class and caste inequalities.
[In
Part II of this blog, the authors speculate upon a progressive jurisprudence
that has emerged since 2018, that has focussed more sincerely upon the nature
of anti-begging legislations, and pushed for the decriminalisation of beggary.
They further note the compatibility of the Mumbai Police’s recent policy with
this emerging jurisprudence, and discuss the most appropriate rehabilitative
model that may be adopted in the context of India’s beggary situation]
[1] Mustafa Shaikh, ‘Begging
a social crime': Mumbai Police starts drive to make city beggar free, IndiaToday, February 14, 2021, available
at
https://www.indiatoday.in/india/story/mumbai-police-drive-to-make-city-begging-free-1769144-2021-02-14
(Last visited on March 9, 2021).
[2] Express
News Service, Mumbai: 14 beggars detained, lodged at home, February 13,
2021, available at
https://indianexpress.com/article/cities/mumbai/14-beggars-detained-lodged-at-home-7187546/
(Last visited on March 9, 2021).
[3] Mumbai Live
Team, Mumbai Police Conducts 'Operation All-Out' At 259 Locations Across The
City, February 15, 2021, available at
https://www.mumbailive.com/en/crime/mumbai-police-operation-all-out-61574 (Last
visited on March 9, 2021).
[4] Special reference may
be made in this regard to the Bengal Vagrancy Act, 1943, and the corresponding
Bengal Vagrancy Rules, 1945, which are indeed pre-constitutional legislations,
and in many ways acted as the precursor to the Bombay Act. The Bengal Vagrancy
Act continues to be the law of the land across Kolkata as we enter the third
decade of the twenty-first century.
[5] Usha Ramanathan, Ostensible
Poverty, Beggary and the Law, 43(44) Economic
and Political Weekly 33 (2008).
[6] The Bombay
Prevention of Begging Act, 1959, §2(i).
[7] Press Information
Bureau, Government of India, Ministry of Social Justice & Empowerment, No
Authentic Data on Beggars, November 29, 2010, available at
https://pib.gov.in/newsite/PrintRelease.aspx?relid=67734 (Last visited on March
9, 2021).
[8] BusinessToday.In,
Mumbai Police launches 'Zero Beggars' drive to make city begging free,
February 15, 2021, available at
https://www.businesstoday.in/current/economy-politics/mumbai-police-launches-zero-beggars-drive-to-make-city-begging-free/story/431274.html
(Last visited on March 9, 2021).
[9] Dhananjay
Khatri, Mumbai police declare war against child beggars menace,
September 25, 2019, available at https://www.dnaindia.com/mumbai/report-mumbai-police-declare-war-against-child-beggars-menace-2792147
(Last visited on March 9, 2021).
[10] Unknown, Extraordinary
Influx from the Famine Districts of Bombay,
The Times of India,
August 25, 1877 available at https://drive.google.com/file/d/1ZAhAYT-FbHP1eaQjUciKqGXbcx2Q8sOE/view.
[11] Prashant Kidambi, The Making of an Indian Metropolis:
Colonial Governance and Public Culture in Bombay, 1890-1920 (2016).
[12] Manas
Raturi, Raj and the begging brawl: The colonial roots of India’s
anti-beggary laws echo even now, June 27, 2018, available at
https://www.theleaflet.in/raj-and-the-begging-brawl-the-colonial-roots-of-indias-anti-beggary-laws-echo-even-now/#
(Last visited on March 9, 2021).
[13] supra note 11.
[14] supra note 12.
[15] Rina Chandran, Begging is not a crime, Delhi High Court rules, Reuters, August 9, 2018, available at https://www.reuters.com/article/india-homelessness-lawmaking-idINKBN1KU1FH?edition-redirect=in (Last visited on March 9, 2021); Definitional overbreadth has been characteristic to anti-begging laws across geographies and eras. See, generally, Robert Teir, Maintaining Safety and Civility in Public Spaces: A Constitutional Approach to Aggressive Begging, 54(2) La. L. Rev. 332 (1993).
[16] Dushyant
Thakur, Delhi High Court on Beggary: Law Untangled but not Completely,
September 18, 2018, Law and Other Things,
available at
https://lawandotherthings.com/2018/09/delhi-high-court-on-beggary-law-untangled-but-not-completely/
(Last visited on March 9, 2021).
[17] Suhail
Rashid Bhat v. State of Jammu and Kashmir & Ors 2019 SCC OnLine J&K
869, ¶222 (per Gita Mittal CJ.).
[18] Jammu and Kashmir
Prevention of Beggary Act, 1960, §2(a).
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