Begging not an offence in Delhi as criminalising it violates fundamental right: HC
Criminalising begging violates the most fundamental rights of some of the most vulnerable people in our society.
Begging in the national capital will no more be treated as an offense with the Delhi High Court today quashing the legal provisions that criminalize it, holding that people beg on the streets not because of their wish but as a "last resort" to meet their needs.
Criminalising begging violates the most fundamental rights of some of the most vulnerable people in our society. The court said as it blamed the state for not being able to ensure even the bare essentials of the right to life for all its citizens.
The court further said criminalizing begging was a wrong approach to deal with the underlying causes of the problem and it ignored the reality that people who beg were the poorest and marginalized in society.
Observing that begging is a symptom of a disease, a bench of acting Chief Justice Gita Mittal and Justice C Hari Shankar said people beg on the streets not because of a wish but due to needs and begging is their last resort to subsistence.
The court said the state cannot fail to do its duty to provide a decent life to its citizens and add insult to injury by arresting, detaining and imprisoning those who begin the search for essentials of bare survival, which is even below sustenance.
A person who is compelled to beg cannot be faulted for such actions in these circumstances and any legislation, penalizing them was in the teeth of Article 21 (protection of life and liberty) of the Constitution.
"Begging is a symptom of a disease, of the fact that the person has fallen through the socially created net. The government has the mandate to provide social security for everyone, to ensure that all citizens have basic facilities, and the presence of beggars is evidence that the state has not managed to provide these to all its citizens," it said.
The bench said the provisions of the Bombay Prevention of Begging Act, 1959, which treats begging as an offense cannot sustain constitutional scrutiny and deserved to be struck down.
Currently, there is no central law on begging and destitution and most states have adopted the Bombay Prevention of Begging Act, 1959, which criminalizes begging or have modeled their laws on it.
"If we want to eradicate begging, artificial means to make beggars invisible will not suffice. A move to criminalize them will make them invisible without addressing the root cause of the problem. The root cause is poverty, which has many structural reasons: no access to education, social protection, discrimination based on caste and ethnicity, landlessness, physical and mental challenges, and isolation."
The bench said the inevitable consequence of this verdict would be that the prosecutions under the Act against those who are alleged to have committed the offense of begging, would be liable to be struck down.
"The power to do so would, however, appropriately vest in the courts seized of such prosecutions, and we, therefore, limit ourselves to observing that the fate of such prosecutions, if any, would have to abide by the present judgement, and our observations and findings contained herein," the court said in a 23-page judgement.
The court said the state is at liberty to bring in an alternative legislation to curb any racket of forced begging after undertaking an empirical examination on the sociological and economic aspect of the matter.
The court verdict came on two PILs by Harsh Mander and Karnika Sawhney seeking to decriminalize begging and for basic human and fundamental rights of beggars in the national capital.
The central government had said it cannot decriminalize begging and there were sufficient checks and balances in the Act which criminalizes this act.
The bench observed, "It remains a hard reality that the State has not been able to ensure even the bare essentials of the right to life to all its citizens, even in Delhi. We find reports of starvation deaths in the newspapers and ensuring education to the 6 to 14-year-old remains a challenge."
"Criminalising begging violates the most fundamental rights of some of the most vulnerable people in our society. People in this stratum do not have access to basic necessities such as food, shelter, and health, and in addition criminalizing them denies them the basic fundamental right to communicate and seek to deal with their plight," it said.
Supporting its decision, the bench mentioned the futility of lodging and detaining beggars in beggars homes, leading to wastage of public funds.
While striking down 25 sections of the Act, the court said "these provisions either treat begging as an offence committed by the beggar, or deals with ancillary issues such as powers of officers to deal with the said offence, the nature of enquiry to be conducted therein, punishments and penalties to be awarded for the offence. the institutions to which such 'offenders' could be committed and procedures following the awarding of sentence for committing the said offense.
"These provisions, in our view, cannot sustain constitutional scrutiny and, therefore, deserve to be struck down."
It said the remaining provisions of the Act, which do not directly or indirectly criminalise begging, or relate to the 'offence' of begging, such as section 11 ( penalty for employing or causing persons to beg or using them for purposes of begging) and other provisions which deal with the nature of offences under the Act, appeals, the power to frame rules and removal of difficulties, would not be required to be struck down and are therefore, maintained.
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