The Delhi high court in a landmark judgment (Harsh Mander v. Union of India and Karnika Sawhney v. Union of India) has held the Bombay Prevention of Begging Act, 1959, unconstitutional on grounds that it violates rights provided under Article 14 (equality before the law) and Article 21 (Right to Life and Personal Liberty) of persons who have no other means of sustenance but to seek alms for sustenance. The act of begging in Delhi was made a criminal offence after the Bombay Prevention of Begging Act, 1959, was extended to Delhi by a Central government amendment in 1960. Under the Act, a first time offender is penalised with detention in a beggars’ home for three years, extending up to ten years of detention for a subsequent offence.
The application of the Act, has been by and large, arbitrary and often leads to detention of poor persons who may not be engaged in begging, but could be daily wage workers, sex workers, homeless persons and as the court noted, “people who have fallen through the socially created net”. Criminalising begging violates the fundamental rights of the most vulnerable people in our society and ignores the reality that the poorest of the poor are forced to beg not as a choice but as the last resort owing to various socio-economic conditions. The judgment defends the right to life of poor persons who sustain life through begging, challenging the middle-class resentment towards ‘illegitimate denizens’.
Myopic, intolerant views
The Act reflects the myopic, intolerant views of the urban, middle class population and the state’s desire for a ‘Swachh Bharat’ without dealing with the social evils that make India dirty. The Court has recognised that begging should not be a crime if it is done because of poverty and helplessness and to recognise that “If we want to eradicate begging, artificial means to make beggars invisible will not suffice.” The judgment has rightly observed that the State cannot fail to do its duty in providing for a dignified life to its citizens and then add insult to injury by arresting, detaining and incarcerating poor persons as “offenders”. The judgment rightly observes, “A move to criminalise them will make them invisible without addressing the root cause of the problem.”
The Supreme Court in its landmark judgment in NALSA vs Union of India, 2014 while affirming the fundamental rights of transgender persons had noted that transgender persons face extreme violence and discrimination at every stage of their lives and are pushed to the fringes of society where begging is the only way to make ends meet. The Act categorically defines various other forms of begging including “receiving alms in a public place, whether or not under any presence such as singing, dancing, fortune-telling, performing or offering any article for sale.” Majority of hijras depend on traditional forms of seeking alms at weddings and childbirth known as the practice of toli-badhai.
A disproportionate impact on transgender persons
In this regard, the Act has a disproportionate impact on transgender persons, some of who migrate from smaller towns after being shunned by their families and rely on seeking alms to sustain. Criminalised under the anti-beggary provisions and laws governing public nuisance and obscenity, transgender persons are subjected to harassment, arbitrary arrest, illegal detention and custodial torture, violating their most fundamental rights. Police often arbitrarily arrest transgender persons under the pretext of such laws whose vagueness allows for misuse and disproportionate violence against the most marginalised communities.
As recently as 2011, the Karnataka Police Act was amended to include a section 36A, titled “Power to regulate eunuchs”, which provides unfettered power to the police commissioner to exert force on transgender population and subject them to arbitrary arrest, detention, extortion or abuse. In 2014, in a major crackdown on transgender persons, the Bangalore police arrested, without warrant, more than 200 transgender persons under various charges such as begging and public nuisance and detained them in a beggars’ colony. The stigma around non-normative gender identities and ‘vagrancy’ has existed since the Colonial era, when the British introduced discriminatory laws such as the Criminal Tribes Act, 1871 (CTA) which provided powers to the police to arrest without warrant “eunuchs” who were found dancing, playing music or taking part in any public exhibition in a public street. A derivative of the draconian CTA, the ‘Telangana Eunuchs Act, 1919’, continues to be on the statute books even today, adding to the existing stigma around transgender persons who engage in begging or sex work and enabling police harassment, extortion and blackmail.
Laws such as the Bombay Prevention of Begging Act, 1959 deprive the most marginalised citizens of their fundamental rights and in the case of the hijra community, often their only livelihood. This landmark judgment should pave the way for other high courts to follow suit and decriminalise laws that criminalise persons on account of poverty. These laws violate the right to live with dignity and are violative of the constitutional guarantee extended to transgender persons in NALSA vs Union of India and must be removed from the statute books to prevent harassment of hijra and transgender persons at the hands of police.
Ajita Banerjie is a researcher on gender and sexuality rights based in New Delhi.