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The Delhi High Court today declared the Bombay Prevention of Begging Act, 1959 (Act), as extended to Delhi, unconstitutional insofar as it criminalized beggary/begging.
The provisions of the Act, which do not directly or indirectly criminalize begging, such as Section 11 which deals with penalty for employing or causing persons to solicit or receive alms, causing persons or children to solicit or receive alms, or using such persons as exhibits, were maintained.
The court, however, granted liberty to the States to bring in alternative legislation to curb any racket of forced begging after undertaking an empirical examination on the sociological and economic aspects of the matter.
The judgement was pronounced by a Bench comprising the outgoing Acting Chief of the High Court, Gita Mittal and Justice C Hari Shankar in writ petitions filed by individuals, Karnika Sawhney and Harsh Mander challenging the Constitutional validity of the Act on the grounds of violation of Articles 14, 19, 20, 21 and 22.
The Court declared the Act in violation of Article 14 as it did not make any distinction between types of begging i.e. voluntary or involuntary.
“The comprehensiveness of the definition of begging in Section 2(1) (i), appears to indicate a legislative intent to cover a broad area, including in its sweep, all types of begging. It has also been pointed out that the respondents are using homelessness and begging synonymously and are in fact detaining the homeless as if they were begging and implementing the penal provision of the act qua them. This in our view is manifestly arbitrary.”
The court also found the Act contrary to the mandate of Article 21.
“A person who is compelled to beg cannot be faulted for such actions in these circumstances. Any legislation, penalizing the people therefore, is in the teeth of Article 21 of the Constitution of India.”
Stating that criminalizing begging is a wrong approach to deal with the underlying causes of the problem, the judgement authored by Acting Chief Justice Mittal states,
“People beg on the streets not because they wish to, but because they need to. Begging is their last resort to subsistence, they have no other means to survive… If we want to eradicate begging, artificial means to make beggars invisible will not suffice… 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 Court, therefore declared, Sections 4, 5, 6, 7, 8, 9, 10, 12,13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28 and 29 of the Bombay Prevention of Begging Act, 1959, as extended to Delhi, unconstitutional.
“In the result, we declare Sections 4, 5, 6, 7, 8, 9, 10, 12,13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28 and 29 of the Bombay Prevention of Begging Act, 1959, as extended to Delhi, as unconstitutional and strike down the said provisions…The inevitable sequitur to our decision would be that all prosecutions, under the Act against persons alleged to have committed the offence of begging, would be liable to be struck down.”
These provisions, inter alia, dealt with,
Karnika Sawhney was represented by Senior Advocates BB Sawhney and advocates Indira Sawhney, Vaibhav Mishra and Yogendar Singh.
Harsh Mander was represented by Senior Advocate Colin Gonsalves and advocates Chaudhary Zia Ali Kabir, Pragya P Singh and Aditi Saxena.
Read the judgment below.