Of legislative apathy and abdication of constitutional duties: Why the J&K High Court decriminalised Beggary in the State

Of legislative apathy and abdication of constitutional duties: Why the J&K High Court decriminalised Beggary in the State

Meera Emmanuel

The Jammu and Kashmir High Court on Friday effectively decriminalised beggary in the region, ruling that the Jammu & Kashmir Prevention of Beggary Act, 1960 and the Jammu & Kashmir Prevention of Beggary Rules, 1964 were liable to be struck down as unconstitutional.

The judgment passed by the Bench of Chief Justice Gita Mittal and Justice Rajesh Bindal makes pertinent observations regarding the irrational consequences that follow the criminalisation of beggary, and the failure of the State to tackle the circumstances that force citizens to resort to begging. As observed in the judgment,

Criminalization of poverty results in further deprivation and social exclusion…Poverty, and the consequential begging, is not out of choice but compelled out of the circumstances. The impugned legislation treats the targeted population, that is beggars, as having no personal autonomy or entitlement to the freedom to make a choice so far as their life and conduct is concerned…

…It is not justifiable to imprison a person who has been compelled to resort to begging as a means of subsistence especially when the State is itself responsible on account of economic or other factors to implement the constitutional guarantee of a society which is free from all forums and deprivation… Begging is also in fact evidence of the failure of the Government as well as the society at large to protect its citizens from debilitating effects of extreme poverty and to ensure to them basics of food, clothing, shelter, health, education, essential concomitants of the right to life ensured under Article 21 of the Constitution of India.”

The Bench also took critical note of the inherent bias that the anti-beggary law envisioned, and the State’s oversight in appreciating the vulnerable position of the persons who were targeted when it came to prescribing the procedure under these laws.

The presumption in the minds of the authorities and the equation of a state of poverty with criminality as well as the extreme inequality of power in activating the law and seeking judicial remedies so far as beggars is concerned, is writ large on the operationalisation of the anti- begging enactments. The legislation as well as its working is entrenched in a deep prejudice without any consideration of the rights of the people who are impacted thereby. The enactment and its working highlights the unsurmountable gap between the privileged and the extreme poor.”

The judgment was passed in a PIL filed by advocate Suhail Rashid Bhat, a permanent resident of Jammu & Kashmir and a 2017 law graduate. He had also challenged a 2016 magistrate order banning begging in Srinagar, apart from challenging the constitutionality of the anti-beggary law.

Countering the PIL, Deputy Advocate General Sheik Feroz contended that the anti-beggary law was not punitive and that it enabled beggars to undergo training to earn a livelihood in the future. The constitutionality of the law was also defended on the grounds that it sought to tackle organised exploitation of children for begging, that it was necessary to maintain law and order, and that beggars were a “nuisance” for tourists who came to visit Jammu & Kashmir.

However, the Bench did not find merit in any of these submissions, proceeding to note that the anti-beggary laws under challenge were violative of Articles 14, 19 and 21 of the Constitution. The highlights of the comprehensive judgment passed by the High Court are enumerated below.

Beggary not a matter of choice

At the outset, the Bench took note of the flawed perception that beggars are responsible for the dire circumstances they find themselves in. As observed in the judgment,

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