Beggary: From Crime to No Crime

To constitute a crime, apart from a guilty act, a guilty mind is also a must. Can wanting to
survive (which in this case is basic animalistic survival) constitute a guilty mind? Further to
look at the act of begging itself, does crying out for help constitute guilty act? How is
begging any different from Ambani floating shares and debt instruments? While Ambani sells
to the investors the idea of a grand object, a begger sells his plight. Just as Ambani doesn’t
force anyone to buy, the beggar also doesn’t force anyone to provide alms. While, in lieu of
investment, the investors get a handsome return, the spreading of joy and happiness is the
return for philanthropy. If the method of seeking alms is irritating, so is marketing by
advertisements and calls. Do makeup, fancy clothes and catchy phrases determine what a
crime is?

The activist in the Judiciary came to fore yet once again, when the Delhi High Court
decriminalized beggary by declaring certain provisions of the Bombay Prevention of Begging
Act, 1959 as “unconstitutional”. The Act was challenged on two important grounds, namely,
arbitrariness and criminality. The Court found the act was arbitrary on two grounds: Firstly,
the act failed to distinguish between “involuntary begging” and “forced beggary”. Secondly,
due to the wider scope of the definition of begging, “homelessness” and “begging” are being
used synonymously which is manifestly arbitrary. While forced beggary is clearly a crime,
the Court rightly pointed out that involuntary begging is indulged for survival and not out of
choice and therefore cannot be considered a crime. Accordingly, those provisions of the act
which treat “involuntary begging” as an offence and provide for punishment have been struck
down by the Court as unconstitutional.

The Hon’ble Court observed that as a consequence of treating begging as a crime, the most
basic fundamental rights of food, shelter and health which are rights guaranteed by Article 21
are rendered inaccessible to the most vulnerable sections of the society. Further, the Hon’ble
Court rapped the state by stating that criminalizing begging is a wrong approach to deal with
the underlying causes of the problem. When children are scared in the night, they close their
eyes shut and pull the sheets over their faces. By doing so they feel whatever they are scared
of- darkness, bogeyman, shaitan, sexual predator etc seize to exist. The court probably took a
cue from this, when it stated that by criminalizing, beggary is being rendered invisible
artificially by confining them to certified institutions and prisons. This by any count is not a
mechanism of eradication of beggary but only a means of rendering the so considered
“undesirables” invisible, by physically removing them from the public spaces so considered
exclusive for the “reputables”. This promotes elitism instead of pluralism and exclusiveness
instead of inclusiveness.

Further by criminalizing, these sections are denied the right to communicate and seek help.
This goes against the Freedom of Speech and Expression provided under Article 19(1)(a).
Though the Hon’ble Court touched on this aspect, it stopped short of drawing a conclusion in
this regard. While suffering a painful existence is in itself disheartening, inability to express
and seeking help, only piles up the misery for the already suffering souls. It would have been
really monumental had the court declared Right to seek help/alms inclusive of the freedom of
speech and expression guaranteed by Article 19(1)(a). Nevertheless, Though a bit late, the
Hon’ble Court has set the ball rolling in the right direction now is upto the Centre and the
States to pick up from where the Court left.