BY: MALYALA SAHITHI
INTRODUCTION
Beggary has been a practice in India for a long time. A king was duty-bound to take care of everyone in his state including Beggars and fact, this was a practice in Ancient India which continued throughout Monarchy.
The incident narrated in Ramayan that is of Ravana going to Seetha this guy is a Sanyasi asking for alms is an indication of the fact that begging was an accepted practice in India since time immemorial.
Various Ancient Hindu texts refer to the system but various forms like Biksham, danam etc. All of these indicated nothing but giving alm which was perceived as a part of Dharma and religion as well as the moral duty of a person bringing with its blessings and fortune.
Every religious act including Yaga or yagnas always ended with giving alms in the form of food, money, clothes to destitute and beggars.
According to prof. Upendra Bakshi Traditionally Beginning has been accepted practice and in fact, was an accepted way of life in India and giving alms to the needy was inbuilt in the social fabric. However, the position changed.
During Colonial Rule:
According to Victorians beggars embodied Laziness and moral degeneration.
Before Independence, the colonial Government had this practice of treating some Communities and certain sections of the population as criminals or it was treating them with suspicion just because did not fit into the definition of narrow civilized according to western standards.
If the colonial Government felt that a certain community was not civilized enough then it would bring loss which would criminalize them and stigmatize them the best example would be The Criminal Tribes Act – This legislation treated the tribal Community as criminals from birth.
The same perspective was applied by the colonial Government for beggars as well. It brought several beggary laws which declared begging as a criminal offence in the 1920s.
Unfortunately, even after Independence, we have carried forward some of these legislations and this is the colonial hangover that continues to affect the Indian Polity by drawing inspirations from this colonial law the first Beggary Act was passed in post-Independent India in the state of Bombay in 1958 and subsequent legislations have been extended across India.
The Jammu and Kashmir High Court passed a landmark Judgement and it has struck down all these legislations which had criminalized Beginning and declared them as unconstitutional for the following reasons.
Under these Anti -Begging Laws Begging had been provided with a very broad definition. It covered anyone who did not have a means of subsistence it was covered who was wondering in public places.
These legislations were discriminatory towards the poor people and they would also target nomadic Communities which move from one place to another without any sustainable means of subsistence.
For instance, we have few Nomadic Communities among Gujjars, bakarwals who move from one place to another without any means of subsistence even they could be classified as beggars under the beggary Act they could be arrested. They provide for the arrest they will be placed in these beggar Homes which are so-called Correctional Facilities that function as detention sector.
The beggary Act also had a provision which mandated the Authorities to cleansed the beggars once they were arrested by subjecting them to medical Examinationshaving, change of clothes. This provision is actually against Human Dignity because the intention of this provision is not to transform the beggar.
Its intention is not to prevent him from Committing crime intense the only intention of such provisions is to clear the Public areas of Beggars and ensure that they are cleansed. Unfortunately, the Government defended.
Today most of the states have adopted laws to regulate beggary thereby going against society and ethics.
Factors responsible for Beggary:
Generally, the factors responsible for beggars are more and many. However, poverty is said to be one of the major reasons.
According to a reported survey, around 85% of the destitute people were earning far below the poverty line before they got into this practice of Beggary.
An international study on beggars in India shows that 99% of men and 97% of women got into this practice Only due to poverty.
According to Subrata De’s study nearly 85% of the destitute people who entered into Begging due to poverty 25% took to begging because of poverty.
Along with disability disease and old age reasons 15% of the faced families due to poverty and amongst women which constitutes less than 1/3rd of the population.
Family disorganization(21%) disease, disability and old age (13%) are also the reasons for getting into Begging.
According to Sri S.K Bhattacharya Beggars can generally be classified into four categories
- 1) Juveniles
- 2) Able Bodied
- 3) Diseased, Old and infirm
- 4) Physically Handicapped and mentally ill
The other reasons responsible for the prevalence of Beggary are religious aspirations, depression or ideological differences. The fact that most beggars were found outside temples and places of religious significance where alms are given more readily and more generously makes it clear.
Almost all religions considered begging as sacred and giving alms to them is a sacred duty.
Another factor is a disability, emigrants status disease and lowest social status which is also
Responsible for the prevalence of this practice of Beggary and all of these must be considered as mentioned earlier while framing a law or obtaining a law or implementing a law.
Objectives
The objective of the legislation is to transform the Beggars into good Citizens and maintain public order by preventing them from committing crimes.
The Government even submitted to the High court that the legislation is helping the authorities to prevent beggars from annoying tourists.
These Justifications that are been provided by the Government is exactly similar to the criminalization and Stigmatization of certain Communities under the Colonial Government
So as long as you are not a normal person according to the definition of the Government then you can be mistreated and your dignity can be compromised by the state.
It is this argument that has been upheld by the Highcourt of Jammu and Kashmir. The J & K High Court has said that being poor or begging is not an act of individual feeling.
It is not the individual who has failed instead it is the failure of the state. It is the collective failure of the state which has resulted in poor people taking begging as means of subsistence.
The J & K High Court has said if poor people are forced to take up begging in a society then it means that the safety social safety net which was supposed to catch them was failed and it is the responsibility of the state to create social safety Net.
So, if poor people had forced to take up the beginning just because they do not have a means of subsistence then it is not the failure of the individual instead it is the failure of the State.
It is the Government that has failed the society and its people then the High Court has also said that if the Government is preventing a beggar from seeking assistance in public then it is curbing his fundamental right to freedom of Movement which is enshrined under Art -19 because a beggar who is seeking assistance in public he is doing it peacefully is not affecting public order and he is not resorting to any violence.
So, that the High court has ruled that the right to wonder and the right to seek Assistance in public Falls under Right to Movement or freedom of movement that has been enshrined under Art -19.
The High Court has ruled that the treatment that was provided to Beggars under this legislation was against human dignity which Violates Art -21 of the Indian Constitution. So, by making this historic observation the J &K High Court has struck down the beggary Act and declared it Unconstitutional.
Punitive Constitutionalism
It means the punishment offered to individual rights for the collective failure of the state and this Punishment is enabled by the law itself or by the constitution itself.
The examples for this includes the laws which deny political Participation to individuals who do not possess basic minimum educational qualification.
It also includes those laws which deny the benefits of Socioeconomic welfare Programmes to those couples who have more than two children in the name of population control.
These legislations are appearing to create a system of incentives and disincentives to promote a desired Socioeconomic outcome.
It appears that these laws are trying to promote basic Minimum education criteria they are trying to promote population Control Measures.
But, in reality in the name of achieving this larger goal or larger interests these laws are snatching away individual rights when it is not the fault of the Individual but it is the collective fault of the state.
CONCLUSION:
In a right faced Democracy the state must ensure that all the citizens have equitable access to good quality education, health care, food, nutrition and livelihood.
So when an individual is forced to take a begging then it is not his failure but is a collective failure of the state so for this reason a person who is Beginning cannot be treated as a criminal.
