In the High Court of Jammu and Kashmir at Srinagar Public Interest Litigation 24/2018 Petitioner Suhail Rashid Bhat Respondents State of Jammu and Kashmir and Ors. Date of Judgement 25th of October, 2019 Bench Chief Justice Rajesh Bindal
The Government of Jammu and Kashmir formulated The Jammu and Kashmir Prevention of Beggary Act, 1960 and Rules 1964 in order to prevent beggary and make beggars better citizens, and with object of restricting nuisance created by beggars by exploiting the philanthropic instinct.
Mr. Suhail Rashid Bhat, an advocate of the court in the state of Jammu and Kashmir, herein files a petition under article 226 of the Indian constitution, challenging the constitutional validity of the Jammu and Kashmir prevention of Beggary Act of 1960, and the Jammu and Kashmir prevention of Beggary Rules, of 1964.
Herein, the constitutionality of the act is challenged, contending the fact that the article is in violation of several fundamental rights enshrined in the constitution, namely articles 14,19,20,21, and 22, all comprising of fundamental rights bestowed to the citizens.
Based on the same arguments and contentions, an order of the District Magistrate of Srinagar, that banned begging in Srinagar, and directed the police force to arrest the pauper, was challenged as well.
- Is the J&K Prevention of Begging Act, 1960, unconstitutional and violative of Articles 14, 15, 20 and 21 of the Constitution?
- Is an appropriate writ declaring the rules (Jammu & Kashmir Prevention of Beggary Rules, 1964) made under section 9 of the act declare the J&K Prevention of Begging Act, 1970, unconstitutional.
- Whether a writ of certiorari quashing or setting aside the order dated 23.05.2018 passed by the District Magistrate, Srinagar banning begging in Srinagar be issued?
- Mr. Bhat contends on the applicability of the Constitution on the State of Jammu and Kashmir. Herein he states that the constitution was made applicable to the state by an order of 1954. He contends extension of all fundamental rights to the state, and relies on section 10 of the state’s constitution that guarantees all rights of Indian constitution, thus he contends reading the 2 jointly illuminates the double protection provided to citizens by it.
- Secondly he states that the preamble of the act classifies beggars as bad citizens and the act aims to arrest them, something which shouldn’t be done.
- He analyzes the definition of beggar provided in the act and contends that the definition is vast and encompassed not only acts but a way of life, he classifies the legislation as classist which excludes the public places to poor
- He also claims that the above mentioned points discriminate against a class thus violate article 14 for hereinafter mentioned reasons:
- It fails to incorporate within its meaning donations voluntarily given to the people asking for alms. The distinction is not based on intelligible differentia nor has rational relation to the object of the legislation. The petitioner hence wants the act to undergo the arbitrariness test entailed in the case of Royappa vs. State of Tamil Nadu & Anr and The State of West Bengal v. Anwar Ali Sarkar.
- Next objection is on the basis of religion, mainly the fact that some religions support and encourage receiving and giving alms. The act discriminates between people with no such religious ideology with those with them.
- The petitioner has challenged the section 2(a)(iii) on the ground that it denies equal treatment between the disabled and
able bodied thereby preventing the society from seeing the real heart;
a matter of significant public interest.
- The act has excluded the access of public places to beggars and has labeled them as offenders.
- Sections 2(a)(i) and 2(a)(ii) also fail to treat individuals and
organizations equally in relation to soliciting alms. Private organizations who solicit alms are allowed to do so by law, but private
individuals are criminalized from doing so which is indicative of the suggestion that the legislation is not concerned about the harms caused by begging but is seeking to conceal a social problem from legitimate criticism of the government.
- Vagueness Of Legislation
- The petitioner contends that the expression
“under any pretence” in Section 2(a)(i) is extremely vague and does not permit the authorities to determine whether a person accused herein is providing a service or engaging in the act of begging.
- Based on the principles in Supreme Court of the United States in the judgment reported at 408 US 104 (1972) Grayned v. City of Rockford, the petitioner submits that the definition of “begging” entailed in the act suffers from vagueness, and lacks sufficient data to identify or standards to determine the guilty.
- The act also criminalizes the act of forced beggary but does nothing for the compulsion being exercised in order to cause one to engage in such act. Thus one who is forced is criminalized but one who forces is not.
- The final contention is the lack of ‘mens rea’ or guilty intention in the minds of the beggars. It is stated that no one begs of one’s own volition, but is forced to do so by circumstances. Thus criminalizing it would go against the principle of “actus non facit reum nisi mens sit rea.”
- The contentions herein are that the right to ask for alms without harassing, or forcing anyone falls under article 19’s right to freedom, and incarceration is not a reasonable restriction, rather an infringement of one’s right.
- Article 21
- Based on a Supreme Court ruling of (1980) 2 SCC 360 Jolly George Verghese v. Bank of Cochin, the respondent claims that poverty is not intentional, but a state. Thus, it inherently cannot be a crime, whereas the act of begging is a normal response to anyone exposed to such circumstances, thus restricting it inhibits one’s right to life.
- By placing reliance on multiple cases of the apex court such as (1990) Shantistar Builders v.Narayan Khimalal Totame & Ors;
- Uni Krishnan JP v. State of Andhra Pradesh;
- State of Punjab v . Mohinder Singh, and
- Bandhua Mukhti Morcha v. Union of India and others,
where it has interpreted the meaning of article 21, the petitioner claims that the state is duty bound to ensure to all its citizen, decent lifestyle and necessary means of life, failing in which, any legislation barring one to engage in acts enabling him to survive contradicts article 21.
- The petitioner here claims that the act forces one to choose between his right to life/surviving against being a criminal, and putting one in such dichotomous state is against constitution.
- That beggars are being provided training to earn livelihoods+ states that reasonable restriictions to promote law and order are being applied which aren’t against constitution.
- They contend that J&K receives lot of tourists and beggars cause annoyance to them
- Begging is being opposed here as some criminal groups utilize children to do so; they kidnap them and force them to engage in the act thus securing money. This has become a method of systemized crime.
- So far as the establishment of Beggars Homes is concerned, directions were passed in PIL 23 of 2013 Parimoksh Seth v. State of J&K and others, regarding creation of Beggar Homes. Consequently, the Social Welfare Department established Beggar Homes.
- It stands stated by the respondents that rules stand notified in
exercise of the power conferred under Section 9 of the Act by way of SRO 12 (1965 ) to achieve the objects of the law.
- The defendants rely on Rule 3 of the SRO which allows one to engage in the act of begging provided that the person has applied and has got permission from district magistrate to do so. Thus allowing the truly needy to do so, if required.
- The respondents claim that detention, training, and employment clause of the act is present in order to efficiently remove the beggars from this illegal profession and rehabilitate them.
- The statutory provisions are defended as being regulatory in
nature and that the law has been enacted with a laudable object. The respondents contend that in case the Act and the Rules are declared unconstitutional, this area would remain unregulated. Placing reliance on the well settled principle of presumption of validity attached to legislation, the law under challenge is legally and constitutionally valid.
In the view of the Hon’ble High Court Poverty is human rights issue and all human including poor are entitled to meaningful life which includes food, clothes, shelter, health, freedom, education, just and human conditions of work, dignity and liberty. Deprivation of the essentialities to poor are primary reasons to compel him/ her to resort to begging for their sustenance.
The Court observed that the Act does not contain ‘no faith’ clause. Thus the Act protects officials against civil and criminal actions done pursuant to the provisions of the law. It suggests legislative arrogance. The Act defines the offence in vague, and overbroad manner. The definition of offence is not narrowly tailored in order to achieve object of the law. It confers completely untrammelled and unchecked powers on executive to detain people. It has chilling effect on right of free speech and expression of beggars.
Section 3 of the act makes begging offence. Section 4 prescribes mandatory detention on perception of executive officer. Section 6 prescribes mandatory sentence upon second and further conviction. Section 5 lays down summary enquiry as procedure. These provisions of the said Act vests drastic, unreasonable and arbitrary powers with executive officer.
The act of begging marks failure to state to ensure basic facilities of health, clothing, food, shelter, just and humane conditions of survival, and opportunity to work it’s citizens which are essential concomitants of Article 21.
The act of Begging involve peaceful communication with strangers whereby beggar conveys his request for assistance. Such communicative activity is essentially part of right of free speech and expression guaranteed under Article 19(1)(a) of Indian Constitution. Definition of the act criminalises people for what they are rather than what work they do. The prohibition of communication for purpose of begging in public spaces violates their right guaranteed under Article 19(1)(d)of the Constitution. The Act and the Rules upsets the balance between the rights and reasonable restrictions permitted by Article 19(2) of the Constitution. The provisions of the act are unread and arbitrary. The act invade the right of free speech and expression of beggars guaranteed under Article 19(1)(a) & 19(1)(d) of the Constitution.
The Hon’ble High Court found curtailment of rights of beggars as disproportionate to the object of legislation and situation to be addressed. The restrictions are more intrusive than necessary. Thus the restrictions are inappropriate and are not permissible as per Article 19(2) of the Constitution.
The classification under Section 2(a) is irrational, and arbitrary, and not based on intelligible differentia. It fails to ensure equality before the law to beggars and thus violates Article 14 of the Constitution. The provisions of the act takes away judicial discretion completely and thus cannot be considered just, and thus violates rights guaranteed to individual under Article 14. The Act and the Rules framed under it results in disproportionate infringement of the right to liberty, dignity, and meaningful life guaranteed under Article 21.
As discussed above, the court found the Act, Rules framed under it unconstitutional and violating Article 14, 19, and 21 of the Constitution of India. And thus the order dated 23rd May, 2018 passed by District Magistrate is quashed.
The Court found The Jammu and Kashmir Prevention of Beggars Act , 1960 & J & K Prevention of Beggary Rules, 1964 as unconstitutional. And the court observed that criminalisation of begging is outcome of extremely prejudiced social constructs and it is intended to remove poor people from public spaces and deprive them of equality, right of free speech and expression, liberty, freedom, and inclusiveness and pluralism guaranteed by the Constitution.
“The views of the authors are personal“