On March 8, the Nagpur Police issued an order prohibiting begging near traffic junctions and public places in the city. A G20, or Group of 20 nations, summit was scheduled in the city from March 21-22.

The order was issued under Section 144 of the Code of Criminal Procedure that empowers an executive magistrate to bar the assembly of four or more people. It also prescribed a six-month jail term for violators.

This is not the first time that Indian cities have been cleared of beggars and destitute individuals for “beautification”. In 2017, the Hyderabad police banned begging weeks before the Global Entrepreneurship Summit, citing inconvenience to people and traffic. In 2009, before the Commonwealth Games were held in Delhi, the national capital was swept clear of beggars.

The criminalisation of begging affects the most marginalised and vulnerable members of society, who rely on begging to survive. It is this very fact that states ignore by either driving beggars away from public spaces or by detaining them.

Colonial legacy

The criminalisation of begging and their categorisation as “offenders” and socially undesirable is rooted in colonial jurisprudence.

It dates back to the 19th century when the colonial British government enacted the European Vagrancy Act, 1869, the first to prohibit begging in India. The Act was aimed at protecting the racial superiority of the British from the impoverished and in-despair Europeans in India who had resorted to begging due to a paucity of jobs and the high rate of unemployment.

The Act states as much, defining a “vagrant” as a “person of European extraction found asking for alms, or wandering about without any employment or visible means of subsistence”.

In independent India, the term “vagrancy” is item number 15 on the Concurrent List of the Constitution. This means that the Union government as well states can enact laws on “vagrancy”. Though there is no national law, begging is legally prohibited in 20 states and Union Territories of India.

A series of dedicated laws, including The Bengal Vagrancy Act, 1943, The Bombay Beggars Act, 1945, and The Madras Prevention of Begging Act, 1945 were enacted pre-independence to criminalise begging. Post-independence, The Bombay Prevention of Begging Act, 1959, which draws heavily from The Bombay Beggars Act, 1945, is the model anti-beggary law across the country. Some states, like Gujarat, directly adopted this Act.

Most states and Union Territories, such as Karnataka, Uttar Pradesh and Andhra Pradesh, have based their own laws on this act, with some variations. In contrast, the more recent Rajasthan Rehabilitation of Beggars or Indigents Act, 2012, focuses on rehabilitation without a ban on begging.

Like in the case of vagrancy, the British efforts to “civilise” its territories was also reflected in the now repealed Criminal Tribes Act, 1871. This was another colonial construct of systematic discrimination as it attributed hereditary criminality to nomadic tribes.

Such colonial laws viewed people without a visible means of subsistence and a stable place of residence as a problem for the “image” of the States, and a health hazard for the elite population. They are shaped on the presumption that the “poor” are a threat to public spaces, necessitating their removal from the social environment they are part of.

Inadequate and limited efforts

When states issue orders, as seen in the case of the Nagpur Police, they reiterate the perception that beggars are a nuisance, threat and embarrassment to society. There have been attempts to change this approach but few have yielded concrete results at the national level.

In 2016, the Ministry of Social Justice and Empowerment drafted the Persons in Destitution (Protection, Care and Rehabilitation) Model Bill, 2016 to “provide for the protection, care, support, training and other services to all persons in destitution”.

Although the ministry had organised a pre-legislative consultation meeting with representatives from states and union territories, there was no movement since. The bill was eventually dropped, with the Centre passing the responsibility to state governments.

In 2021, the Centre launched a five-year scheme “Support for Marginalised Individuals for Livelihood and Enterprise, or SMILE” to rehabilitate those engaged in begging. It emphasised that the vulnerabilities of those who are begging must not be penalised.

But the Centre has failed to take a concrete national stance on decriminalising begging while state governments continue with this approach. Even so, the judiciary has underlined that begging is a socio-economic and human rights concern that must be addressed by the government.

In 2018, the Delhi High Court, while ruling in the case of Harsh Mander vs Union of India struck down the Bombay Prevention of Begging Act to the extent it was applicable to Delhi. It said “artificial means to make beggars invisible will not suffice”. Provisions that criminalised poverty and granted unfettered powers to police authorities were held to be unconstitutional.

A year later, in the case of Suhail Rashid Bhat vs State of Jammu and Kashmir, the Jammu and Kashmir High Court held the Prevention of Beggary Act and the Prevention of Beggary Rules (1964) as unconstitutional.

In a public interest litigation filed in 2021, the Supreme Court refused to entertain the petitioner’s plea to restrict beggars from public places amid the outbreak of the Covid-19 pandemic. The court acknowledged begging as a socio-economic issue that can only be addressed by the state in accordance with the fundamental rights and directive principles stated in the Constitution.

It was expected that the Supreme Court would follow suit and hold the anti-begging laws across India and executive actions banning begging as unconstitutional.

In Vishal Pathak vs Union of India – a case filed in the Supreme Court in 2020 – the petitioner has sought to decriminalise begging and prohibit any ban on begging across India.

But of the six respondent states listed in the case, the Supreme Court, in its order issued in April 2021, noted that none except Bihar had filed a response to its notice. It has been nearly two years since this order, but there has been no progress in the case due to the lack of response from the respondents. The case was last heard on November 3 – only the third time that it was listed for hearing.

Criminalising begging

The existing laws against begging in India do not ensure that the Union government and states fulfil their welfare obligations. Instead, they invisibilise beggars without addressing the root cause of the issue that is poverty, a direct outcome of the state’s failure to provide for its citizens.

Banning begging on the pretext of beautification envisions public places as exclusionary to the beggars, who are considered undesirable. But it is the duty of the state to focus on measures to rehabilitate and reintegrate affected individuals in society.

Issuing orders and notifications to ban or penalise begging reflects poorly on the state and its own vanishing obligations. Such bans give police and law enforcement officials unfettered discretion and violate the constitutional provisions on equality and non-discrimination.

In the case of Nagpur, reports said the police and civic authorities directed the homeless and destitute off the streets and out of the city’s limits. Given the prevailing understanding of the Supreme Court to focus on rehabilitation and not penal action, the executive orders issued in Nagpur defy reason.

The poor have every right to a meaningful life, but the pages of the Constitution should not be where this right begins and ends.

Sneha Priya Yanappa and Avinash Reddy are Research Fellows at Vidhi Centre for Legal Policy.