In most places, people can be arrested for looking poor, as our analysis of laws in 18 states and union territories shows. Laws allow the police to round up beggars without warrant and judges to confine them in government-run institutions for long or indefinite periods – a violation of Constitutional principles. The language of the law essentially allows the law enforcement agencies and the courts to internalise and legitimise a hostile attitude towards a section of society.
Usha Ramanathan, an expert on law and poverty, in her analysis of the anti-begging law in Delhi, observed that the law has “bold signatures of unconstitutionality”. This is true of other state laws on begging as well, and calls for a rethink and a recalibration of the government’s engagement with this community.
In October 2016, the Ministry of Social Justice and Empowerment held a consultation on a new model bill for destitute people which has been referred to state governments for comment. Model laws are usually drafted by central government ministries for state governments to adopt on a voluntary basis, with or without changes.
The Persons in Destitution (Protection, Care and Rehabilitation) Model Bill of 2016 aims to set up a rehabilitative framework for homeless people, people found begging, and destitute people with disabilities. It does not criminalise begging, other than for repeated and organised begging, and does not allow for detention of dependants. It focuses instead on providing resources for the destitute – in addition to imposing a duty on the state government concerned to set up well-equipped and -staffed rehabilitation centres to provide vocational training and counselling, the model bill envisages setting up of outreach and mobilisation units to identify destitute people, create awareness and mobilise communities.
However, the bill falls short of taking a progressive and humane approach towards begging, and needs to be reframed after an informed debate.
Who is a ‘beggar’?
More than 400,000 destitute people across the country are classified as “beggars, vagrants, etc.” in government data (based on the 2011 census).
But this figure is contested, and the government admits there is no authentic data available. Activists say government statistics under-report the number of beggars. For instance, the 2011 census puts the number of beggars in Delhi at 2,187. However, previous estimations by government departments and civil society organisations put the figure between 60,000 and 100,000 between 2004 and 2010.
Further, information about the number of people booked and detained under anti-begging laws is not readily available. In five states, even the text of the laws that criminalise begging is not available in any publicly accessible resource.
Most of the state laws (except those of Assam and Tamil Nadu) consider the mere appearance of not having the means to sustain oneself or wandering about in a public place as begging. In other words, if you look poor, you can be arrested. There have been reports of police raids rounding up homeless working people or nomadic tribes as “beggars”.
The law in West Bengal uses language similar to early colonial laws, such as the term “vagrants”. Some laws date back to pre-Independence times (Tamil Nadu), some are as recent as 2004 (Sikkim), but the classification of begging as a criminal activity remains unchanged.
In Karnataka and Assam, an exception has been carved out for religious mendicants who seek alms to fulfill religious obligations or beg in temples and mosques. These laws effectively sanction begging in the name of religion. Yet, seeking alms by singing, dancing and performing tricks falls within the definition of begging and is illegal.
In Tamil Nadu, however, the law exempts “street artists and performers in the oral tradition, bards, jugglers and street magicians” from the definition of a beggar.
Under most laws (with the exception of Karnataka, Jammu and Kashmir, Bihar and West Bengal), the court can also order the detention of people who are dependent on the person arrested for begging. So if a man is arrested for begging, his wife and children can be detained.
In Himachal Pradesh, the law goes a step further by allowing the court to send people who knowingly live off the earnings of a beggar to jail. Under this law, anyone proved “to be living with or to be habitually in company of, a beggar” can be punished. The police can arrest and detain entire families under this provision.
The model bill retains a definition broadly similar to that of existing state laws, one in which “having no visible means of subsistence and wandering, (sic) about or remaining in any public place…” can constitute begging. Essentially, it continues to presume that anyone appearing to be poor could be a beggar, although it does shift the focus from punishment to rehabilitation.
Clearing the streets
Local police or officers of the welfare department conduct periodic raids to clear the streets of beggars. Those rounded up routinely include members of the transgender community, for whom begging is a significant source of livelihood.
Many state laws treat begging as a cognisable and non-bailable offense, for which a summary inquiry can be held to ascertain guilt and award punishment.
Under the Indian Code of Criminal Procedure, crimes that require the immediate intervention of the police are classified as cognisable crimes; in fact, it is possible for the police to start an investigation and make an arrest even without a complaint from anyone and without prior permission from a court. Most state laws allow the police to arrest anyone they think is a beggar without a warrant.
The crime of begging is also non-bailable – that is, the accused has to make an application in court to get out of jail while the inquiry goes on. The level of awareness regarding free legal representation is very low in India and activists have often found the quality of representation to be poor. A person accused of begging would typically have no means to hire legal representation, and would find getting bail very hard.
In its drive to “beautify” the city in the run up to the Commonwealth Games, the Delhi government decided to rid the city of beggars. It set up “mobile courts” where a magistrate would sit in a minibus and summarily try the beggars rounded up.
The question arises: if the “crime” of begging is so serious that it is classified as cognisable and non-bailable, how is a “summary” inquiry sufficient to establish guilt?
Though the model bill does not criminalise begging per se, it allows for people found begging repeatedly to be detained indefinitely in rehabilitation centres – with police assistance, if necessary – and claims this detention is in their own interest. Further, the bill envisages the issuance of identity cards which can potentially be used for surveillance purposes. These provisions could also allow and assist the police to conduct raids and such clean-up drives, making the situation not very different from now.
Where do arrested beggars go?
Various state laws prescribe sending those declared beggars and in some cases, their dependants, to government-run institutions called by different names – certified institution, workhouse, special home, beggar’s home or relief centre. In some states, a distinction is made between a workhouse (where those capable of physical labour are detained) and special homes (for those incapable of physical labour).
It is easy to see how these laws reflect the commonly perceived nexus between begging and criminality.
States that have adopted versions of the Bombay Prevention of Begging Act, 1959 (for example, Delhi) prescribe detention in a certified institution as normal punishment.
In several states such as Andhra Pradesh and Tamil Nadu, the court has the option to either send the person to jail or detain them in an institution. In West Bengal, the person can be released only once the manager of the home has found a job for them or if a relative provides personal guarantee, thereby making it possible to detain someone indefinitely.
Repeat offence invites harsher punishments. If a person is found begging a third time, they can be sent to a government institution for up to 10 years, of which two years can be in jail. In nine of the states analysed, judges can send an accused person to an institution for up to 10 years. While awarding the maximum punishment of 10 years, the judge has the power to send the person to eight years in an institution and two years in jail.
A similar model is followed in states such as Assam, Haryana and Uttar Pradesh although with shorter maximum duration of punishment (between three and five years). In a few states such as Karnataka and Jammu and Kashmir, the judge can only send a repeat offender to an institution. In one state, Himachal Pradesh, the repeat offender (who is not a woman or child) will only be sent to jail. Women and children can be sent to a beggar’s home instead.
Here again, the maximum prescribed punishment ranges from three to 10 years. The question arises: why is begging in one state a more serious crime than in another?
In some states such as Haryana and Punjab, the law prescribes compulsory manual labour at a certified institution (after a medical check-up). Compulsory labour is again indicative of the nature of detention being punitive rather than rehabilitative.
A number of state laws allow for the courts to send a person to jail for up to three months for refusing to give their fingerprints when in a certified institution. In some states such as Gujarat, the remainder of the term in a certified institution can be converted into jail time if the person refuses to follow rules.
Maximum punishment for begging
What about children?
State laws on begging differ fundamentally in their approach towards the treatment of children found seeking alms. Under the Juvenile Justice (Care and Protection of Children) Act, 2015, children found begging are treated as victims in need of care and protection to be dealt with by child welfare committees. Some of the state laws, on the other hand, treat them as criminals who can be sent to an institution.
There are also inconsistencies in who qualifies to be a child – the maximum age ranges from 14 to 18 among various state laws. A 2010 Delhi district court judgment recognised the inconsistencies in the legal regime involving child beggars in Delhi – the law on begging treats children above five years of age found begging liable for punishment as adults, while the juvenile justice law requires these children to be sent to a child welfare committee.
Persons with disability
A substantial percentage of people who are found begging are persons with disability, infirm or affected by illnesses such as leprosy.
A provision found in most of these laws allows for indefinite detention in a certified institution of a person who is “blind, crippled or incurably helpless”. The law does not define ”incurable helplessness” and therefore such indefinite detention can be applied arbitrarily.
The very idea of legally sanctioned indefinite detention is antithetical to the spirit of the Constitution. The language used in a similar provision in Karnataka is interesting – people who are “infirm, disabled, decrepit or suffering from any loathsome or incurable disease” have to be immediately sent to their relatives when arrested. The state comes into the picture only if there is no relative to whom the responsibility can be entrusted.
Similarly, under these laws, people with mental illness and leprosy are usually clubbed together and are required to be sent to a mental hospital or leper asylum. It is unclear how people with the highly stigmatised disease of leprosy are actually treated given that the law under which leper asylums existed (the Lepers Act, 1898) has been repealed.
The shift from a punitive to rehabilitative approach
By treating beggars simultaneously as criminals and as those in need of help, different state governments have failed in their duty to reintegrate them into society, with the result that they usually end up begging again. Doing so incriminates them again, and the punishment for repeat offences is higher – extending to detention for an indefinite period of time.
India’s policy-makers must develop a consistent and humane approach towards begging, which focuses not on penalising but on rehabilitating them.
The model bill marks a shift towards a more rehabilitative approach, but continues to perceive ostensible poverty as indicative of begging, and allows indefinite detention and the involvement of police in certain circumstances.
As state governments deliberate on whether and to what extent to adopt the model bill, they must enable an informed public debate.
This article first appeared on IndiaSpend, a data-driven and public-interest journalism non-profit.