The Delhi High Court’s decision on August 8 to strike down the central provisions of the Bombay Prevention of Begging Act, 1959, as arbitrary and violative of the right to life and liberty is a massive blow to the criminalisation of vagrancy in India. Indeed, the court’s observation that “criminalising begging violates the most fundamental rights of some of the most vulnerable people in our society” calls for a radical overhaul of the laws governing the treatment of vagrants and beggars. While this judgement is aimed at the 1959 Act, one of the more prominent legislations that criminalises begging and is in force in multiple states, its underlying rationale hits at the core of similar legislations that have been enacted or adopted by at least 20 states and two Union territories. While nominally aimed at combatting begging, the sweeping scope of most of these statutes implies that these are better understood as vagrancy laws.

Infused with a toxic cocktail of colonial legacy and state paternalism, these vagrancy legislations embody a punitive approach that criminalises deprivation. In the words of legal researcher Usha Ramanathan, vagrancy laws in India create “a presumption of criminality among the ostensibly poor”. Unlike traditional criminal law that attaches liability to acts combined with requisite mental element, vagrancy laws make destitution and impoverishment in itself a crime. For example, the Bengal Vagrancy Act, 1943, defines “vagrants” as not only those found seeking alms but also those found “wandering about or remaining in any public place in such condition or manner as makes it likely that such person exists by asking for alms”. That the vagrancy laws are more concerned with the public poor than with the act of begging is amply demonstrated by the Andhra Pradesh Prevention of Begging Act, 1977, which defines begging to include “having no ostensible means of subsistence and wandering about or remaining in any public place”.

Not surprisingly, a large chunk of the urban poor, including masons, newspaper vendors, street vendors and migrant labourers, have been caught in the web of these laws. A study by Koshish, a project of the Tata Institute of Social Sciences, found that most of those arrested in Mumbai under the Bombay Prevention of Begging Act were homeless persons detained by the police during cleaning drives. Even the Delhi High Court acknowledged that the state agencies “are using homelessness and begging synonymously and are in fact detaining the homeless as if they were begging”. Such brazen incarceration of the urban poor is, however, not an aberration. Instead, it is an inherent part of the design and administration of vagrancy laws.

Citizens, not delinquents

The primary use of vagrancy laws in this country is as a tool of social control and, what the American scholar Caleb Foote described in his seminal study on vagrancy laws in Philadelphia, “as the garbage pail of criminal law”. The fact that persons can be detained long-term with a mere summary inquiry have made vagrancy laws particularly attractive for state agencies for incarcerating those considered socially undesirable. Anecdotal accounts from administrators in vagrancy homes also suggest that the police routinely take recourse to vagrancy laws to bypass the safeguards of ordinary criminal procedure laws. As such, vagrancy laws in India normalise the arbitrary and continued detention of the poor in brazen violation of their constitutional rights and thereby seek to render them invisible from the public sphere. These statutes are among the foremost examples of denial of equal citizenship and marginalisation of the poor.

As the Delhi High Court acknowledged, vagrancy is a problem of social exclusion. It is, therefore, essential to conceive vagrancy as a social and economic issue rather than a criminal activity. In other words, vagrants must not be seen as delinquents who must be subjected to punitive laws of the state. They must be treated as citizens and rights-bearers who require the protection and care of the state. Indeed, the Constitution of India promises equality, justice and the right to live with dignity to all individuals. More specifically, Article 41 of the Constitution says the state shall make effective provision for securing the right “to public assistance in case of unemployment, old age, sickness and disablement and in other cases of undeserved want within the limits of its economic development and capacity”.

But India’s numerous vagrancy laws fall foul of this constitutional mandate. With their focus on punitive measures, they punish the poor for the “embarrassment of poverty” and the state’s failure to discharge its constitutional obligations. In fact, these laws have engendered an administrative culture where policing the poor has taken priority over providing for the poor.

Incarceration of the urban poor is an inherent part of the design and administration of India's vagrancy laws. (Prakash Singh / AFP)

Review of vagrancy laws

The Union Ministry of Social Justice and Empowerment did release the Persons in Destitution (Protection, Care and Rehabilitation) Bill, 2016, on decriminalisation of begging, as a model for states to emulate. While this bill does not completely dispense with the detention of beggars, it constitutes a significant departure with its emphasis on protection and rehabilitation instead of punitive measures. Accordingly, some states have commenced the process of reviewing their vagrancy laws. However, most of these attempts have not achieved any significant progress as yet.

In this context, the decision of the Delhi High Court stands as an immensely significant corrective against the wider culture of impunity, disenfranchisement and criminalisation of the poor. As the outgoing Acting Chief Justice of the Delhi High Court, Gita Mittal, cautioned: “[T]he State simply cannot fail to do its duty to provide a decent life to its citizens and add insult to injury by arresting, detaining and, if necessary, imprisoning such persons, who beg, in search for essentials of bare survival.”

By laying down so categorically that the state cannot criminalise begging per se, the High Court has not only acted as a vigilant sentinel of constitutional rights but also created an unprecedented opportunity for a review of vagrancy laws throughout the country. It is time for the state governments to pick up the gauntlet thrown by the High Court and begin the process of decriminalising vagrancy and creating a consent-based framework for the protection, care, support and rehabilitation of all persons in destitution.

Saurabh Bhattacharjee teaches Law and Impoverishment, among other courses, at the WB National University of Juridical Sciences, Kolkata, and was a member of a committee constituted by the government of West Bengal to review the Bengal Vagrancy Act, 1943.