The Bombay Prevention of Begging Act, 1959: A Critical Analysis of its Constitutionality and Implementation

The Bombay Prevention of Begging Act, 1959: A Critical Analysis of its Constitutionality and Implementation

Introduction

The Bombay Prevention of Begging Act, 1959 (hereinafter 'the Act'), enacted to consolidate laws relating to beggars and provide for the prevention of begging, has been a subject of intense judicial scrutiny and socio-legal debate in India. Extended to the National Capital Territory of Delhi in 1960, the Act represented a legislative attempt to address the visible aspects of poverty through a framework of detention, training, and rehabilitation.[1] However, its provisions, which criminalized the act of begging and granted wide powers of arrest and detention to the state, have been persistently challenged for their incompatibility with the fundamental rights guaranteed by the Constitution of India. This article provides a comprehensive analysis of the Act, tracing its judicial interpretation from concerns over its ineffective implementation to its eventual partial decriminalization by the Delhi High Court, thereby examining the conflict between punitive measures against poverty and the constitutional ethos of dignity, liberty, and equality.

The Legislative Framework and its Intended Purpose

The stated objective of the Bombay Prevention of Begging Act, 1959, was to make "uniform and better provision for the prevention of begging" and for matters connected therewith, including the detention, training, and employment of beggars.[2] The Act established a comprehensive, albeit coercive, mechanism to deal with individuals found begging.

Key Provisions

The operative sections of the Act created a framework that treated begging as a criminal offence. The definition of "begging" under Section 2(1)(i) was exceptionally broad, encompassing not only soliciting or receiving alms but also doing so under any pretence, such as singing, dancing, or offering articles for sale.[7] This wide definition was central to the Act's expansive reach.

The procedural aspects were equally stringent. Section 4(1) empowered a police officer to arrest any person found begging without a warrant.[7] Following the arrest, Section 5 provided for a summary inquiry by a court. If satisfied that the person was indeed found begging, the court could order their detention in a "Certified Institution" for a period not less than one year but not more than three years.[6] Section 6 prescribed enhanced punishment for subsequent convictions, reflecting the Act's punitive character.[7]

Conversely, the Act also contained provisions aimed at rehabilitation and targeting exploitation. Chapter III provided for the establishment of Receiving Centres and Certified Institutions for the detention, training, and employment of beggars, including provisions for general education and medical care.[2] Furthermore, Section 11 imposed a stringent penalty, including a mandatory minimum imprisonment of one year, on any person who employs or causes another to beg, or uses them as an exhibit for begging.[2] This provision was intended to address organized begging rackets and the exploitation of vulnerable individuals, a goal consistent with the prohibition of 'begar' and forced labour under Article 23 of the Constitution.[13]

Judicial Scrutiny: From Implementation Failures to Constitutional Challenge

For decades, the primary judicial engagement with the Act revolved around its implementation rather than its constitutionality. However, growing cognisance of its harsh impact on the most impoverished citizens eventually led to a direct constitutional challenge.

Early Concerns: Dismal Implementation

In a series of orders in Karnika Sawhney v. Union of India, the Supreme Court of India expressed its "anguish" over the "dismal implementation" of the Act in Delhi.[2], [3] The Court noted that despite the Act being in force for over four decades, beggar homes were nearly vacant compared to their sanctioned strength, even as the number of beggars on the streets increased.[12] The Court lamented the lack of concrete steps taken by the Social Welfare and Police Departments, observing that funds were primarily spent on salaries and maintenance, with little evidence of vocational training, proper food, or medical facilities.[12] These observations highlighted a fundamental failure of the state to fulfil the rehabilitative promise of the Act, leaving only its punitive aspects in force.

The Definitional Quagmire and Procedural Lapses

The judiciary also grappled with the vagueness of the Act's core definitions and the fairness of its procedures. In Ram Lakhan v. State, the Delhi High Court pointed out the circularity in the Act's logic: "a 'beggar' is a person found 'begging'".[5] The Court emphasized that individuals accused under the Act are human beings who must be treated as such, and procedural safeguards must be scrupulously followed. Similarly, the Bombay High Court in KOSHISH AND ORS. v. THE STATE OF MAHARASHTRA AND ORS. noted that factors such as helplessness, poverty, and duress must be considered during the summary inquiry under Section 5(6), criticizing the "total non-application of mind" in many cases.[6]

The right to legal representation for the accused, often destitute and uneducated, became another critical point of contention. In Mousham v. State, the Delhi High Court set aside detention orders because the petitioners were convicted based on their guilty pleas on the first day of production without being provided legal aid, which the court deemed a "fatal infirmity".[10]

The Constitutional Culmination: Harsh Mander v. Union of India

The constitutionality of the Act was decisively adjudicated by the Delhi High Court in Harsh Mander & Anr. Petitioners v. Union Of India & Ors. (2018).[1] The petitioners challenged most sections of the Act as being violative of Articles 14, 19, 21, and 22 of the Constitution. The Court embarked on a profound analysis of the relationship between poverty, fundamental rights, and criminal law.

The Court reasoned that in a society that promises every person the right to live with dignity, criminalizing begging denies individuals their basic fundamental rights. It held that poverty is not a crime and that the state cannot incarcerate people for being poor. The act of begging was recognized as a manifestation of the failure of the state to provide for its citizens, and punishing the victim of such circumstances was deemed unjust.

The High Court found that the provisions criminalizing begging were violative of both Article 14 (Right to Equality) and Article 21 (Right to Life and Personal Liberty). It held that the Act created an unreasonable classification by targeting the poor and homeless, who may have no other means of subsistence. Furthermore, the act of begging was interpreted as a form of expression—a plea for help—and its blanket criminalization was held to be an unreasonable restriction on the freedom of speech and expression under Article 19(1)(a).[1]

Consequently, the Court declared Sections 4, 5, 6, 7, 8, 9, 10, and 12, which collectively formed the nucleus of the criminalization and detention regime for the act of begging, as unconstitutional and struck them down. Significantly, the Court left Section 11, which penalizes the act of employing or causing persons to beg, intact, thereby preserving the legal tool to combat organized and forced begging.[7] The judgment directed the state to consider alternative legislation based on empirical study, focusing on the "sociological and economic aspects of the matter" to address forced beggary.[1]

Conclusion and Future Directions

The judicial journey of the Bombay Prevention of Begging Act, 1959, in Delhi illustrates a significant evolution in Indian constitutional jurisprudence. Initially viewed as a problem of failed implementation, the Act was ultimately recognized as being fundamentally at odds with the constitutional guarantees of life, liberty, and dignity. The Supreme Court's early admonitions in Karnika Sawhney exposed the hollowness of the Act's rehabilitative claims, while the Delhi High Court's landmark decision in Harsh Mander dismantled its punitive core.

The striking down of the provisions that criminalize the act of begging itself marks a paradigm shift from viewing poverty as a law and order issue to recognizing it as a socio-economic condition requiring welfare-based solutions. This approach aligns with long-standing expert recommendations, such as those of the Justice Gokhale Commission, which as early as 1990 had called for the decriminalization of begging and the establishment of welfare homes.[6] The path forward, as indicated by the judiciary, lies not in punishing the impoverished for their existence but in creating robust social security nets and targeting the criminal networks that exploit them, a purpose for which provisions like Section 11 of the Act remain relevant and necessary.

References

  1. Harsh Mander & Anr. Petitioners v. Union Of India & Ors. Ss (2018 SCC ONLINE DEL 10427, Delhi High Court, 2018).
  2. Karnika Sawhney (3) v. Union Of India And Others (Supreme Court Of India, 2005).
  3. Karnika Sawhney (2) v. Union Of India And Others (Supreme Court Of India, 2005).
  4. Hari Ram v. Commissioner Of Police Delhi And Others (Delhi High Court, 1979).
  5. Ram Lakhan v. State (Delhi High Court, 2006).
  6. KOSHISH AND ORS. v. THE STATE OF MAHARASHTRA AND ORS. (Bombay High Court, 2018).
  7. Harsh Mander & Anr. Petitioners v. Union Of India & Ors. Ss (Delhi High Court, 2018).
  8. Suhail Rashid Bhat Petitioner(S) v. State Of Jammu & Kashmir And Others (S). (Jammu and Kashmir High Court, 2019).
  9. Lt. Governor, Nct And Others v. Ved Prakash Alias Vedu (2006 SCC CRI 2 449, Supreme Court Of India, 2006).
  10. Mousham Petitioner v. State (2012 SCC ONLINE DEL 5481, Delhi High Court, 2012).
  11. Sushila Kanwar Poonam Kunwar v. State Of Gujarat (2000 SCC ONLINE GUJ 29, Gujarat High Court, 2000).
  12. Karnika Sawhney (2) v. Union Of India And Others (2008 SCC 17 755, Supreme Court Of India, 2005).
  13. Karnika Sawhney (3) v. Union Of India And Others (2007 SCC 15 637, Supreme Court Of India, 2005).
  14. Suhail Rashid Bhat Petitioner(S) v. State Of Jammu & Kashmir And Others (S). (Jammu and Kashmir High Court, 2019).
  15. Foyam Sk. @ Fhoim Sk. @ Fine Sk. v. State Of West Bengal (Calcutta High Court, 2003).
  16. Hans Raj… v. The Administrator National Capital Territory Of Delhi & Ors…. (Delhi High Court, 1993).