The Jammu and Kashmir High Court declared criminalization of beggary to be unconstitutional and struck down the provisions of the Jammu &Kashmir Prevention of Beggary Act, 1960 and the Jammu & Kashmir Prevention of Beggary Rules, 1964.

Background: The Beggary laws in India

India has no federal law on begging and destitution. About 20 states had adopted the Bombay Prevention of Begging Act, 1959, which carries a penalty of detention of three to 10 years in so-called beggar homes.

The definition of “begging”:  “Begging” is defined as “having no visible means of subsistence and wandering about or remaining in any public place... in such condition or manner, as makes it likely that the person doing so exists by soliciting or receiving alms”. 

Arrest without warrant: People found “begging” can be arrested without a warrant, and after a summary procedure, thrown into “Beggars’ Homes” for anything between a year and three years. 

Upon a “second offense”, the punishment could extend up to seven years. 

The Jammu and Kashmir Prevention of Beggary Rules, framed under J&K’s version of the Act, authorized forced medical examinations of “beggars” taken in police custody, “shaving” of hair and “removal of clothing” in order to undertake the euphemistically-phrased “cleansing” of the body.

Govt.’s argument supporting beggary law: The government’s stated that by criminalizing “begging” and incarcerating “beggars” into homes,  it aims to turn people into “good citizens”.

Summary of J&K High Court Judgment:

  • The colonial origins of the law: In India, begging was first criminalized in the 1920s, as part of a colonial logic that sought to “subjugate certain communities by imputing criminality to them.”
  • Begging and homelessness are indicators of abject, chronic poverty:  Beggary is evidence of the fact that the State has failed to ensure that all citizens have even the basic essential facilities.
  • Violation of Article 19(1)(a)’s freedom of speech guarantee: As “begging” was a peaceful method by which a person sought to communicate their situation to another, and solicit their assistance, it was protected under freedom of speech.
  • Violation of the constitutional guarantee of the freedom of movement: The court also noted that by criminalizing “wandering about” in public spaces, the law effectively attempted to exclude the poor and the marginalized from public places.
  • Violation of basic human dignity: The legislation was “steeped in prejudice against poverty and premised on an absolute presumption of potential criminality of those faced with choicelessness. It violated the right to life and personal liberty under Article 21 of the Constitution.
  • Tribal communities such as the Gujjars and the Bakarwals: their very nature of existence — moving from place to place, and displaying none of the “conventional means of subsistence” — would bring them within the ambit of the beggary law. 
  • Vague terms:  What does ‘visible means of subsistence’ envisage? Is it waving economic prosperity in public spaces or to have a hefty bank balance. It's not clear.

In an earlier case, Delhi High Court decriminalized beggary by striking down, as unconstitutional, certain sections of the Bombay Prevention of Beggary Act, 1959, as extended to Delhi.

Among the 25 provisions struck down are those permitting the arrest, without a warrant, any person found begging, taking the person to court, conducting a summary inquiry and detaining the person for up to 10 years. 

It said that the government has the mandate to provide social security for everyone, to ensure that all citizens have basic facilities, and the presence of beggars is evidence that the state has not managed to provide these to all its citizens,

Criticism of beggary laws:

  • Punitive constitutionalism: Punitive constitutionalism seeks to submerge individual rights to a grand yet often undefined national project by holding that an individual may be stripped of their rights if they do not do their bit to contribute to this project. It effectively makes freedom and equality conditional upon the state’s vision of what a “good citizen” should be like. The beggary laws belong within this same family of punitive constitutionalism. 
  • Beggary laws go beyond criminalizing the act of begging; rather, they criminalize people who are “wandering about”. 
  • The purpose of such provisions is not to protect public peace or prevent crimes, but to effectively “cleanse” these spaces of individuals who appear poor or destitute.