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Penalising Poverty

The Case of the Bombay Prevention of Begging Act, 1959

Vijay Raghavan (vijay.r@tiss.edu) teaches at the Centre for Criminology and Justice, Tata Institute of Social Sciences, Mumbai. Mohammed Tarique (tarique@tiss.edu) is with the Director’s Office, Tata Institute of Social Sciences, Mumbai, and is the project director of Koshish.

The unconstitutional Bombay Prevention of Begging Act, 1959 criminalises begging and targets people for being homeless or unemployed despite “the relief of the disabled and unemployable” being a state responsibility. The state penalises the poor for being poor. Instead, it must identify and understand the reasons that lead people towards begging and alter laws and policies to provide for structures and an institutional framework that build people’s capacities to move out of destitution. Myths around begging must be broken to effect a change in perceptions and attitudes to achieve this end.

The historical origins of anti-beggary laws can be traced to 14th century England, when feudalism was breaking down to give way to capitalism and the Black Death had created a massive shortage of labour. The first vagrancy law came into effect in 1349, criminalising homelessness in cities. The law was created to force farm-based labour to remain tied to the landowning class and ensure that wages were kept low. As capitalism took firm root, amendments were made in the beggary and vagrancy laws to criminalise “idleness” and “rowdy” or “indecent” behaviour, rather than movement of labour to the cities. By the 16th century, the emphasis of the legislation across Europe and the United States had shifted to controlling the behaviour of the rootless poor, who were seen as people with potential to disturb the social order (Chambliss 1964; Beier and Ocobock 2008).

The vagrancy and beggary laws in India are a colonial hangover, promoting unequal labour relations and used as a tool of social control over the “unruly.” The Bombay Prevention of Begging Act, 1959 (BPBA; Government of Maharashtra 1959) is a comprehensive piece of legislation that criminalises begging in the country. Many states (such as Delhi and Gujarat) have adopted this act, either in toto or with minor changes. As far as the constitutionality of these legislations is concerned, they go against the grain of due process rights and are specifically in violation of Articles 19(1)(a) and 21 of the Constitution.1 The BPBA criminalises people for being homeless or without regular employment (who they are) rather than for their actions (what they do) (Goel 2010). Article 38 of the Constitution provides that the state shall secure a social order for the promotion of welfare of the people. Entry nine in the State List of the Seventh Schedule of the Constitution2 makes “the relief of the disabled and unemployable” a state subject. The existence and implementation of anti-beggary laws is thus in direct assault of these constitutional provisions.

The State and the Poor

That the Indian state puts a person into penal custody and can keep them confined within four walls (in beggars’ homes) for an indefinite period (in the case of “incurably helpless” offenders) for actions that are the result of structural inequalities and violence highlights the contradictions that exist between the postcolonial liberal democracy structure, based on the rule of law and fundamental rights, and the Foucauldian concept of governmentality that operates on the ground. This has been borne out by the work of Koshish, a field action project of the Tata Institute of Social Sciences (TISS), which works with the homeless and those arrested under the beggary prevention law in Bihar, Maharashtra, and Delhi.

A few voices of the homeless highlight this narrative of exclusion and discrimination by the state:3

Megha: The government treats us as though we do not exist. If we are poor, what are we to do? We work all day and still do not get paid enough to eat properly. I make toys out of waste and sell them at signals, but the police picks us up for this saying that we are beggars. I am not. We do not want comforts but to live. Is that a crime?

Madhav: I am weak but I have to work. I need to look after my sick wife, daughter-in-law, and grandchildren. Though they have dropped out of school, there are still other expenses. We also need to pay the rickshaw owner whose rickshaw was lost when my son, who hired it, was arrested while he was drinking water.4 We have not yet paid the lawyer his full fees so he is not getting my son released.

Dilip: Life with dignity is not only my need or a choice; it is my right, and I will continue to struggle for it.

Rukshar: No matter how difficult a situation we got into, neither Raju nor I ever begged. We resorted to it only because we needed money for our mother’s treatment and Raju had lost his job after the accident.

Santosh: I take my brother’s help to move around as I am visually challenged. I lost my vision several years back. I couldn’t study and nor can I go out and work, but I ensured that I didn’t become a burden on the family. I sell groundnuts outside the market, where my brother drops me in the morning on his way to work. I am the one who is visually challenged, but it is the police who cannot see that I work, not beg. Just because I can’t see, does that mean I beg? What law is this?

Presently, begging is punishable with up to 10 years of detention under most state laws, with a provision for “indefinite detention” under certain circumstances in some of the state legislations. To fight this injustice and oppose the criminalisation of poverty, Koshish was initiated in 2006. As the project work moved ahead, it became clear that the BPBA does not only criminalise destitute persons but violates their right to live with dignity, affecting all aspects of their lives.

Due to the neo-liberal development paradigm we operate from, and resultant fractured social structures, vast numbers of the poor are compelled to leave their homes in the rural hinterlands and move to cities and towns in search of livelihood and social identity. Poverty; the inability to procure jobs due to illiteracy or lack of skills; disability or disease; and destitution due to old age or mental illness are some of the reasons behind a person entering into begging, often reaching a state of destitution where survival becomes the only concern.

The mechanics of the implementation of anti-begging legislation makes one wonder whether the efforts are directed towards ending begging (as the state claims) or are part of a planned strategy to hide the failure of governance by removing the poor from cities. While on one hand there is significant evidence of increase in number of people living below the poverty line in the country,5 state governments continue to use penal legislation to “discipline” the poor and punish poverty and homelessness. According to available sources, anti-beggary laws exist in more than 20 states and two union territories in the country (Das 2017; Pandey 2017; Team Nyaaya 2017). These legislations criminalise begging; people can be punished for begging, irrespective of their physical, economic, or psychological states of helplessness. While the focus is on the act of seeking alms, no attention is paid to the underlying factors behind it, thus perpetuating the state of destitution for the individuals concerned.

A study done by Koshish (nd) on destitution in Bangaluru confirms that people get into begging due to their extreme states of vulnerability and after every other possible support mechanism collapses. Often, persons with alcohol or drug addictions are processed by the law as beggars, further reinforcing the image of destitute persons as “anti-social.” Some of the other popular myths about those involved in begging include their image as “idlers” and the view that begging is a means of “making easy money.” The people worst affected by these laws are the aged, the abandoned, the disabled, the mentally ill, the destitute, abused women, persons afflicted with leprosy, drug addicts, and transgender persons and members of the hijra community (Koshish nd).

Another section that routinely gets “picked up” under the beggary prevention laws like the BPBA are those from the Denotified, Nomadic and Semi-nomadic Tribes.6 These communities have culturally and historically been involved in occupations such as hunting, fortune telling, snake charming, street performances, warding off the evil eye, and begging. Members of these communities possess skills related to their traditional occupations but have been forced to abandon the same as they have lost their relevance with changing socio-economic realities and because beggary prevention laws outlaw these age-old occupations. Unfortunately, while these traditional skills/knowledge-based livelihoods have become redundant or were made illegal, no steps have been taken to provide alternatives by the state.

The hardships faced by the destitute are further affected by the widespread notions that have been built around begging. One such notion is that most people involved in begging are part of organised gangs and criminal networks. However, in the past 50 years or so since the beggary prevention laws were legislated, there have been hardly any arrests of alleged begging racketeers. Instead, most arrested people have been “caught” for begging.

A Delhi High Court bench, comprising Justices B D Ahmed and P K Bhasin, observed in Ram Lakhan v State (2007), in its order dated 2 March 2009: “The arrest of beggars per se is no solution to the problem as they are mere pawns in the hands of such ring leaders.” The same order carried a significant observation about the need to eliminate gangs that exploit poor and handicapped persons, mostly children, in the racket of organised begging. However, it is still the poor and the destitute that get punished in the name of targeting organised begging.

It is often argued that beggary prevention legislation is necessary as there are gangs and syndicates who make huge sums of money through organised begging rackets and that these laws are required to check and control these rackets. This seems to be a systematic and strategic attempt at shifting the focus from the real issue to a populist view of the problem. The anti-beggary law lacks bite when it comes to curbing organised begging. While it provides for detention of up to 10 years for a person caught for begging (in case of a repeat offence), it provides only for a three-year sentence for an offender who forces a person into begging. Compare this with Section 363(A) of the Indian Penal Code, which provides for 10 years of rigorous imprisonment for a similar offence.

Law as a Penalising Instrument

How the law should perceive begging and destitution is a significant question, given the vital concerns and issues related to these problems. As of now, begging is an offence. However, in a situation where all other survival mechanisms have either collapsed or have been criminalised through legislation, it is essential to examine whether people can be blamed or held responsible for begging.

As stated earlier, anti-beggary laws exist in more than 20 states and two union territories. The features of these anti-beggary laws across states are more or less similar. Criminalising poverty, so that a person gets arrested and committed to an institution for being in a state of destitution is a violation of their rights and a denial of fair opportunity. Detention without adequate systems for capacity-building and rehabilitation only increases vulnerability. Often, those who are working and have been arrested end up losing their jobs due to the fact and stigma of arrest. With arrest, the person’s family too becomes vulnerable to abuse and marginalisation.

The BPBA provides for the detention of not only those who beg but also their dependents. This is possibly the only legislation, with the exception of the Immoral Trafficking (Prevention) Act, 1956,7 in which the offender’s family is punished for being dependent on their income. Regular raids are conducted by the police in Mumbai and the beggars’ home staff in Delhi to “pick up” beggars under the BPBA. During these raids, any person who “looks like a beggar” is arrested, without a warrant, and brought to court for a summary trial (Tarique and Raghavan 2011). The court then sends these people to beggars’ homes on remand. During the remand period, a social enquiry is conducted by a probation officer to find out whether or not the person was begging. The focus is always on whether or the person had been begging rather than trying to find out the reasons for begging. In the process, a large number of people, especially the aged and abandoned or those with physical or mental illnesses, get penalised for being in a state of destitution (Ramanathan 2008).

In a classic example of how the poor are viewed, the Delhi government, with the consent of the Delhi High Court, introduced a system of “mobile courts” in which on-the-spot detention orders could be passed, with hardly any scope for legal representation or defence for the accused. Interestingly, this was done prior to the Commonwealth Games hosted by the city in 2010. The special arrangement made then has, unfortunately, continued to date.

In Maharashtra, once detained under the BPBA, the detainee is made to work (under the pretext of “vocational training”) as agricultural labour on large tracts of land attached to the beggars’ homes and paid wages of₹5 per month as per the Maharashtra Prevention of Begging Rules, 1964 (Government of Maharashtra 1964). The subtext is obvious: the price to be paid for being homeless and without regular work in the city is forced labour with subhuman wages in order to punish and “teach the person how to become industrious labour.”

The lack of prompt and quality medical care for those arrested and detained under the BPBA, many of whom suffer from communicable diseases such as tuberculosis, leads to numerous deaths in these homes. There is complete apathy on the part of the government to improve the facilities, and the situation continues to be a matter of great concern (Menon 2014; Pawar 2014; TNN 2004).

Koshish’s work with inmates of the male and female beggars’ home in Mumbai for over a decade has shown that a large majority of persons arrested under the BPBA are just homeless people picked up by the police during night rounds in an effort to “keep the city clean.” It is interesting to note that the special unit of the Mumbai Police tasked with the job of arresting people engaged in begging is attached to the Azad Maidan Police Station of Mumbai Police, which falls in the south Mumbai area, the seat of power and residence to the elite. Interestingly, police personnel share that, more often than not, they bring in the homeless destitute, especially the abandoned or those with mental illness, to beggars’ homes in the absence of any other “suitable place” to take them. This clearly reflects that the poor pay the price for the state’s inability to take care of its disadvantaged groups.

Vulnerability or Offence

Often, those processed under the BPBA may not be begging per se but constitute the homeless poor. Their vulnerability to extreme situations makes them likely targets for arrest as beggars. Even for those who do beg, there are a range of compelling factors that force them to seek alms. Their act of begging is not out of choice but a reflection of their helplessness.

With the arrest of an individual, their family too bears the brunt of the arrest, as they may be dependents, and especially puts their children at risk. The arrest of an earning member could result in a parent being forced to beg, children dropping out of school and/or being forced into begging or child labour, or the female spouse being forced to work in an exploitative situation. Koshish, in the course of its intervention with persons in detention, has been witness to several such cases (Koshish 2012).

It is in this context that efforts by the court to investigate the social and environmental facts of the case can result in protecting the rights of the person concerned. Having witnessed the consequences of unwarranted arrests from close quarters and speaking from experience of working with people whose lives are significantly affected by arrest, the importance of timely intervention by the court and social workers or probation officers needs to be emphasised here.

The Way Out

The role of the state as a protector of the life and well-being of its citizens underlines its responsibility to reach out to the destitute and those involved in begging as well as to understand their psychological, social, economic, and cultural contexts. As the first challenge, the custodial mindset of the state has to be replaced with a community-based approach. This is possible only contingent to the realisation that one is dealing with a population that has been left behind in the process of development and is being pushed to the margins. While a few instances of behavioural deviance might be present, affected individuals largely need to be approached with sensitivity and care as they need the support of the state for their rehabilitation. As Loïc Wacquant (2008) points out, instead of work fare and prison fare, which the neo-liberal state provides to its urban outcasts, there is a need to build the social and economic capacities of the state, which would care for its poor and marginalised citizens.

It is important to acknowledge that begging as a phenomenon involves many layers, and it is critical to identify and understand the reasons that lead a person to beg for a living. From the experience of Koshish, it emerges that these could range from extreme poverty and destitution to chronic illness, family conflict, and forced migration. These issues need to be studied in totality. Destitution comes not only as a result of marginalisation and exclusion within the larger context of development but also from changing societal values and realities. The movement towards an individualistic society and the breakdown of family support systems is leading to increasing neglect of the aged and disabled, pushing many of them into the streets. In addition, the shrinking of, and reduced access to, welfare schemes and programmes and the lack of relevant livelihood skills in tune with emerging markets are adding to the growing problem of destitution and beggary. Begging is largely induced by poverty and is often tied to various axes of discrimination and social exclusion such as caste, class, age, gender, disability, and ethnic background.

The current approach of the state towards prevention of begging, as explicated earlier, is to criminalise poverty and institutionalise those arrested under the BPBA. This criminalising approach towards the poor goes against the grain of a caring state. It has to address the underlying causes by retracing the lives of the people and identifying the factors and situations which led them to their present state of destitution and dependence. It would be worth analysing the factors and situations to assess how many of them could have been prevented from becoming destitute through positive state action, and more interestingly, how many of them reached a state of destitution through neglect and discrimination by the state.

The Koshish Approach

Started as a field action project of TISS in 2006, Koshish aims to address the twin issues of homelessness and destitution by intervening in custodial institutions that house those arrested under the BPBA. Koshish works with government systems to ensure the protection of legal rights and rehabilitation of citizens detained in beggars’ homes in two states—Maharashtra and Delhi. Additionally, Koshish runs community-based intervention in Bihar.

It organises several interconnected sociolegal programmes for persons detained in beggars’ homes to live a life of honour and dignity after release from the institution. These interventions include tracing their families; offering them legal aid and guidance; submitting social investigation reports before the judiciary in the beggars’ courts about the person’s psychosocial situation; building capacities through vocational skill training and work placement; providing emotional support and counselling; pre-release preparation; creating a network of employers; arranging medical support; training and sensitisation of the state machinery, including institutional staff and the police; and emergency support to families. The community-based program includes an education programme for the children; assistance in acquiring citizenship documents; emotional support to families; support for shelter and livelihood; vocational training; and so on.

Koshish has also been engaged in sharing its experiences in the area of rehabilitation of homeless and destitute populations with civil-society partners in different parts of the country. It has made concerted efforts towards advocacy with various stakeholders with regard to the need for change in law and policy vis-à-vis the situation of the homeless and the destitute. This approach has resulted in long-lasting changes in attitudes and actions, while facilitating access to resources available from the government.

Conclusions

Legislations like the BPBA are part of the series of anti-poor legislations and state interventions that systematically create urban marginalities and exacerbate the process of penalisation of the poor. The need is to adopt a model of development where all sections of the society are included as an integral component of city spaces. The first step towards achieving this end would be to identify and understand the reasons that lead people towards begging. Factors ranging from extreme poverty, forced migration, lack of opportunities for “decent work,” destitution, chronic illness, family conflict, and caste- and gender-based discrimination force the marginalised into begging. Legislation and policy should provide for structures and an institutional framework that builds people’s capacities to move out of destitution. Instead of putting people behind closed institutions, the emphasis should be on creation of shelters and soup kitchens to provide temporary succour to people
in distress.

There are several myths that surround the people living in destitution. These notions are based on untrue but popular perceptions and assumptions and become barriers when it comes to seeking justice against misuse of the law or attempting to access the systems meant for the people’s welfare and development. By creating awareness, building the capacities of the affected groups, and highlighting the hidden or unrepresented side of the lives of the homeless and destitute, it is possible to break these myths and effect a change in perceptions and attitudes at various levels.

Notes

1 Article 19(1)(a) of the Constitution guarantees to Indian citizens the freedom of speech and expression. Article 21 guarantees right to life and liberty. The Supreme Court has interpreted right to life as including the right to livelihood (Olga Tellis v Bombay Municipal Corporation 1986). Ashish Goel (2010) makes an argument that a person who does not have livelihood options has a make a call for alms and beg for livelihood under Articles 19(1)(a) and 21 of the Constitution.

2 The Seventh Schedule of the Constitution
(https://www.mea.gov.in/Images/pdf1/S7.pdf) categorises the subjects to be dealt with by the government into the state, central, and concurrent lists, the basis for the functioning of the federal polity of the Indian state.

3 Based on interviews with inmates of beggars’ homes in Mumbai and Delhi as part of the sociolegal interventions by Koshish team members.

4 Madhav’s son used to ride a cycle rickshaw in Old Delhi, hired by payment of a monthly rent to the rickshaw owner. One day, while on a break from riding the rickshaw to drink water from a public tap, he was picked up by the police under the BPBA. The rickshaw was left abandoned in the street. The rickshaw owner refused to listen to the pleas of the family and demanded that the cost of the rickshaw be paid back.

5 See the report on the Conditions of Work and Promotion of Livelihoods in the Unorganised Sector, better known as the Arjun Sengupta Committee report (National Commission for Enterprises in the Unorganised Sector 2007), which put the estimate of people in India living at less than₹20 per day at 77% of the population, and the Report of the Expert Group to Review the Methodology for Estimation of Poverty, better known as the Tendulkar Committee report (Planning Commission of India 2009) which put the number of people living below the poverty line as 37.2% of the total population.

6 Estimated to be between 60 million (The Resist Initiative International 2007) and 100 million (National Commission for Denotified, Nomadic and Semi-nomadic Tribes 2008), there are 313 Nomadic Tribes and 198 Denotified Tribes in India (The Resist Initiative International 2007). The Denotified Tribes were branded as criminal tribes by the British colonial administration through the enactment of the Criminal Tribes Act (CTA), 1871. These communities were “denotified” after independence, when the CTA was repealed by an Act of Parliament in 1952 (Brown 2016). However, the CTA was replaced with the Habitual Offenders (Control and Reform) Act, 1952. Under Section 2(1)(c) of this act, the formerly notified criminal tribes came to be associated with an alternative term called “denotified tribes.” As per Brown, “this labelling has included a host of social and economic handicaps as well as a long record of violence and abuse at the hands of higher caste groups and frequently state officials” (Brown 2016: 204).

7 The act criminalises “living off” the earnings of a woman in prostitution, thus making dependent family members of a woman in prostitution liable to prosecution.

References

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Updated On : 4th Jun, 2018

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