In most states, you can be arrested for 'looking poor'
Begging is a crime in 20 states and two Union territories (UTs) of India, reflecting society's embarrassment at manifest poverty and annoyance at perceived encroachment of public spaces.
In most places, people can be arrested for "looking poor", as our analysis of laws in 18 states and UTs 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.
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.
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. 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.
Most of the state laws (except 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 of 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.
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.
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. A person accused of begging would typically have no means to hire legal representation, and would find getting bail very hard. Most state laws allow the police to arrest anyone they think is a beggar without a warrant.
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. Further, the bill envisages the issuance of identity cards which can potentially be used for surveillance purposes.
It is easy to see how these laws reflect the commonly perceived nexus between begging and criminality.
States which 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.
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 beggars' home instead.
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.
State laws on begging differ fundamentally in their approach towards the treatment of children found begging. 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 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.
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.
India's policy-makers must develop a consistent and humane approach towards begging. 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.