INDIA OUTRIGHT CRIMINALISES DESTITUTION
I humbly submit that ours is a criminal nation that denies basic human rights to its extremely poor, destitute, and beggars, and ironically instead it criminalises destitution.
In this piece, I bring out from the closet the inhuman statute that treats the destitute of the country as criminals and mandates their imprisonment up to at least thirteen years (and if the law is interpreted carefully, even for life) without a warrant and based on the sham of a summary trial. I next provide a tell-all commentary on the abominable living conditions inside the Beggar’s Homes (acronyms for beggar’s detention centres) that as per my informed opinion are worse than the pigsty and, finally, I postulate sustainable pathways for changing life and times of the destitute of India.
Why this piece on homeless, destitute, and beggars in a country that has set its sight to reach the moon – “the exalted place in the galaxy of nations with the developed country status by 2047, when India celebrates one hundred years of independence from the oppressive British colonial rule”?
And why am I obsessed with this tiny subset of forgettable Indians? The reason is twofold: one, I dare to care, because these are the people whose life is mired in abject poverty, outright destitution, extreme malnutrition, full of life-threatening diseases, and ultra-low shelf life, much lower than that of the normative population. Two, we the people, do not care about these hapless Indians; rather, we trample upon their basic human rights wantonly with impunity and treat them as a slur on society.
FIRST, WHO IS A DESTITUTE?
Oxford Advanced Learners Dictionary defines a destitute as one without money, food, and the other things necessary for life. And as per the Cambridge dictionary, a destitute is one without money, food, a home, or possessions.
DESPICABLE LIVING OF DESTITUTE IN INDIA
Though the 2011 Census of India somehow arrived at the number of beggars in the country as slightly above four lakhs, I posit that the task of actual counting of the number of destitute (the ‘Invisible Visible’) in the country is a matter of conjecture- ‘a big blackhole’, a task more onerous than squaring the circle, more difficult than even counting the number of fish in the Indian Ocean. Nonetheless, while the epidemiology of the prevalence of destitution is guesswork, their despicable living conditions are not- ‘they live unliveable horrifying life’.
The most recent documentary ‘The Invisible Visible’ by the multiple award-winning director Kirit Khurana based on the lifetime work of one individual, Ashoka Fellow Mohammad Tarique, the founder-director of ‘Koshish’, a field action programme of Tata Institute of Social Sciences (TISS), gives a clarion call to the nation as to why it should care for its destitute, homeless, and beggars.
But first, how many destitute are there in number?
Destitutes represent a large subset of the country’s homeless population. The travesty is that India does not count its poor and destitute properly. According to the 2011 Census, the country has 1.77 million homeless people, who are a sum-total of destitute men, women, physically and mentally disabled, mentally ill, vagabonds, elderly, and children. And there is no sanctity of this data of the destitute arrived at following the point-in-time method of enumeration.
The sum total of homeless assessed by this writer in just the eight most populated metropolises of the country far exceeds the number of the Census data. And if we properly count the number of homeless destitute using the prism of the UN definition (that includes those without inadequate housing), the homeless population of India shall exceed 50-60 million. And make no mistake, it is conservatively estimated that only the number of street children in the country is eighteen million (bigger than the population of most metropolises other than national capital Delhi).
UMBRELLA STATUTE TO DEAL WITH DESTITUTION
Ironically, India is a country where Swami Vivekananda once maintained that service to God should mean service to the poor, and he coined a novel word, “Daridra Narayana – God in the poor and the lowly”, as a religious axiom. Daridra Narayana brought in an element of the sense of duty that was enjoined on the men and women of the country to serve the poor if they wanted to serve God.
But that is not the case in post-Independence India, where there is only one way to deal with the destitute, as criminals, under the aegis of the single-umbrella statute that deals with the destitute, ‘The Bombay Prevention of Begging Act, 1959’, not only abominably criminalises destitution but reduces the destitute to the status of non-citizens bereft of basic human rights. It is also instructive to note that the statute that was originally meant to be applied only in the state of Maharashtra has been adopted mutatis-mutandis by at least twenty states and many union territories.
ALL-ENCOMPASSING DEFINITION Of A BEGGAR
Section 2 (1) of the Bombay Prevention of Begging Act, 1959 defines Begging as-
(a) Soliciting or receiving alms, in a public place whether or not under any pretense such as singing, dancing, fortune-telling, performing, or offering any article for sale; (b) entering on any private premises for the purpose of soliciting or receiving alms; (c) exposing or exhibiting, with the object of obtaining or extorting alms, any sore, wound injury, deformity of diseases whether of a human being or animal; (d) 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 exist soliciting or receiving alms; (e) allowing oneself to be used as an exhibit for the purpose of soliciting or receiving alms.
It is apparent from the abovementioned definition of begging that it is broad enough to include all types of destitute and has substantial loopholes to pick any person wandering on the street, brand him/her a beggar, and haul him/her and imprison them.
PUNISHMENT FOR BEGGING
Here are some shocking provisions of the Act-
One, as per Section 4 of the Act, the police officer or any person authorised on this behalf can- ‘arrest without a warrant any person who is found begging’ and would present that person to the court.
Two, as per Section 5 of the statute, if based on the ‘summary inquiry’, the court is satisfied that such a person was found Begging, it shall record a finding that the person is a Beggar and the court shall punish such a Beggar with detention in a Certified Institution ( the Beggar Home or Prison) ‘for a period of not less than one year, but not more than three years’.
Emphasis supplied- As such, if caught begging, a beggar for his first offence of begging, is liable to be ‘detained for a period between one to three years’. Worse, to mete out such inhuman and harsh imprisonment after arresting without a warrant and after fraud of a summary trial, all a court requires is the report of the Probation Officer (an overzealous motivated government employee appointed under the Prevention of Beggary Act) and worse whose report is treated as confidential by the court.
Three, as per Section 6 of the Act, whenever, if a beggar, having been previously detained in a Certified Institution under this Act is found begging again for the second or subsequent time, he/she shall be convicted to be ‘detained for a period of ten years’ in a Certified Institution, and the court may convert any period of such detention (not exceeding two years) into a sentence of imprisonment extending to a like period.
Emphasis supplied: It is sardonic, that merely if found begging for the second time, having been detained/imprisoned for a period of up to three years for the first crime of the begging, the beggar for the second time caught begging is liable based on summary trial to be detained/imprisoned for ten years. As a corollary, if after a maximum of 13 years in detention (3 years for the first-time begging and 10 years for the second-time begging), the beggar is again caught and sentenced for begging for the third or subsequent time, theoretically he/she is liable for 10 more years of detention/imprisonment, making it a compounded offence.
Clearly, the statute provides for near detention for life for repeated offences of begging and all such sentences, under Section 7 of the absurd and the unjust statute, are based on summary trial and all arrests by the police officer are without a warrant. The statute does not provide for an early release for improved/exemplary behaviour of beggars while in detention but provides for compounding of the detention indefinitely if caught begging again and again.
Four, ironically, criminals imprisoned in Indian jails are housed, clothed, and fed by the government, but unfortunately, if a beggar is detained under Section 5 or 6 of the Beggary Prevention Act, the court, which makes an order for the detention of beggar is also authorised to order the parent of the beggar to fend for the beggar’s maintenance and such order for maintenance is enforceable in the same manner as an order issued under Section 488 of the Code of Criminal Procedure, 1898. More cruelly, under Section 9 of the Act, along with the beggar, his/her dependants are also liable to be detained/imprisoned and if such a dependant is a child, the court shall forward him/her to a court constituted under the Children Act for being dealt with there. Such children invariably land in Children’s Homes where their extreme sexual maltreatment is the norm rather than an exception.
Five, the most damning are the provisions of Section 10 of the statute, which mandates that when any person, who is detained in a Certified Institution under Section 5, Section 6, or Section 9 of the Act, if such a beggar is blind, a cripple or otherwise incurably helpless, the Chief Commissioner may order that he shall after the expiry of the period of detention be further detained indefinitely in the Certified Institution. The only way such a beggar can escape detention is if some other person executes a bond (or without surety at the mercy of the Chief Commissioner) and takes the responsibility to provide the housing and maintenance of such an inmate beggar and takes responsibility to prevent such a beggar from begging or being used for the purpose of begging. What a blatant provision it is where a third party is required to take responsibility for the welfare of such hapless beggars.
Six, a large section of educated, middle-class, neo-rich, and wealthy Indians hold the partisan view that begging in the country is an organised crime, perpetrated under the auspices of begging syndicates. This view got further entrenched by the Oscar-winning movie ‘Slumdog Millionaire’. If this is the truth, the statute must provide exemplary punishment to begging syndicates or to those who employ people for begging. Sadly, provisions of the statute are laughable in this regard- while a beggar can literally spend his/her life in detention in Beggar Home or in prison, the maximum punishment prescribed under Section 11 of the Act for persons who employ or otherwise encourage people to beg is imprisonment for a term which may extend maximum up to three years, but which can be as low as one year.
THIS IS NOT MY INDIA
I say, this is not my India. And if this indeed is my India, which it is, I hang my head in shame. And the reasons are many.
One, ‘Ei incumbit probatio qui dicit, non qui negat,’ the Latin maxim of criminal innocence till proven guilty is the holy grail of global jurisprudence and it indubitably is the elixir of criminal juris. And it is worth noting that as per the United Nations Declaration of Human Rights, 1948 (Article Seven, Section One), the cardinal principle is that a defendant is innocent until proven guilty. This is also the provision under Anglo-Saxon Law where the presumption of innocence is one of the most sacred principles in criminal jurisprudence. The concept of “innocent until proven guilty” means that a suspect—a person accused of a crime —is presumed to be innocent until he or she has been found guilty of the crime by a court with appropriate jurisdiction. In Indian jurisprudence too, courts have generally held the presumption of innocence as the norm, with the caveat that in 2021, the bench of Justice DY Chandrachud and MR Shah of the Supreme Court of India, ruled that once the accused has been convicted by the trial court, there shall not be a presumption of innocence thereafter and the apex court asked High Courts to be “very slow in granting bail to the accused pending appeal who are convicted of the serious offences such as murder”. Also, before the trial court pronounces guilty, the defendant accused is accorded the full opportunity to prove him innocent.
Two, while ‘innocent until proven guilty’ is the fundamental human right of the accused and is the holy grail of jurisprudence, the contrary is the case of the Prevention of Beggary Act- the paradigm here is ‘Guilty till Proven Innocent, worse Guilty even if Proven Innocent’ because once arrested (that too without a warrant), based on a partisan report of the government probation officer (ironically the report is considered confidential by the court) the beggar gets a one-way ticket to hell.
Three, such a position of the Act, is in gross violation of the Fundamental Rights under the Constitution of India and militates against the basic Human Rights guaranteed under the UN Declaration of Human Rights, 1948, of which India is a signatory and currently an elected member of the Human Rights Commission.
Four, under the Code of Criminal Procedure, 1973, read with the Indian Penal Code, 1860, the maximum imprisonment prescribed for being caught with illegal arms and ammunition is 10 years, and so it is the punishment for armed robbery (fourteen years in case of daytime highway robbery). And except in the rarest of the rare cases of murder, an accused convicted for life for murder often gets remission for exemplary behaviour in jail and is freed after fourteen years of imprisonment. But there is no such luck to a beggar found begging multiple times- he does not even get parole or get freed temporarily on furlough.
Five, just gross injustice meted out to hapless beggars also militates against the following 2018 judgement pronounced by the division bench of the Delhi High Court-
“People beg on the streets not because they wish to, but because they need to. Begging is their last resort to subsistence; they have no other means to survive. Begging is a symptom of a disease, of the fact that the person has fallen through the socially created net…Criminalising begging is a wrong approach to deal with the underlying causes of the problem.”
Six, the dagger of the Prevention of Begging Act dangles dangerously to pierce the weakest of hearts of the Indian destitute, despite the July 2021 observation of the bench of Justice DY Chandrachud and Justice MR Shah of the Supreme Court of India, which refused to ban begging, saying it was a socioeconomic problem and that beggars can’t just be “wished away from public places and traffic junctions”, simply because the beggars and the homeless take to the streets to eke out an elementary livelihood due to poverty. The Supreme Court bench in its two-page order also stressed upon the need for a wider social welfare policy by central and state governments to rehabilitate beggars, especially the kids living at traffic junctions and other public places, and provide for their education and employment to ensure that they can lead a better life.
I say loudly, with the full authority of the basic principles of the Constitution of India and the fundamental tenets of Indian jurisprudence, begging is not and cannot be a crime. Begging is the ultimate act the destitute in the country resort to survive (India is one of the most inequitable countries in the world as per the World Inequality Report, 2022), in a nation without any semblance of a social security net for the poor and the destitute.
In the first decade of this century, I alongside Young-Turk, Mohd. Tarique (a one-man institution whose life mission is to improve the lives of the homeless, destitute, and beggars), worked in two committees appointed by the Social Welfare Department of the Delhi state government to improve the life and times of beggars in the national capital, but nothing concrete came out of the committee. Tarique has battled much of his adult life for this cause close to his heart.
These committees came much before the abovementioned 2018 judgement of Delhi High Court and 2021 observations of the Supreme Court.
My conscience weeps, at the flagrant violation of the basic human right of the destitute in India, more particularly because their plight has so far not pricked the conscience of the central governments of all hues for the last seventy-five years, despite some crocodile tears now and then, and that despite all the right intentions, even your Lordships of the Supreme Court of India, have not yet managed to scrap the Anti-Beggary Act altogether from the statute book, treating it as inhumane and unconstitutional while the state governments continue to go berserk with impunity stuffing the destitute on the mere doubt of being beggars in the Beggar Homes (Certified Institutions), or prisons.
Every time a dignitary visits an Indian city, or an event of international importance is there, the destitute, beggars, homeless, mentally ill, physically incapacitated men, women, and even children are overnight hauled, detained, and imprisoned, to clean and clear the city from the supposed nuisance and menace of begging.
Their only crime is ‘they are destitute’.
BEGGAR HOMES ARE WORSE THAN PIGSTY
Once hauled and sentenced under the Prevention of Beggary Act, the destitute invariably are stuffed inside Beggar Homes.
And, having visited and spent a reasonably long time inside beggar homes from Delhi to Mumbai, from Mysuru to Chennai, and from Patna to Kolkata trying to internalise the plight of the destitute, whose sole crime is that they are forced to beg for survival, I hang my head in shame in admitting that Beggar Homes where the destitute are stuffed without a warrant and based on a sham of a trial are far worse than a pigsty.
A sage man once famously said that the proof of the pudding is in the eating. If that is the case, the following three representative cases should be eye-openers for the powers that be and settle the case of the destitute.
One, way back in 1984, a horrifying expose by reputed journalist Prabhu Chawla in India Today discovered that Delhi’s Beggar Homes were a grim testimony of negligence. Not only did they lack basic facilities, but overzealous authorities rounded up the innocent as beggars. Investigating the prevailing conditions at Beggar Homes at Delhi’s Kingsway Camp, Prabhu Chawla further revealed that alarmingly, the abnormal number of deaths among beggars in the Beggar Homes was directly related to the conditions and facilities at the homes; and the shocking allegations by some inmates that they were not beggars but had been rounded up by overzealous authorities who were intent on filling quotas.
This author’s subsequent multiple visits to Beggar Homes in different states of the country over the last twelve years attest that the conditions have only worsened over time.
Two, a Midday Mumbai edition story published in 2014, referencing a study by Koshish citing Mohd Tarique of Koshish, had this shocking revelation- the conditions in Mumbai Beggar Homes were not only extremely poor, but the custodial nature of the law was merely an aspect of vulnerability and exploitation that the law creates. The Koshish investigation also exposed that in the Chembur Beggar Home, around 70-80 per cent of the people were the elderly suffering from mental illnesses, cancer, and even persons who were simply walking on the roads when they were hauled up, while their frantic families were desperately on the lookout for these missing relatives, unaware that they had been forcibly taken away by the police from the road and put into a Beggar Home.
Three, lastly, the most shocking was the grim situation prevailing in the Balika Griha at Muzaffarpur, Bihar, that emerged out of a social audit by a team of youngsters from Koshish. I find recounting the horror story of the Muzaffarpur case nauseating. It was a case where dozens of hapless minor girls (some tiny tots) were brutally and serially raped and in many cases, even their private parts were burned with cigarette butts. The sordid saga is grimly documented in the opinion piece written by this author on June 26, 2018, on the News18 platform.
POSTSCRIPT
If the torture of the destitute is not stopped forthwith, and if destitution is not forthwith decriminalised, the next generation of the country will not forgive us. It is time now for India to at once scrap the Bombay Prevention of Beggary Act, 1959, and its mutant variants in other states and bring the regime of dare to care for the destitute, create a social security network for those who are unable to work, and reskilling, education, rehabilitation, and employment of those who can.
It is time to say loudly and unequivocally, “Being destitute is not a crime; the real crime is governments, statutes, and society treating the destitute as criminals.”
India, your time to act is now- enough is enough. Period.
Akhileshwar Sahay is a Multi-disciplinary Thought Leader with Action Bias and Impact Consultant. He also works at the cross-section of mental illness, homeless, destitution, and beggary. He is a long-term associate of Koshish, a Field Action Project of Tata Institute of Social Sciences (TISS) that works to improve the lives of the homeless, destitute, and beggars. The views expressed in this article are those of the author and do not represent the stand of this publication.
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