In a significant judgment, the Jammu and Kashmir High Court on Friday 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.

"Criminalization of begging is the outcome of extremely prejudiced social constructs of presumption of criminality against the poor and baseless stereotypes, in ignorance of the extreme exclusion and disadvantages faced by the poor who are struggling to survive. The criminalization of begging which makes poverty an offence, is intended to remove poor people from public spaces, deprive them of the Constitutional guarantees of inclusiveness and pluralism and results in further deprivation to them", observed the judgment given by a bench comprising Chief Justice Gita Mittal and Justice Rajesh Bindal.

The declaration was given in a Public Interest Litigation petition filed by an advocate Suhail Rashid Bhat. The Court had reserved orders on the petition on June 4 and the judgment was delivered today.

Section 3 of the enactment which makes begging, as defined under Section 2(a) of the Jammu & Kashmir Prevention of Beggary Act, 1960, an offence does not require any element of mens rea. As per Section 2(a), begging is defined as :

(i) soliciting alms in a public place, or in or about a temple, mosque or other place of public worship, whether or not under any pretence; (ii) entering on any private premises for the purpose of soliciting alms; (iii)exposing or exhibiting with the object of obtaining or extorting alms, any sore, wound, injury, deformity or disease whether of human being or an animal; (iv)having no visible means of subsistence and wandering about or remaining in any public place or in a temple, mosque or other place of public worship in such condition or manner as makes it like that the person doing so exists by soliciting alms; (v) allowing himself to be used as an exhibit for the purpose of soliciting alms, but does not include soliciting money or fee or gift for a purpose authorized by any law or authorized in the prescribed manner by the District Magistrate.

The Court observed that this definition was "vague, overbroad and not narrowly tailored so as to achieve the object".

The definition of begging under Section 2(a) of the enactment criminalizes people for what they are rather than what they do. The criminal sanction under Section 3 of the Act, 1960, on the communicative activity is content based and premised on presumption of criminality of the poor under Section 2(a) of the Act, said the Court in the 196-pages judgment.

The judgment authored by Chief Justice Gita Mittal also observed that begging involves peaceful communication with strangers, verbal or non-verbal, whereby a beggar conveys a request for assistance. Such communicative activity is essentially part of the valuable right of freedom of speech and expression guaranteed to all under Article 19(1)(a) of the Constitution of India.

The prohibition of communicative activity by beggars in public spaces is violative of their rights guaranteed under Article 19(1)(d) of the Constitution, declared the Court.

The restrictions imposed are in a manner more intrusive than necessary. The restrictions are inappropriate and, for this reason as well, are not saved as permissible regulation under Article 19(2) of the Constitution of India.

"The provisions of the Jammu & Kashmir Prevention of Beggary Act, 1960 and the Jammu & Kashmir Prevention of Beggary Rules, 1964, unreasonably, unfairly and arbitrarily invade the right of free speech and expression guaranteed under Article 19(1)(a) and (d) of the Constitution. The law also upsets the balance between the rights guaranteed and such reasonable restrictions, that Article 19(2) constitutionally permits, as may be imposed thereon. Such restrictions are not in the interest of public".

The Court also found that the Act infringed rights under Article 21 of the Constitution.

"Begging manifests the failure of the State to ensure basic entitlements of health, food, clothing, shelter, just and humane conditions of survival, opportunity to work which are all essential concomitants of Article 21 of the Constitution of India. The J&K Act of 1960 and the Rules of 1964 result in disproportionate infringement of the right to a meaningful life, dignity, privacy and liberty guaranteed under Article 21 of the Constitution of India of the poor.", observed the judgment.

"The deprivations and compulsions imposed, envisaged and permitted under Rules under Rules 6, 8, and 9 of Rules of 1964 in the detention centers enable treating the detained person with utmost disdain and disrespect, violate his dignity, thus also eroding his self worth, are also an extreme intrusion on the privacy of the detained person and are an assault on the guarantee assured to all persons as in contained in Article 21 of the Constitution of India", added the Court.

The Court declared that all prosecutions under the enactment against the persons alleged to have committed offences of begging would not survive.

The judgment has referred to a post in the blog of constitutional scholar Gautam Bhatia which discussed the "vicious colonial logic" that underlay the anti-begging laws.

The Court observed that begging was a result of the failure of the State to discharge the constitutional mandate to ensure socio-economic justice for all citizens, by stating as follows :

"The State Government has failed to ensure discharge of the Constitutional mandate under Section 13 of the Constitution of India as well the Constitution of the Jammu & Kashmir State, to ensure the citizens of the State justice-social, economic and political and a society that promotes welfare of all; that Sections 19(a) and (d) which enjoins upon the State to make provisions for securing amongst others the right to work, adequate maintenance in the event of unemployment and other cases of undeserved want by providing social insurance; Section 23 which guarantees to the socially and educationally backward section of people special care, and, inter alia,protection against social injustice".

Notably, as the Acting Chief Justice of Delhi High Court, Justice Gita Mittal had authored a judgment in 2018 striking down the beggary prevention laws prevalent in Delhi.

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