Human Rights Issues

[op-ed snap] A blow against punitive constitutionalism

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Nothing much

Mains level : Beggary act

Context

Two centuries of colonial rule imposed many cruelties upon Indians. There was criminalisation and stigmatisation of entire populations that did not “fit in” to a certain, narrow way of life.

Examples of such laws

    • Criminal Tribes Act –  indigenous peoples were deemed criminals by birth and herded into concentration camps, where families were separated and forced labor was the norm.
    • Post Independence – despite Independence and adoption of Constitution, post-colonial Indian state replicated many of the worst excesses of the British regime.
    • “Beggary law” – it was enacted in Bombay in 1958, and later extended to many States and Union Territories. 
    • These laws criminalise itinerant and nomadic communities, anyone who does not fit the state’s definition of a “normal” citizen.
    • They establish a system of “certified institutions” that are little better than detention centres.
    • They facilitate the continued stigmatisation and incarceration of some of the most vulnerable and marginalised segments of society.

Recent judgment

    • Jammu and Kashmir High Court struck down that state’s iteration of the Beggary Act. 
    • It identified the colonial origins of the law and found it to be a gross violation of human dignity, equality, and freedom.

The Beggary laws

    • Broad 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”.
    • Beyond begging – beggary laws go substantially beyond criminalising the act of begging. They criminalise people who are “wandering about” and who look like they might need to beg at some point.
    • Purpose – 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.
    • Process – People found “begging” can be arrested without a warrant and thrown into “Beggars’ Homes” for a year to three years. The Jammu and Kashmir Prevention of Beggary Rules authorised 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.
    • Government defense – The government defended the law on the ground that it was necessary to make “good citizens” out of “beggars”, and that it was necessary to maintain public order.

Analysis in the judgment

    • Origins of such statutes – Under the belief that people without settled means of sustenance were a threat to society, a number of “vagrancy statutes” were enacted and served as precursors to the beggary laws. 
    • In India – begging was first criminalised in the 1920s to “subjugate certain communities by imputing criminality to them.”
    • What begging indicates – begging and homelessness is indicators of abject, chronic poverty. Poverty had social causes. Beggary is a manifestation of the fact that the person has fallen through the socially created net.
    • Poverty not individual created the court rejected the view according to which poverty is a consequence of individual failings.
    • Fundamental rights – “begging” was a peaceful method by which a person sought to communicate their situation to another, and solicit their assistance. It was protected under Article 19(1)(a)’s freedom of speech guarantee.
    • No proof – the government failed to demonstrate how incarcerating “beggars” into homes would transform them into “good citizens”. 
    • Public spaces access – by criminalising “wandering about” in public spaces, the law attempted to exclude the poor and marginalised from places that were meant “for the enjoyment of every member of the public without exception.” It also violated the constitutional guarantee of freedom of movement.
    • Nature of existence – a large number of itinerant communities such as the Gujjars and the Bakarwals, whose very nature of existence is moving from place to place. This would bring them within the ambit of the beggary law. 
    • Dignity – by effectively criminalising poverty, the beggary law violated basic human dignity.
    • Prejudiced view – The legislation was steeped in prejudice against poverty and premised on an absolute presumption of potential criminality of those faced with choicelessness.
    • Right to life – coupled with the draconian processes under the Act, it violated the right to life and personal liberty under Article 21 of the Constitution.

Submerging individual rights

    • Recent years have seen the rise of a phenomenon known as “punitive constitutionalism”. 
    • It seeks to submerge individual rights to a grand and undefined national project. It says that an individual may be stripped of their rights if they do not do their bit to contribute to this project. 
    • Laws barring political participation to those who have more than two children, or who lack formal education, effectively make freedom and equality conditional upon the state’s vision of what a “good citizen” should be like. 
    • Rights are no longer about being human, but about earning the right to be treated as a human.
    • The beggary laws belong within this same family of punitive constitutionalism.

Conclusion

The Jammu and Kashmir High Court’s judgment is explicitly premised upon the unconstitutionality of “invisiblising” a social problem by criminalising it. Thus, it shows us the exact way in which our Constitution rejects this harsh world view.

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