Discipline and Punish: How Anti-Beggary Laws in India are used to Criminalize Transgender Persons
The Delhi High Court in a landmark judgment (Harsh Mander v. Union of India and Karnika Sawney v. Union of India) has held the Bombay Prevention of Begging Act, 1959, unconstitutional on grounds that it violates the Article 14 (equality before the law) and Article 21 (right to life and personal liberty) rights of persons who have no other means of sustenance but to seek alms for sustenance. The act of begging in Delhi was made a criminal offence after the Bombay Prevention of Begging Act, 1959, was extended to Delhi by a central government amendment in 1960. The Act prescribes a penalty of three years of detention in a beggar home for first time ‘offenders’ who are convicted for begging and the person can be ordered to be detained for 10 years for a subsequent offence.
Criminalizing begging violates the fundamental rights of the most vulnerable people in our society, and ignores the reality that the poorest of the poor are forced to beg not as a choice but as the last resort owing to various socio-economic conditions. A welfare state has the mandate to provide social security for everyone, to ensure that all citizens have basic facilities to live a decent life, and the presence of beggars is evidence that the state has not managed to provide for a decent life to all its citizens. The Court recognized that begging should not be a crime if it is done because of poverty and helplessness, and that “If we want to eradicate begging, artificial means to make beggars invisible will not suffice.” The judgment has rightly observed that the state cannot fail to do its duty in providing for a dignified life to its citizens and then add insult to injury by arresting, detaining and incarcerating poor persons as “offenders”.
The Court acknowledged that the application the Act has been arbitrary, leading to the detention of poor persons who may not be engaged in begging, but could be daily wage workers, sex workers, homeless persons and people who have ‘fallen through the socially created net’. Beggary laws which provide the police with the authority to arrest without a warrant have a disproportionate impact on transgender persons, who often rely on begging and other traditional means of seeking alms for survival. The Act categorically defines and criminalizes various other forms of begging including “receiving alms in a public place, whether or not under any presence such as singing, dancing, fortune- telling, performing or offering any article for sale.” The majority of hijras in India depend on traditional forms of seeking alms at weddings and childbirth or on the streets through a practice known as mangti and toli-badhai. Criminalized under the anti-beggary provisions and laws governing public nuisance and obscenity, transgender persons are subjected to harassment, arbitrary arrest, illegal detention and custodial torture, violating their most fundamental rights. The police often arbitrarily arrest transgender persons under the pretext of such laws, which are vague enough to allow for misuse and disproportionate violence against the most marginalized communities.
The stigma around transgender identities and ‘vagrancy’ has existed since the Colonial era, when the British introduced discriminatory laws such as the Criminal Tribes Act, 1871 (CTA) which provided powers to the police to arrest without warrant nomadic tribes and transgender persons who were found dancing, playing music or taking part in any public exhibition, in a public street. The colonial moral panics around ‘vagrants’ are carried on in post-colonial India through laws that govern beggary, pubic nuisance and public obscenity. A variant of the draconian CTA, the ‘Telangana Eunuchs Act, 1919’, continues to be on the statute books and adds to the existing stigma around transgender persons who engage in begging or sex work. As recently as 2011, the Karnataka Police Act was amended to include a section 36A, titled “Power to regulate eunuchs,” which provides unfettered power to the police commissioner to exert force on transgender population and subject them to arbitrary arrest, detention, extortion or abuse. In 2014, in a major crackdown on transgender persons, the Bangalore police arrested, without warrant, more than 200 transgender persons under various charges such as begging and public nuisance and detained them in a beggars’ colony.
In order to address the historical oppression and stigma around transgender persons and to grant them equal citizenship rights, the Supreme Court in its landmark judgment in NALSA vs Union of India, 2014 affirmed the fundamental rights of transgender persons. The Court noted that transgender persons face extreme violence and discrimination at every stage of their lives, are bullied out of school, lack the formal education to access employment, are subjected to sexual abuse and are pushed to the fringes of society where begging is the only way to make ends meet. Laws, such as the Bombay Prevention of Begging Act, 1959, deprive the most marginalized citizens of their fundamental rights and, often in the case of the hijra community, their only livelihood. This landmark judgment should pave the way for other High Courts to follow suit and decriminalize laws that criminalize persons on account of their destitute state. The judgment rightly observes, “A move to criminalize them will make them invisible without addressing the root cause of the problem.”