In the organic society changing with every second, the way different crimes are committed and the type of different crimes prevailing in the society are also changing with the same pace. And one such crime prevailing in the society being less highlighted along with taking a firm grip for itself in Indian society is the crime of establishing and maintaining gangs of beggars. There is a trend in the market that on a daily basis there are buses and tempos full of beggars coming and beggars being dropped off from them for carrying out their work of begging across the places assigned to them and then returning back in those buses.[2] In fact through such trends it appears that there are some forces in the society who are running factories of producing, training and employing beggars for the purpose of carrying out their intended business of making money through the alms collected by beggars. Begging in the present time by many is not resorted to as a necessity rather it is seen as a profession and taken up as a choice. And one such pertinent instance is that of Mr. Bharat Jain who has been into the practice of begging for four decades, is the owner of ₹7.5 Crores and has been proclaimed to be the world’s richest beggar.[3] Initially he resorted to begging to confront the financial hardships which his family suffered from, but eventually this practice became his main source of income and he started bringing a monthly income of around ₹60,000 to ₹75,000.[4] At present he owns two flats in city of dreams Mumbai and two shops in Thane.[5] Therefore, in this context a germane question is whether begging should be considered as a crime or not, what approach should be adopted by the legal authorities and police personnels towards this practice taking the shape of a menace called begging.

Ad rem here is to note that every coin has two sides and so is the case with every social problem. And Begging is no exception to it. Especially when it comes to the issue of Criminalising or Decriminalising the same. There exist two sides to that effect. The first side comprises the National and several state laws which make Begging a punishable criminal offence. The second side comprises Human Rights Activists and the promoters of Social Welfare Doctrine who support the Decriminalisation of Begging. So, let us peep into the first side of Begging through the lens of Present legal matrix on Begging.

(I) Present Legal Matrix on Begging

By virtue of Entry number nine of State List of the Seventh Schedule of the Indian Constitution ‘Relief of the disabled and unemployable’ is a matter of State List. And thus, it is within the ambit of the state legislature to take necessary preventive and rehabilitative steps for the unemployable which even includes the beggars.[6] Furthermore, under the Concurrent list the subject of ‘vagrancy, nomadic and migratory tribes’ in Entry fifteen List III empowers both the Central and State government to make laws[7] for addressing the issue of vagrancy which takes into its ambit begging also.[8] Till the year 2018, there were as many as around twenty Indian states and two union territories which had their own anti beggary legislations.[9] These inter alia included Andhra Pradesh, Assam, Bihar, Chhattisgarh, Goa, Gujarat, Haryana, Himachal Pradesh, Jharkhand, Karnataka, Kerala, Madhya Pradesh, Maharashtra, Punjab, Sikkim, Tamil Nadu, Uttar Pradesh, Uttarakhand, West Bengal among others.[10]

However, in Delhi and in Jammu Kashmir by their respective High Courts the act of begging has been decriminalised.[11] The act of begging in the national capital territory of 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.[12] In addition to this, s. 144 of the Indian Railway Act, 1989[13] prohibits hawking and begging. As per s. 144 (1) it is prohibited for any person to sell any article whatsoever in any part of a railway including a railway carriage without a government license. Further pertinent is to note that the Railway Act not only prohibits begging and hawking but also provides a penalty of upto one year imprisonment for undertaking such a practice[14] and provision for removal of undertakers of such practice from railway stations, railways and carriages by authorised railway servants.[15]

The previous Criminal Law regime via s. 268 of Indian Penal Code[16] stipulated for an offence called public nuisance if in case a person used to cause injury, danger or annoyance to the public. And when a person begs and insists a person for alms his act can very well be perceived as an act causing annoyance to the public. Hence, it can be patently inferred that public nuisance was clearly being reflected by the practice of begging on the part of beggars under the old Penal law. Furthermore, s. 363A of Code[17] prohibited the act of kidnapping or maiming a minor for the purposes of begging. If any person who was not the lawful guardian of a minor used to employ or used to use a minor for the purposes of begging, he/she was considered to have committed such an offence.

Under the regime of new criminal laws public nuisance[18] and the offence of kidnapping a child for begging[19] is still the same. Moreover, if any person recruits, transports, harbours, transfers anyone for the purpose of exploitation which includes begging then it firstly is considered as an offence of Trafficking of a person[20] and secondly it is punishable with rigorous imprisonment with a minimum of seven years and which may extend to ten years.[21] If in case such an exploitation is being done with more than one person[22] or with a child[23] then the minimum punishment prescribed by Sanhita is ten years and maximum is life imprisonment. In addition to this, under s. 139 of the new Penal legislation if anyone kidnaps a child for the purpose of employing them for begging then he or she will be subjected to a rigorous imprisonment from ten years to life imprisonment.[24]

It is germane at this point to further take into account s. 76 of the Juvenile Justice Act, 2015^[25] which creates the offence of employment of a juvenile or child for begging. The offence is punishable with imprisonment for a term of up to five years or a fine of 100,000 rupees. So, after peeping into the different legal provisions including the new criminal law regime, the question or the issue of whether begging should be treated as a punishable offence or note becomes more important. At this juncture the second side to this social menace becomes vital which can be traced from the lens of the Human Rights Angle on Begging and blatant violation of the doctrine of parens patriae.

(II) Human Rights Angle on Begging

A Human Being is not just a living being and rather is an abode for several fundamental human rights. Human Being is not just a skeleton of Bones, it has a life in it and in order to enable that life to exist in its true sense certain fundamental rights have been ascribed to them. The nature of these fundamental rights is such that it enables the Human Beings to conquer different vicissitudes of life. Laws since its inception from city states to social contract to utilitarianism and finally to constitutional democracies have been struggling to reconcile with the perennial question of Individual rights.[26] In the Indian context this is even more significant as the country since its independence has been in its quest to myriad forms of justice.[27] And over the passage of time, by virtue of judicial activism and transformative interpretation the scope and ambit of these fundamental rights has increased manifoldly.

However, the truth remains that these interpretations and applications have not been able to obliterate the tyranny of unjust laws for the people who are referred to as beggars. And a firm testimony to the same is evident from the extant anti-beggary laws that have been adopted by several Indian states. Despite the judgments of different High Courts striking out the provisions declaring begging illegal, there still exist provisions in several States which punish people simply because they look poor.[28] According to the human rights activists by virtue of the basic fundamental principles of natural justice and Constitution namely justice, equity and good conscience it is essential that for an act to be treated as a crime such act which is prohibited by law should have been committed voluntarily and should be performed with mens rea and actus reus causing physical injury, mental injury or injury to property. However the act of begging is an involuntary act which causes no harm of any sort to the body, mind or property of anyone. In fact, begging causes self injury rather than injury to others.[29]

Furthermore, ad rem at this juncture is the doctrine of parens patriae which is the other weapon of Human Rights activists against the anti begging laws. The basic essence of this Doctrine is that the state is the parent of the nation. And being a parent it is incumbent upon the state to take every possible measure to ensure that all the basic fundamental human rights are not snatched away from its people. It is obligatory upon the state to provide employment opportunities to the people unemployed and devoid of right to life and personal liberty, right to education among other rights to all its people including destitute. The Doctrine implies that the state is entitled to protect the rights of those citizens who are unable to protect their own interest.[30] So, under the umbrella of doctrine of parens patriae the human rights activists contend that if a person because of sheer poverty is forced to beg for food, clothing or shelter then it is not a reflection of a wrongful act done on the part of the person concerned but rather it is a reflection of failure on the part of the state in performing an obligation imposed on it. It mirrors that the state has clearly failed in fulfilling its constitutional obligations of providing adequate employment opportunities, livelihood, food, dignity, health among other essentials of life. A firm reliance on this reflection is time and again evident in several judgments of the apex Court. For instance, when the world was hit by the Corona pandemic, a petition was filed before the Supreme Court of India to prohibit the beggars from begging. However, the Court rejected this petition on the ground that they cannot take an elitist view and make the helpless more helpless by not even allowing the helpless and vulnerable to beg in those hapless circumstances of pandemic.[31]

Therefore, in this context, it becomes significantly pivotal for a welfare state like India who is persistently working for the accomplishment of fundamental rights of every segment of the Indian society to determine whether a practice so important should be a crime in the Indian democracy or not. Should vulnerable people be treated as criminals and put behind the bars?

[1] Anshika Juneja is a practicing Advocate and can be contacted at anshikajuneja94@gmail.com.

[2] Rohit Kumar Singh, “Larger criminal nexus suspected behind organised child beggary in U.P.”, Hindustan Times, July 07, 2023, available at https://www.hindustantimes.com/cities/others/lucknows-child-beggary-problem-uncovering-the-nexus-behind-the-child-beggary-gangs-and-the-need-for-collective-action-101688670908445.html (last visited on January 4, 2025).

[3] “Bharat Jain, world’s richest beggar: Here’s how he turned pennies into a fortune”, The Economic Times, December 08, 2024, available at https://economictimes.indiatimes.com/news/new-updates/meet-bharat-jain-worlds-richest-beggar-heres-how-he-turned-pennies-into-a-fortune/articleshow/116107060.cms (last visited on January 04, 2025).

[4] Ibid.

[5] Ibid.

[6] Press Information Bureau, Government of India, Ministry of Social Justice & Empowerment, Empowerment of Beggar Population Rehabilitation of Beggars, Press Information Bureau, Government of India, Ministry of Social Justice and Empowerment available at: https://pib.gov.in/Pressreleaseshare.aspx?PRID=1564072 (last visited on January 02, 2025).

[7] The Constitution of India, Schedule VII.

[8] IX, Constituent Assembly Debates, 863.

[9] Harsh Mander & Ors. v. Union of India, AIR 2018 DHC 188.

[10] Bibek Debroy, “Begging the question” , The Indian Express, February 14, 2019, available at https://indianexpress.com/article/opinion/columns/begging-the-question-5582752/ (last visited on January 01, 2025).

[11] Supra note 8; Suhail Rashid Bhat v. State of Jammu & Kashmir (2019) SCC J & K 869.

[12] Soibam Rocky Singh, “Delhi High Court decriminalises begging in the national capital”, The Hindu, August 8, 2018, available at https://www.thehindu.com/news/cities/Delhi/delhi-hc-decriminalises-begging-in-national-capital/article24631922.ece (last visited on January 4, 2025).

[13] The Indian Railways Act, 1989 (Act 24 of 1989).

[14] Railway act s. 144 (2).

[15] Railway act s. 144 (3).

[16] The Indian Penal Code, 1860 (Act 45 of 1860).

[17] Ibid.

[18] Bharatiya Nyaya Sanhita, 2023 (Act 45 of 2023), s. 270.

[19] Id., s. 139.

[20] Id., s. 143 (1).

[21] Id., s. 143 (2).

[22] Id., s. 143 (3).

[23] Id., s. 143 (4).

[24] Id., s. 139 (1) and (2).

[25] Juvenile Justice (Care & Protection of Children) Act, 2015 (Act 2 of 2016), s. 76(1).

[26] V.K. Ahuja (ed.), Human Rights: Contemporary Issues- A Festschrift in the honour of Professor Upendra Baxi 644 (Eastern Book Company, 2018).

[27] Ibid.

[28] Nayaaya, “You can be arrested sorry for looking poor in most Indian states, Union territories” Hindustan Times, April 1, 2017 available at https://www.hindustantimes.com/india-news/you-can-be-arrested-for-looking-poor-in-most-indian-states-and-union-territories/story-Tvssf0mLY7NnVFvApYy5XO.html (last visited on January 04, 2025).

[29] Bhushan M. Shinde and Manohar Samal, “Decriminalisation Anti-Begging Laws by the Implementation of Right to The City: An Indian Perspective” 2 Gujarat National Law University Student Review (2021).

[30] Charan Lal Sahu v. Union of India & Others, AIR 1990 SC 480.

[31] Kush Kalra v. Union of India (2021) 2 SCC 481.