By Amritananda Chakravorty
In recent times, one often wonders how does a Constitutional Court like the Jammu & Kashmir High Court function in a State under complete lockdown, since last 92 days. It has been widely reported that the former President of J&K High Court Bar Association, Nazir Ahmed Ronga, and other office bearers have been detained by the State administration under the Public Safety Act, and lawyers have been on strike since then. Out of the sanctioned 17 judges for the High Court, the Court presently only has 9 judges on the Bench, and amongst them, only two judges are hearing the habeas corpus petitions, with more than 250 petitions being filed, owing to arbitrary detention of more than 4000 persons in the State.
In most of the cases, the Court is constrained to adjourn the matters, owing to lack of lawyers appearing in the Court as well as total lockdown of the State, with means of communications and transport still heavily curtailed. Due to lack of internet facility, most of the High Court registry is non-functional, and one cannot even imagine how families of detained persons are able to even file habeas petitions in the Court.
In midst of this pall and gloom, one judgment from High Court has caused cheer amongst lawyers and jurists inside and outside the State, which relates to decriminalisation of beggary in the State of J&K, penned by Chief Justice Gita Mittal. Though the arguments in the case had concluded on 4th June, 2019, the judgment was delivered only on 25th October, 2019. One could argue that with not much existing work happening in the High Court, the judges have all the time in the world to author long pending judgments, but let us not be so cynical. The Court was considering a petition filed by Mr. Suhail Rashid Bhat, a young lawyer, and permanent resident of J&K, who had challenged the validity of Jammu &Kashmir Prevention of Beggary Act, 1960, and Jammu& Kashmir Prevention of Beggary Rules, 1964 on the ground of being violative of the fundamental rights guaranteed under Articles 14, 19, 20, 21 and 22 of the Constitution. The Petitioner also challenged a notification of May, 2016, by District Magistrate, Srinagar prohibiting begging in the city of Srinagar, since it was a tourist season, and beggars allegedly caused nuisance to the tourists.
The High Court, while analysing the Petitioner’s contentions, first examined the application of fundamental rights to the residents of J&K. Relying on Section 10 of the Constitution of J&K, which provides that the J&K permanent residents shall be entitled to all the fundamental rights guaranteed under the Constitution of India. The High Court reiterated that the Part III of the Constitution is equally applicable to the permanent residents of J&K. Examining the historical roots of the Anti-Beggary laws, the Court noted the colonial origins of these laws, and how these laws were used to target the most marginalised populations.
The Court thereafter analysed the reasons for begging, and found that most of the begging acts are rooted in abject and chronic poverty. The High Court noted that “in India, the practice of begging is inextricably linked to poverty. Other means could be unemployment, illiteracy, ignorance or the pressure on public resources on account of increasing population, unfair distribution of wealth, homelessness, problem of social structures and economic mismanagement, lack of work opportunities, decline in public assistance, the structure and administration of government support, lack of affordable housing, addiction disorders and mental illness. It includes those who have no access to education, or social protection, may be victims of discrimination based on caste and ethnicity, invariably would be landless, facing may be physical and mental challenges as well as isolation.
Unlike the common perception, or for that matter, the legislative presumption, people thus beg on the street not because they desire to do so, but because of the ultimate need. The presumption against the beggars (of laziness etc) necessarily overlooks the fact that it is impossible for even educated and trained people to always find employment. Begging is their last resort to procure subsistence, as they have no other means to survive. Beggary is a manifestation of the fact that the person has fallen through the socially created net. It is evidence of the fact that the State has failed to ensure that all citizens have even the basic facilities.”
The Court then traversed the whole set of cases from foreign jurisdictions, including those on vagrancy laws, and looked at legislations that have decriminalised begging completely, and examined the text of the J&K legislation. The Court found that begging amounted to exercise of the right to freedom of speech and expression, and a total prohibition of the same violated the freedoms guaranteed under Article 19(1)(a), and is not saved by the restrictions mentioned in Article 19(2). The Court further held that the impugned law did not distinguish between voluntary and involuntary begging, and even the classification between persons begging for themselves, and those seeking alms for others has no intelligible differentia or rational nexus with the object sought to be achieved. Accordingly, the law was found to be arbitrary, irrational and discriminatory, thereby violating Article 14 of the Constitution.
The Court further noted that the legislation was biased against poverty, and is underscored by an assumption of potential criminality of those faced with economic hardships, and having no means of sustenance. In fact, the State, instead of providing support to those economically marginalised, was busy criminalising poor people, and exposing them to criminal prosecution, and punishment, which results in further deprivation and social exclusion. In sum, the High Court found several provisions of the Act and the Rules as unconstitutional, and violative of Articles 14, 19 and 21 of the Constitution.
Overall, the judgment is very comprehensive and thorough analysis of the jurisprudence on begging and vagrancy laws from all over the world, as well as infused with a sense of compassion and empathy for the impoverished persons involved in the act of begging. It’s an irony that the same compassion is not being shown to other issues, including the critical issue of detention of thousands of Kashmiris under the PSA for no justifiable reason. The High Court cannot apply the Constitutional rights in one context, and not in the other context, especially relating to protection of life and liberty of thousands of persons in J&K. (IPA Service)
The Writer is a Delhi based lawyer