Friday, April 24, 2009

On Begging

The case of Ram Lakhan v State 137 (2007) DLT 173 on begging is a lesson in stupid laws and sensitive adjudication. Justice Badar Durrez Ahmad of the Delhi High Court deserves commendation. The discussion on the (lack of) differences between duress and necessity is fascinating:

... while in the case of exploitation and compulsion by the ring leaders of a 'begging racket', the "beggar" who begs under compulsion of fear for bodily harm from them would have the defense of duress, where the "beggar" takes to begging compelled by poverty and hunger, he would be entitled to invoke the defense of necessity. The common feature of both defenses being the element of involuntariness or, shall I say, lack of legitimate choices. It is the absence of legal alternatives that provides the defense of duress or necessity. This is aptly described by Dickson J giving the majority opinion of the Supreme Court of Canada in Perka v. The Queen [1984] 2 SCR 232 in the following manner:

Given that the accused had to act, could he nevertheless realistically have acted to avoid the peril or present the harm, without breaking the law? Was there a legal way out? I think this is what Bracton means when he lists "necessity" as a defense, providing the wrongful act was not "avoidable". The question to be asked is whether the agent had any real choice: could he have done otherwise? If there is a reasonable legal alternative to disobeying the law, then the decision to disobey becomes a voluntary one, impelled by some consideration beyond the dictates of "necessity" and human instincts.


This mirrors the famous philosophical debate on liberty: Isaiah Berlin's claim that negative liberty and positive liberty are distinct concepts, whereas people like Joseph Raz, Amartya Sen and Martha Nussbaum insisting that true liberty must include positive liberty (i.e. not merely the absence of duress/coercion, but the ability to do things, or in Raz's words, having 'an adequate range of valuable options').

The discussion on begging as protected expression under Article 19(1)(a) is also fascinating. Usha Ramanathan discusses our jurisprudence around begging laws in this excellent piece. (Hat-tip t0 Siddhartha and Srinivasan)

10 comments:

Srinivasan Ramani said...

Thanks for mentioning this. I think this article by Usha Ramanathan in the EPW is very relevant for the discussion of this post.

http://epw.in/epw//uploads/articles/12817.pdf

Unfortunately the article is in the archive and one has to go through the payment gateway for the same.

Suresh said...

From the judgment:

However, where the person has a defense of duress or necessity, the person ought not to be detained. As pointed out above, whether the specific defense of duress or necessity is taken by the beggar or not, it is an obligation on the Court to satisfy itself that the person did not have such a defense.Isn't this placing a huge burden on the courts? How does the court go about establishing that the beggar does *not* have a defence of necessity? I'm not questioning the good intentions of the court but I am concerned that such jurisprudence will contribute towards slowing the process of justice delivery even more.

Secondly, in Hinduism, there is a tradition of ooncha vriti which is accepting charity only for survival. If I remember rightly, once a person has taken up sanyasa (after formally doing his own death ceremony signifying his renunciation of the world), he is supposed to survive only by begging. (I know very few take up sanyasa but some still do.) Just curious, how does this square with the anti-begging laws? Anyone know?

If possible, could you point me to any work on begging in India? In particular, I am interested in questions like who typically begs, what is their typical income and so on. It seems to me that we know a lot about anti-begging laws but little about the beggars themselves. Perhaps we don't care about the beggars so long as they don't "interfere" with us?

Anyway, thanks for an interesting post.

tarunabh said...

dear suresh
you raise a pertinent issue. i suppose in begging cases, the likelihood of necessity defence being present is so high, and the accused so resourceless, that one may justify putting the burden on the court (but not extending the rule to all offences). but i cannot understand why we must criminalise begging to begin with.
the religion issue is also fascinating, even buddhist monks are supposed to live only on alms. it will be very interesting if this issue is raised in courts. it also reminds me of the jain opposition to the offence of attempt to commit suicide. but seriously, someone needs to sit with the IPC and all our criminal laws with a red marker and scratch out most of these counter-producitve laws. it is shameful we still have them.
no idea of any sociological reserch on beggers generally, but this PUCL report on hijras has a few references to begging.

Suresh said...

Dear Tarunabh,

Thanks for your response. With regard to criminalising begging, one interesting distinction seems to be between "passive" and "aggressive" begging. A google search, for instance, shows that Ireland in recent years has banned "aggressive" begging. I am not entirely sure of the distinction but I would agree that "passive" begging (however defined) does not warrant being treated as a crime.

"Aggressive" begging, by the way, is not unheard of in India. One tactic, I learned, used by some snake charmers in Delhi is to thrust a cobra in someone's face and demand money. The "attack" is often so startling that apparently, "victims" hand over quite large sums. A friend of mine, had a cobra thrust in her face while getting down from an autorickshaw and ended up handing over Rs. 500/-. Hijras are also known to be quite aggressive.

With regard to a sociological study of beggars in India, I did manage to locate a 2008 book by Mohammed Rafiuddin, Beggars in Hyderabad. A report on the book is available at

http://www.rediff.com/money/2008/oct/10beg.htm

Sushant said...

It seems like begging is crime under

Section 5(5) of the Bombay Prevention of Begging Act, 1959

but not under most central laws:
http://indiankanoon.org/search/?formInput=begging+doctypes:laws

begging in railway carriage is crime under Section 144 in The Railways Act, 1989
http://indiankanoon.org/doc/372199/

Srinivasan Ramani said...

@ Suresh,

There is begging and there is extortion. What constitutes actions by the cobra-thrusters and some inter-sexual people is not quite begging but more extortion because of the threat of "violence". I don't think there is any merit in the categorising of "begging" into "aggressive" and "passive".

What Usha Ramanathan's piece tells us is that even "loitering" or "ostensible poverty" has been termed as a crime using beggary laws. That is gross injustice heaped on a people already suffering from structural forms of injustice.

Anshuman said...

So the judge apparently conducted a sociological survey of begging in India and came up with 3 categories of beggars, ALL ON HIS OWN!! The three categories and their treatment according to the Hon. was a) The 'lazy' ones who apparently will be sent to a Home; b)Those who beg due to duress or necessity and will not be sent to a Home (need a more objective criteria for defining the terms); c) Drug addicts etc who will be sent for rehab. Did he get all this from watching Traffic Signal by Madhur Bhandarkar? Er...your Lordship, can we get an expert comittee on this?? Because every beggar will be crying for necessity and duress when arrested.

Suresh said...

There is begging and there is extortion. What constitutes actions by the cobra-thrusters and some inter-sexual people is not quite begging but more extortion because of the threat of "violence". I don't think there is any merit in the categorising of "begging" into "aggressive" and "passive".I guess there is a gray zone between extortion and begging which is the area occupied by aggressive begging. I suppose that is why many countries and localities have laws pertaining to "aggressive begging" - a google search throws up lots of links. One definition of "aggressive begging" seems to be "to beg with intent to intimidate another person into giving money or goods."

I can see that this definition is very close to extortion. However, from what I can gather through google, extortion is a serious crime - it is a felony in the US and also seems to be so in the UK. I can't find the Indian law in this regard but I assume it's similar. Now, I think most would agree that the snake charmers and hijras are practicing extortion, but I also think that most of us would not put their crimes in the same category as blackmail or kidnap. That might be a possible rationale for distinguishing "aggressive begging" from extortion. I am not a lawyer, so please excuse me if I'm wrong.

Second, I don't know why you think that I support begging being treated as a crime. I don't and I did clarify it in my previous response to Tarunabh.

K.V.DHANANJAY said...

Actually, this Judge, Justice Badar Durrez Ahmad is not just a wonderful humanitarian but demonstrates remarkable insight into the interpretation of statutes and of the Constitutional law. This is truly, heartening indeed.

Suresh said...

Hi,

I found this through a comment on Kafila. From the Hindustan Times, 5 May, 2009:

In a major step to rid the city’s prime areas of beggars ahead of Commonwealth Games 2010, Delhi Police has declared Connaught Place, India Gate, major traffic junctions, ISBTs and railway stations as “zero-tolerance zones”.

Within two months, special anti-begging squads will be deployed in these areas to round up beggars. Those caught will be produced in a mobile court, to be functional from July 1. Habitual beggars will be arrested and sent to beggar homes while those arrested for the first time will be penalised and issued warnings.

Mukta Gupta, counsel for the National Capital Territory government and Delhi Police stated this on Tuesday before a division bench headed by Justices B.D. Ahmed and P.K. Bhasin, who are hearing a PIL on begging. Gupta said the Lt Governor has approved setting up of two mobile courts for on the spot disposal of cases.

“Though all plans are ready, these will be implemented only after the polls as the code of conduct is in force now,” Delhi government sources said.
The actual report is available at

http://tinyurl.com/qk2466