The interplay approach between law and human rights in the former channelizing a free and secure human life is often reflected in the judicial opinions rendered by the Indian judiciary. The ratio decidendi laid down by the Hon'ble High Court of Delhi in the recent landmark judgment of Harsh Mander v. Union of India 1 (in short 'Judgment'), settles the legal position that begging shall not be criminalized within a State territory. This article analyses the aforesaid Judgment in light of the constitutional principles and the rational approach towards striking down the provisions violating the human rights.
VERDICT- UPHOLDING CONSTITUTIONAL PRINCIPLES
In its Judgment2, the Hon'ble High Court struck down Sections 4 to 29 except Section 11 of the Bombay Prevention of Begging Act, 1959 (hereinafter referred to as 'Act') which had been adopted by the State of Delhi in the year 1960. Section 2(1)(d) and section 4(1) of the Act provides a clear picture of the issue at hand:
2(1)(d): Begging means 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 exist soliciting or receiving alms;
4. Power of require person found begging to appear before court. - (1) Any police officer, or other person authorized in this behalf in accordance with rules made by the [Chief Commissioner] may arrest without a warrant any person who is found begging.
A perusal of the aforementioned provisions indicate that the legislative intent does not manifest any reasonable classification in deciding as to what constitutes begging and the power to arrest any person being arbitrary, violates the fundamental rights guaranteed under Article 14 and 19 of the Indian Constitution (hereinafter referred to as 'Constitution').
Citing the landmark judgment of Shayara Bano v. Union of India3 in which the Hon'ble Supreme Court of India noted that a legislation can be nullified on the grounds of violation of Article 14, if it appears to be manifestly arbitrary. Thus, the Judgment highlights that merely because a person is likely to solicit alms doesn't mean that he shall be classified under the scope of begging. The Judgment also clarifies that the freedom of speech and expression, being the fundamental right guaranteed under Article 19 of the Constitution, gets infringed when there is an unreasonable restriction on the exercise of such right. An unquestionable consequence of this ruling will be grant of right of freedom of expression to the people involved in the begging activity and the subjective reasoning for classification shall not be a reason to classify a person performing the begging activity.
Another aspect of the Constitution, which the Judgment hinges upon moderately is the State's obligation to promote welfare of the people by securing and protecting a social order, thereby maintaining social security within the State. A conjoint reading of Article 38 & 39 of the Constitution of India yields that the State shall put all measures to provide a safe and secure livelihood for people and since these directive principles are regarded as the soul of the constitution, it becomes onerous on the State to ensure its role as a 'welfare state'.4 Thus, by striking down the aforesaid provisions, the State shall be in a better position to uphold the social security as the arbitrariness in the law stands eradicated as the Judgment in Paragraph 28 & 33 highlights that the State has miserably failed to provide a decent life to its citizens and in fulfilling its directives under the Constitution.
ADOPTING RATIONAL APPROACHLANDMARK PRECEDENT
The Judgment analysed the root problem of begging, it being poverty, which as per the Hon'ble Court, cannot be solved merely by adopting an artificial means and thus criminalization would be a wrong approach to eradicate such a problem. Though, the Division Bench has left it open for the legislature to think out a clear factual basis in order to criminalize forced beggary.
The Judgement becomes significant in light of the Courts recognising the inter-disciplinary approach between law and human rights. Moreover, the arbitrariness in the legislation gets ruled out through the ruling, which makes sets a precedent for a free and fair abidance of the laws.
1 W.P. (C) 10498/2009 and W.P. (C) 1630/2015 (Delivered on August 8, 2018)
3 (2017) 9 SCC 1
4 Charu Khurana v. Union of India, AIR 2015 SC 839
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.