Via an order issued under Section 144 of the Code of Criminal Procedure on April 10, Pune police commissioner Amitesh Kumar has banned transgender persons from begging at traffic signals, private residences and other public spaces, hospitals, etc. These are spaces where transgender persons have traditionally sought alms on auspicious occasions as a means to eke out a livelihood in an ever-hostile world.
Kumar imposed a similar ban in Nagpur last year, when he was posted there. Initially temporary, its imposition has been extended every month. But the legality of such bans is constitutionally suspect and is an extension of the feudal, colonial mindset which used repressive methods to criminalise and penalise destitution and begging.
So, are the Pune and Nagpur bans legal?
Before such legality is examined, a few things need to be stated: First, such bans and criminalisation of begging further stigma. Second, while the elimination of begging is a worthy social goal, it must be achieved through supportive schemes, infrastructure, and access to affordable housing and shelters, education, and ensuring employment for transgender persons, rather than bans rooted in stigma.
At the outset, it is clear that since the ban has been imposed on transgender people alone, it is prima facie violative of Article 15 which prohibits discrimination against any citizen on grounds only of religion, race, caste, sex, place of birth.
Against existing precedent
But constitutional questions aside, two decisions by high courts warrant discussion. In a Public Interest Litigation (PIL) titled Suhail Rashid Bhat v State of Jammu and Kashmir (2019), the High Court of Jammu and Kashmir was faced with a constitutional challenge to the Jammu & Kashmir Prevention of Beggary Act, 1960. The HC held that the “prohibition of communicative activity by beggars in public spaces is violative of their rights guaranteed under Article 19(1)(d) of the Constitution and not sustainable”, and further held that such statutes which criminalise begging, actually criminalise poverty.
Secondly, in Harsh Mander v Union of India (2018), in the Delhi High Court, the challenge was to the Bombay Prevention of Begging Act, 1959, as extended to the Union Territory of Delhi (now the NCT of Delhi). The HC struck down the Act, holding that begging was not a crime. The HC held that the state can act to curb rackets of forced begging.
A few words by Justice Gita Mittal warrant some reiteration, “People beg on the streets not because they wish to, but because they need to. Begging is their last resort to subsistence, they have no other means to survive. Begging is a symptom of a disease, of the fact that the person has fallen through the socially created net. If we want to eradicate begging, artificial means to make beggars invisible will not suffice.”
Criminalising a marginalised group
The criminalisation of begging notwithstanding, there are also larger issues that warrant a brief discussion, namely the policing of transgender persons. Transgender persons have faced centuries of marginalisation, and legal and structural discrimination in access to public goods including education and employment. Even if they manage to get educated, they are unable to get a job, they are left reliant on begging and/or sex work. Both, the policing of transgender persons and begging, are rooted in colonial prejudices, which have no place in a constitutional democracy. The violence that transgender persons then face is magnified, and the prosecution of such acts of begging often becomes persecution.
The state must ensure the progressive realisation of social and economic rights, enshrined in Part IV of the Constitution of India, including providing a living wage, maintaining standards of human health, and in particular, striving to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people.
To watch the state acting against begging, without data on poverty and criminalisation through policing, is to bury one’s head in the sand. Emancipation schemes like scholarships and horizontal reservations for transgender persons and other welfare nets are the need of the hour.
The writer is a lawyer at the Supreme Court of India and a bioethicist
