HC strikes down J&K Prevention of Beggary Act, 1960 and Rules 1964

26/10/2019

JAMMU, OCT 25: A Division Bench of State High Court Comprising Chief Justice Gita Mittal and Justice Rajesh Bindal today in a landmark judgment strike-down the provisions of the Jammu & Kashmir Prevention of Beggary Act, 1960 and the Jammu & Kashmir Prevention of Beggary Rules, 1964, as they are unconstitutional.
DB also quashed the District Magistrate order dated 23rd May, 2018 whereby District Magistrate Srinagar banned begging in Srinagar."Division Bench observed that Before parting with this case, Poverty is human rights issue. The poor are entitled to a meaningful right of life which includes health, freedom, food, clothing, shelter, educational facilities, just and humane conditions of work and maternity benefits, privacy, dignity and liberty. It is primarily on account of deprivation of the
essentialities of life that poor people are compelled to resort to begging to make out their sustenance. DB further observed that criminalization of begging is the outcome of extremely prejudiced social constructs of presumption of criminality against the poor and baseless stereotypes, in ignorance of the extreme exclusion and disadvantages faced by the poor who are struggling to survive. The criminalization of begging which makes poverty an offence, is intended to remove poor people from public spaces, deprive them of the Constitutional guarantees of inclusiveness and pluralism and results in further deprivation to them.
DB further observed that unlike other legislations which clothe and empower authorities with drastic powers, the Jammu & Kashmir Prevention of Beggary Act, 1960, does not contain a "no faith" clause which protects officials against civil and criminal actions in respect of anything intended to be done or done pursuant to the provisions of law, suggesting legislative arrogance in that it does not expect any complaint against the authorities working this law in view of the powerless status of the targeted population.
DB further observed that section 3 of the enactment which makes begging, as defined under Section 2(a) of the Jammu & Kashmir Prevention of Beggary Act, 1960, an offence does not require any element of mens rea. Begging involves peaceful communication with strangers, verbal or non-verbal, whereby a beggar conveys a request for assistance. Such communicative activity is essentially part of the valuable right of freedom of speech and expression guaranteed to all under Article 19(1)(a) of the Constitution of India. The definition of begging under Section 2(a) of the enactment criminalizes people for what they are rather than what they do. The criminal sanction under Section 3 of the Act, 1960, on the communicative activity is content based and premised on presumption of criminality of the poor under Section 2(a)thereof. It results in banning of permissible activity in traditionally public forums and, therefore, essentially is subject to strict scrutiny. The definition of the offence is vague, overbroad and not narrowly tailored so as to achieve the object of the Act. The irredeemably broad and vague definition confers completely unchecked and untrammeled powers on the law enforcing authorities to apply the drastic powers to detain people. The definition of begging has the chilling effect on free speech and expression of the beggars. 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 for this reason as well.
DB further observed that the provisions of the Jammu & Kashmir Prevention of Beggary Act, 1960 and the Jammu & Kashmir Prevention of Beggary Rules, 1964, unreasonably, unfairly and arbitrarily invade the right of free speech and expression guaranteed under Article 19(1)(a) and (d) of the Constitution. The law also upsets the balance between the rights guaranteed and such reasonable restrictions, that Article 19(2) constitutionally permits, as may be imposed thereon. Such restrictions are not in the interest of public.
The restrictions imposed by the Jammu & Kashmir Prevention of Beggary Act, 1960 and the Jammu & Kashmir Prevention of Beggary Rules, 1964 and the curtailment of the right of freedom of speech and speech are also disproportionate to the object of the legislation and the situation sought to be addressed. The restrictions imposed are in a manner more intrusive than necessary. The restrictions are inappropriate and, for this reason as well, are not saved as permissible regulation under Article 19(2) of the Constitution of India. The classification under Section 2(a) of the Act based on no intelligible differentia is impermissible and invalid classifications. They do not have any nexus with the object of the legislation let alone a reasonable nexus thereto. The classification is arbitrary and irrational and fails to ensure equality before the law to the persons who are targeted resulting in their discrimination and, as such, is violative of rights of the beggars under Article 14 of the Constitution of India.
DB further observed that sections 3, 4, 5, 6, 7 and 8 of the Jammu & Kashmir Prevention of Beggary Act, 1960, and Rules 3, 4, 5, 6, 8 and 9 of the Jammu & Kashmir Prevention of Begging Rules, 1964, which make begging an offence (Section 3); prescribing a mandatory detention on the mere perception of the law enforcer (Section 4); mandatory incarceration even to establish innocence (Section 5); mandatory sentence upon a second and further conviction (Section 6); the nature of the summary inquiry (Section 5); punishment for escaping from the place of detention of persons who are compelled to beg in order to meet the basic needs for bare survival (Section 7) which is way below even the minimum level of sustenance; drastic powers vested in the institutions to which the perceived offenders are required to be committed; undignified treatment and procedures following the awarding of the sentence (Sections 8 and 9), are
arbitrary beyond the bounds of reason. Those provisions taking away the judicial discretion completely cannot be considered fair, just and reasonable. As such, these statutory provisions violate the rights guaranteed to a person under Article 14 of the Constitution of India and are held to be unconstitutional. Begging manifests the failure of the State to ensure basic entitlements of health, food, clothing, shelter, just and humane conditions of survival, opportunity to work which are all essential concomitants of Article 21 of the Constitution of India. The J&K Act of 1960 and the Rules of 1964 result in disproportionate infringement of the right to a meaningful life, dignity, privacy and liberty guaranteed under Article 21 of the Constitution of India of the poor.
Court further observed that Section 6(2) which provides for a mandatory detention upon a second conviction is held to be specifically inflicted withprocedural unfairness. It is an unreasonable restriction on the rights conferred by Article 19(1), is punitively outrageous, rehabilitatively counter-productive, unreasonable, arbitrary, unfair unjust and is voided as being also violative of Article 14 and the right to life conferred by Article 21.
DB further observed that the deprivations and compulsions imposed, envisaged and permitted under Rules under Rules 6, 8, and 9 of Rules of 1964 in the detention centers enable treating the detained person with utmost disdain and disrespect, violate his dignity, thus also eroding his self worth, are also an extreme intrusion on the privacy of the detained person and are an assault on the guarantee assured to all persons as in contained in Article 21 of the Constitution of India.
DB further observed that the prescription under Article 39 of the Constitution of India, has been completely overlooked while enacting and implementing the provisions of the Jammu & Kashmir Prevention of Beggary, Act, 1960 and the Jammu & Kashmir Prevention of Beggary Rules, 1964.
DB further observed that the State Government has failed to ensure discharge of the Constitutional mandate under Section 13 of the Constitution of India as well the Constitution of the Jammu & Kashmir State, to ensure the citizens of the State justice-social, economic and political and a society that promotes welfare of all; that Sections 19(a) and (d) which enjoins upon the State to make provisions for securing amongst others the right to work, adequate maintenance in the event of unemployment and other cases of undeserved want by providing social insurance;Section 23 which guarantees to the socially and educationally backward section of people special care, and, inter alia, protection against social injustice. The prescription under Article 39 of the Constitution of India and Part IV of Constitution of Jammu & Kashmir has been completely overlooked while enacting and implementing the provisions of the Jammu & Kashmir Prevention of Beggary Act, 1960, and the Rules framed thereunder.
As a result of the above, all prosecutions under the enactment against the persons alleged to have committed offences of begging would not survive. The power to do so would appropriately vest in the court seized of such prosecution. We are hereby confining ourselves to the present observation that the fate of the prosecutions, if any, has to abide by the present judgment and our observations and findings herein contained. The order dated 23rd May, 2018, passed by the District Magistrate, Srinagar, is based on no material at all, is premised on sheer prejudice and violates the rights of beggars guaranteed under Article 14, 19 and 21 of the Constitution of India. The same is legally unsustainable.
In the result, we declare that the provisions of the Jammu & Kashmir Prevention of Beggary Act, 1960 and the Jammu & Kashmir Prevention of Beggary Rules, 1964, are unconstitutional and hereby strike them down.
As a result of the above, all prosecutions under the enactment against the persons alleged to have committed offences of begging would not survive. The power to do so would appropriately vest in the court seized of such prosecution.
We are hereby confining ourselves to the present observation that the fate of the prosecutions, if any, has to abide by the present judgment and our observations and findings herein contained. The impugned order dated 23rd May, 2018, passed by the District Magistrate, Srinagar, is hereby quashed. JNF

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