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| HC strikes down J&K Prevention of Beggary Act 1960 and Rules 1964 | | |
Early Times Report
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 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 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.
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. (JNF) |
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