With Article 370 being revoked and the surprising number of independents who
swept the Block Development Elections in Jammu and Kashmir, the valley has been
a hot topic of discourse throughout the nation in the past few days.
However, in
the midst of all of this chaos and mayhem, the Jammu and Kashmir High Court,
this Friday, quietly delivered a judgement that despite not seeing the limelight
of media attention, proves to be one that seems to take note of past occurrences
and seeks to improve upon the same and delve into the philosophy of law.
It can
serve as a reminder to the Indian Judiciary that in order to protect the rights
of the aggrieved individual, one need not go beyond the scope of the powers
provided to them and that the current legal framework provides an environment
conducive enough for change to be brought about.
Contesting anti-begging laws in court is no new feat. The Anti-Beggary Act first
enacted in 1958 in Bombay which then went on to apply to twenty states and two
union territories has been brought to the courts before; once in 1993 before the
Bombay High Court and more notably in 2018 when the matter was brought before
the Delhi High Court.
These are the ways in which the J & K court has improved upon the judgement of
the Delhi High Court and has taken the steps that the Delhi court had failed to
take an account of:
Article 14.
While the Delhi High Court felt that it was arbitrary toinclude ‘homeless
individuals’ within the definition of beggars; the J&K court found it not only a
cause of concern that there was a problem of classification, but also sought to
combat the idea espoused by the Act.
It correctly acknowledges the colonial undertones that influence the Jammu and
Kashmir Prevention of Beggary Act,1960 and in its conclusion also identifies how
it is the faulty perception of society that had led to this Act. It states that
the Act presumes based on no material whatsoever that beggars render the
District unfriendly and also that begging is a massive nuisance for the general
public. It further goes on to say that these presumptions and assumptions are
violative of Article 14 which guarantees to all equality before law as it is
based on a prejudiced notion that beggars are a nuisance per se.
Article 19(1)(a)
Article 19 (1)(a) guarantees to all citizens the right to freedom of speech and
expression. While the Delhi High Court correctly identified the act of
soliciting alms as an act which required communication and went to state that
‘People in this stratum do not have access to basic necessities such as food,
shelter and health, and in addition criminalizing them denies them the basic
fundamental right to communicate and seek to deal with their plight’, thereby
acknowledging the fact that the interest of individual under Article 19(1)(a)
gets affected; it shies away from directly stating and linking this inalienable
right with Article 19(1)(a) and hence unconstitutional on the ground of being
contrary to the provision of Article 19.
The J & K High Court however, goes on to state that the act of criminalizing
begging is in clear contravention of Article 19(1)(a) and hence, provides the
court with grounds sufficient, to strike it down.
It adopts a strong and
decisive move to render the provision void and uses Article 19 as the basis to
do so. 385 (IX) of the judgment reads:
“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 to free speech and expression guaranteed under
Article 19(1)(a).â€
The Lacunae
The Delhi High Court verdict remains vocal about how it is the responsibility of
the Government to ensure that remains no poverty and the criminalization of the
same is a sign of ignorance to the ground realities that exist in society. It
even states that rendering invisible the poor does not solve the issue of
poverty and that those who beg do it as a method of keeping body and soul
together. Lastly, it relied heavily on implementation factors such as how this
was not the right way to ensure that poverty is solved without ever questioning
whether the Act sought to solve the issue of poverty in the first place.
While this sentiment is echoed time and again in J&K court’s judgment, it goes a
step further and correctly identifies what the Delhi Court had failed to; the
legislative intent of the Act was not to eradicate begging but to actually
eradicate the people who used to beg due to no other reason other than it being
perceived as a source of ‘public nuisance’. A line of the Judgement reads, “The
definition of begging under Section 2(a) of the enactment criminalize people for
what they are instead of what they do.â€
It confronts the very idea on which the Act was premised on and reveals it to be
one of no substantial basis. 373 of the Conclusion reads: “At the face of it,
the order is premised on no specific material. It presumes that beggars render
the District unfriendly for citizens without any basis, it assumes also that
begging is a massive nuisance for the general public. We have found these
presumptions, assumptions and prohibitions imposed in the order dated 23rd May,
2018, violative of the rights guaranteed under Article 14, 19 and 21 of the
Constitution of India.â€
Conclusion:
While the decision taken by the Delhi Court in Harsh Mander v. UOI was a step in
the right direction and an impactful and novel judgment in its own right; it
left some questions unanswered and seemed to lack the ability to provide cogent
reasoning for the conclusions it draws. It seems to rely heavily on
implementation infeasibilities to be able to render provisions of the Act void
and thus in many instances fails to fulfil its primary aim of ascertaining
constitutional validity. While it seemed to have touched all the right reasons
and correct logical conclusions, it failed to substantiate on the same.
The Jammu and Kashmir High Court has undoubtedly drawn a lot of inspiration from
the judgment pronounced in Harsh Mander v. UOI, but what could have been a
20-page nod to the Delhi Court’s Judgement, instead turns out to be a
fully-fledged 196-page judgment that seems to compensate for the lacunae in the
Delhi Judgment and seems to attack a similar Act on a completely constitutional
front.
Suhail Rashid Bhat v. State of Jammu and Kashmir may have the same effect
as Harsh Mander had in the state of Delhi i.e. the decriminalization of begging
but the way in which it is achieved is different and should remind courts all
over the country that the process of delivering justice is not just about the
outcome but also the methods used to deliver it and the cogent reasoning given
to justify the same. It also becomes interesting to note that honourable Justice
Gita Mittal has served as a judge in both of these cases and seems to have taken
the criticism her judgment received in her stride in order to have produced a
true masterpiece in the case of Suhail v. State of J&K.
Written By- Shikhar Yadav And Aditya Pattanayak
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