Anti-Begging Laws: An Attack on Freedom of Speech?

By Akshat Bhushan

Introduction

In India, there are twenty states and two union territories that have enacted anti-beggary laws, criminalising the act of begging.[1] A 2018 Delhi High Court order struck down certain provisions of the Bombay Prevention of Begging Act, 1959 (that was extended to the union territory of Delhi) which criminalised involuntary begging on grounds that it was in violation of Article 14 and Article 21 of the Indian Constitution.[2] The Jammu and Kashmir High Court went a step further with a judgment dated 25^th October, 2019 and declared the Jammu and Kashmir Prevention of Beggary Act, 1960 to be ultra vires as it was found to be in contravention of Articles 14, 19(1)(a) and 21 of the Indian Constitution.[3]  For a long time the anti-begging statutes have been subject to a number of criticisms. In this piece an attempt has been made to specifically look at anti-begging laws in light of article 19(1)(a) of the Indian Constitution which grants every citizen freedom of speech and expression subject to the exceptions mentioned in Article 19(2).

The First Amendment of the U.S Constitution which grants freedom of speech and press is very similar to Article 19(1)(a) of the Indian Constitution in almost all respects. It is for this reason that most landmark judgments of the Supreme Court of India have referred to American case laws on matters related to Article 19(1)(a).[4]

Begging is a form of Speech

It has always been a daunting task for the Courts to ascertain whether a particular act can be protected by the First Amendment. Therefore, the Supreme Court of the U.S. came up with a two-fold test known as the Spence Test to determine if a conduct is covered by the protections of free speech granted under the First Amendment. The Spence test looks at a) whether the person performing the impugned activity did it with an intention to communicate a ‘particularised message’ b) whether the activity was such that the observer might perceive it to fall within the boundaries of ‘speech’ under First Amendment.[5]  It has been argued that a beggar does not communicate any ‘particularised message’ because his primary intention is to obtain money, the communication of his plight is only incidental to it.[6] It is true that the sole objective of beggars is to solicit alms but in doing so they expressly or impliedly try to impress upon the observer their plight so that the observer pitying their deplorable condition may give in to their request. Therefore, whatever might be the final objective, the beggars do try to convey a specific intended message to the observer.

Rationale for protecting Begging as free speech

There are three extremely significant values namely enlightenment, democratic governance and self-realisation, which provide the rationale for protection of a particular conduct under the First Amendment. [7]

The act of begging is instrumental in not only enlightening the individual but also the society as a whole. A beggar enlightens the individual that there still exists a section of the society which is deprived of the basic necessities of life. When a beggar communicates his plight, he may cause the observer to introspect with respect to the responsibility he owes to other needy members of the society. When leaders like former U.S President Ronald Reagan remark that poverty does not exist in the U.S,[8]  then many beggars loitering on the streets give a reality check to these leaders.  They provide the right perspective to the prevalent social discourse.  The fact that the speaker is conveying his plight to obtain money does not make his speech unenlightening.[9] Right to speech also warrants the right to obtain as well as spread information on matters of public importance.[10]

A democratic society can thrive only when people are free to express their thoughts. Democratic governance requires the people to have the liberty to convey all facts and issues concerning them to the decision makers in the democratic order. Begging as an act brings out the issues related to the inability of the present social order to cater to the basic needs of people.[11] This keeps the decision makers in sync with the social realities of hunger, poverty and deprivation and facilitates a more informed decision-making.

Self-realisation may be described as the right of a person to voice his opinions on issues that are of material significance for his survival. The beggar tries to convey a very fundamental message i.e. he is in dire need of financial and material help due to his financial stringency.[12] Self-realisation value of speech also encourages the promotion of artistic qualities within a person.[13] Instead many anti-begging acts impose a strict restriction on singing and dancing in public places with an intention to receive money from the observers.[14] Anti-begging enactments put the beggar in fear of prosecution and detention thereby deterring him from making his voice heard on issues that are of great significance to him. Therefore, prohibition of begging seriously attacks the self-realisation value of the activity of begging.  

The Supreme Court of Massachusetts while hearing a case related to the constitutionality of Chapter 272, Section 66[15] of the anti-begging law named General Laws passed by the State Legislature of Massachusetts held that begging as long as it is peaceful is a form of speech that is protected under the First Amendment.[16] In fact, many Courts of Appeal that have categorically struck down statutes prohibiting or criminalising begging for being in violation of the First Amendment.[17]

The criminalisation of begging is not a reasonable restriction under Article 19(2)

The only differences between the First Amendment to the U.S constitution and Article 19(1)(a) of the Indian Constitution are the exceptions that it provides to freedom of speech and expression. In the U.S., freedom of speech can be restricted only if it is an obstacle to an important governmental or social objective.[18] However in India the grounds for restricting freedom of speech are more specific and provided explicitly in Article 19(2).[19] Therefore, freedom of speech and expression cannot be restricted on any grounds other than those mentioned in Article 19(2).

The Delhi Government as well as the Jammu and Kashmir Government submitted before their respective High Courts that restrictions had been imposed on the activity of begging to deal with the menace of begging rackets carried out by organised groups.[20] Article 19(2) expressly mentions that freedom of speech and expression can be curbed ‘in the interest of public order’. Therefore, the pertinent question which arises at this point is that can begging be criminalised ‘in the interest of public order’?

In the Kameshwar Prasad v State of Bihar[21], the Government had imposed a blanket ban on all demonstrations within the State. The Supreme Court held that if the ban had been imposed only on those demonstrations that threatened public order, then the ban could have been protected by Article 19(2) but such a blanket ban is not justified. Therefore, even if the Government wanted to tackle the criminal groups who indulge in using children for the objective of begging, then the Government should have only prohibited forced begging. But these anti-begging enactments restrict begging in all its forms.

In Bennet Coleman & Co. v Union of India[22], it was submitted by the Government that by introducing their policy of newsprint quota the intention was to regulate the import of the concerned commodity and not to curb free speech. However, the Supreme Court held that when a legislation or Government Policy is to be scrutinised in light of Article 19(1)(a) what matters is not the subject matter of the enactment but the effect that the legislation would have on free speech. As a consequence of this the policy was declared unconstitutional. Even though the anti- begging enactments or their preamble in itself mentions various other reasons for the enactments of these laws but the direct and inevitable consequence of it is that it completely deprives the beggar of his right to convey information about his plight thereby violating Article 19(1)(a).

The administrative discretion to regulate the freedom of speech and expression should not be so wide that it becomes arbitrary.[23] Many anti-begging statutes give a wide discretion to the District Magistrate or State Governments without proper guidelines to allow some people to solicit alms or obtain money.[24] This can lead to abuse of power by authorities thereby severely jeopardising the rights conferred under Article 19(1)(a).

Anti-begging enactments are antithetical to the idea of freedom of speech and expression guaranteed under Article 19(1)(a). Moreover, it can definitely not be termed as ‘reasonable restriction’ under Article 19(2). Therefore any law which is in contravention of any Fundamental Right guaranteed in Part III should be struck down as null and void.[25]

Prohibition of begging is a callous attack and gross violation of the Fundamental Rights of those who belong to the most vulnerable, marginalised and unattended section of the society. These anti-begging enactments interfere with one of the most basic human rights which any individual could possess. They are  a blot on any country which describes itself as a ‘modern democracy’ and therefore it is high time that modern liberal democracies like India completely do away with these draconian statutes.

The author is a first year student, pursuing their law degree from the Hidayatullah National Law University, Raipur.

---

[1] Team Nyaya, In many Indian states and union territories you can be arrested just for looking poor, Scroll.in, (Mar 01, 2020, 7:30 PM) https://scroll.in/article/833471/in-many-indian-states-and-union-territories-you-can-be-arrested-just-for-looking-poor.

[2] Harsh Mander v. Union of India, 2018 SCC OnLine Del 10427.

[3] Suhail Rashid Bhatt v. State of Jammu and Kashmir and Ors., 2019 SCC OnLine J&K 869.

[4] Shreya Singhal v. Union of India, (2015) 5 SCC 1.

[5]Spence v. Washington, 418 U.S. 405 (1974).

[6]Patrick B. Gonzales, Robert B. Kuehn, Begging: Free Speech or Poor Conduct, 5(2) Journal of Civil Rights and Economic Development, 239, 246-247 (1990) .

[7]Martin H Redish, The Value of Free Speech, 130 University of Pennsylvania Law Review, 591, 591 (1982) .

[8] Lou Cannon, Reagan Cites ‘Choice’ by Homeless, Washington Post, Dec 23 1988 at A8.

[9] Virgina State Bd. Of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 761 (1976).

[10] Vol no. 1, M.P Jain et al., Indian Constitutional Law 1433(6^th ed LexisNexis, 2013).

[11] Helen Hershkoff and Adam S. Cohen, Begging to Differ: The First Amendment and the Right to Beg, 104 Harvard Law Review, 896, 901 (1991).

[12] Id at 903.

[13] Subhash C Kashyap, Constitutional Law of India, 513 (2^nd ed LexisNexis Universal Law Publishing 2015) ; See Usha Uthup v. State of W.B, AIR 1984 Cal 268.

[14] Bombay Prevention of Begging Act, Section 2 (1959); Karnataka Prohibition of Beggary Act, Section 2(a)(1975) ; The Telangana Prevention of Begging Act, Section 2(ii) (1977).

[15]Persons wandering abroad and begging, or who go about from door to door in public or private ways, areas to which the general public is invited, or in other public places for the purposes of begging or to receive alms, and who are not licensed or who do not come within the description of tramps as contained in section sixty-three, shall be deemed to be vagrants and may be punished by imprisonment for not more than six months in the house of correction.

[16] Craig Benefit v. City of Cambridge & Others, 424 Mass. 918 (1997).

[17] James Speet and Ernest Sims v. Bill Schuette, No. 12-2213 ;  Jennifer Loper v. The New York City Police Department, 1993 U.S App. LEXIS 19725.           

[18] Shreya Singhal v. Union of India, (2015) 5 SCC 1.

[19] (2) Nothing in sub clause (a) of clause (1) shall affect the  operation of any existing law, or prevent the state from making any law, in so far as such law imposes operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, security if the State, friendly relations with foreign State, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.

[20] See Harsh Mander v. Union of India, 2018 SCC OnLine Del 10427; Suhail Rashid Bhatt v. State of Jammu and Kashmir and Ors., 2019 SCC OnLine J&K 869.

[21]Kameshwar Prasad v. State of Bihar, AIR 1962 SC 1166.

[22] Bennet Coleman and Co v. Union of India, AIR 1973 SC 106.

[23] Jain et al., supra 1474.

[24] Bombay Prevention of Begging Act, Section 2, (1959).

[25] The Constitution of India, Article 13, (1949).