CONTEXT The Supreme Court has recently issued notice on a writ petition on the condition that the petition’s prayer seeking a direction to “restrain beggars and vagabonds/homeless from begging on traffic junctions, markets and public places to avoid the spread of COVID-19 pandemic in all the States and Union Territories across India” be modified to focus on the rehabilitation of those forced to beg for a living.
ANALYSING THE JUDGEMENT
- In issuing such notice the Supreme Court has rightly observed that being compelled to beg was a socio-economic issue that could not be remedied by directing begging restrictions.
- Such economic issues instead require a welfare response from the state.
- Thus, the order can be a useful guide to making and implementing criminal law.
WHAT SHOULD BE CRIMINALISED?
Considering welfare response:
- When decisions about criminalisation are being taken by the legislature, an important point of consideration should be whether the issue sought to be addressed might be better suited to a welfare response.
- There are several examples of welfare issues against which the coercive force of criminal law has inappropriately been deployed:
- In Harsh Mander & Anr. v. Union of India (2018), the Supreme Court had noted that the criminalisation of beggary did not address the structural deprivations that drove people to beg.
- Similarly, the criminalisation of triple talaq by the Muslim Women (Protection of Rights on Marriage) Act, 2019, purportedly to ‘protect’ Muslim women, does nothing to address the structural gender inequality, social stigma, poor employment options, and lack of state support which actually cause the deprivations associated with divorce (and not just with triple talaq).
Creation of better employment venues:
- Socio-economic marginalisation and poverty may frequently make people susceptible to exploitation, whether through poorly paid/unpaid labour, trafficking and sex work, or indeed, begging.
- Hence, it is not only important to ensure that criminal liability is imposed on the exploitators, but also to create alternative, well-paying and dignified employment.
- This is essential not only to prevent exploitative practices, but also to rehabilitate those who have been rescued from such practices.
- Such employment can be made accessible by imparting requisite education and skills, and by providing the social security nets.
- For example- to ‘rescue’ a sex worker is meaningless unless they have a legitimate way out of such work, an option that is materially (not morally) better for them.
- Focusing on the welfare aspect of exploitative practices sheds light on structural forms of impoverishment, and on who is most likely to be exploited as a result.
- Such a focus also exposes the liability of the state and society in creating the vulnerabilities of those prone to exploitation.
- This recognition is reflected in the apt remarks of the High Court in Suhail Rashid Bhat v. State of Jammu & Kashmir and Others (2019), “Begging is also in fact evidence of the failure of the Government as well as the society at large to protect its citizens from debilitating effects of extreme poverty and to ensure to them basics of food, clothing, shelter, health, education, essential concomitants of the right to life ensured under Article 21 of the Constitution of India.”
- When evaluating the necessity of a criminalisation response to something that is essentially or even partly a welfare issue, it is crucial to question whose interests the law does, in fact, serve.
- There is need to address the questions such as:
- Does it help the vulnerable and/or the exploited, or is it a tool of persecution?
- Does it cater to the morality and sensibilities of the powerful?
- Does it hide the failures of the state?
- Or is it a quick fix that allows the government to abdicate and divert attention away from its welfare responsibilities?
- It is only then we, as citizens, hope to hold the state accountable in its use of the power to criminalise conduct.