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).”

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.”

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.”

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