Criminalisation Of Poverty: A Critical Analaysis of The Bombay Prevention of Begging Act

In order to delineate the parameters of culpability under BPBA, it is necessary to analyse the definition of begging under Section 2 of the act. The very broad definition of begging under BPBA enlarges the scope of culpability to an unreasonable level, as explained in the upcoming paragraphs.

The definition includes people soliciting alms based upon the act of “singing, dancing, fortune-telling, performing, or offering any article for sale.”[1] Hence, even money earned through utilising one’s skills has been drawn under the ambit of begging. One can notice how these are occupations are based upon traditional forms of knowledge and skills which the change in social realities have forced out of relevance.[2] This is prejudicial to the members of the De-notified, Nomadic, and Semi-nomadic tribes (“DNTs)  because many DNTs make a living out of the traditional skills elaborated upon above.[3] 

The act also penalises, vagrancy, i.e., wandering while not having any visible means of subsistence.[4]  Also, if a community is an itinerant in nature like many DNTs are, it becomes difficult to prove a conventional means of subsistence due to their very nature of existence.[5] 

The Delhi High Court observed in Ram Lakhan v State (2006) that “courts must step in and recognise the defence of necessity” and “satisfy themselves that the accused did not have a defence of necessity.”[6] The court also elucidated upon the reasons behind the importance of adoption of such defence in the case of BPBA. It explained that the defence of necessity arises due to an external danger forcing someone to indulge in criminal activity as a way of avoiding the harm.[7] Hence, the court asserted that individuals forced to beg due to hunger and starvation of their family and themselves should not be de-humanised through penalisation.[8] The court also expressed that in case of addiction(s) forces someone into begging, it is better to focus upon ‘de-addicting” the individual.[9] It also extended the defence of duress to individuals who have been forced to beg by gangs and ring leaders, thus protecting them from detention.[10] Hence, the court made an important distinction between voluntary and involuntary committing of acts under BPBA.

This can work as important guiding principles for strictly limiting culpability under the BPBA if not complete de-criminalisation as demanded by a more recent judgement of the court in Harsh Mander & Anr.  v Union of India & Ors (“Harsh Mander”).[11]  The court in Harsh Mander also noted relying on Ram Lakhan v State that the culpability under BPBA is extremely broad due to a very comprehensive definition of begging under the act.[12] The court also expressed its disapproval of a similar treatment of people begging and simply homeless under the BPBA.[13]

The next section attempts to see anti-beggary and vagrancy laws through the lens of harm caused.

I. Harm

J.S. Mill’s influential jurisprudential harm principle reads as follow:

“The only purpose for which power can be rightly exercised over any member of a civilised community against his will, is to prevent harm to others. The only part of the conduct of anyone, for which he is answerable to society, is that which concerns others. In the part which merely concerns others. In the part of which merely concerns himself, his independence is sovereign.”[14]

It can be inferred from J.S Mill’s Harm Principle, that a state which respects the liberty of its citizens should only criminalise that conduct of its citizens that harms fellow citizens or society at large. Thus, this principle acts as a restraint on a state’s legal paternalism. [15] However, there is an inherent element of subjectivity in determining what constitutes harmful conduct, since harm principle is silent on the importance or trivialness of the harm caused.[16] This subjectivity creates room for criminalisation, even when there is no tangible harm to society, based upon moral grounds.[17] 

Lord Devlin, argued on similar lines that criminal legislation based on moral grounds may be justified by the state on the ground that it preserves the society.[18] And, a fundamental agreement on what is good and evil among people is necessary for this preservation.[19] Thus, he believed penalising of what the society felt was immoral conduct was necessary not only to preserve the society but also the free will of the people in deciding what is wrongful or rightful conduct.[20] One can see similar arguments about the preservation of marriage and society being made in India today to justify the continuation of marital rape exception in the penal code.

Moral justifications for criminalisation can often be couched in the language of harm.[21] Another, example of the same is how in the past the AIDS epidemic of 1980s was used as a justification for the criminalisation of homosexuality in New York.[22] Therefore, the harm principle is being defined in relation with the public morality.

 Therefore, there is a lack of a coherent and objective-harm based principle of criminalisation that is free from ideas of moral indignation due to the presence of this subjectivity elaborated upon above. The laws penalising begging and vagrancy are also an instance of the current day trend of over-criminalisation of activities that do not cause any objective harm to society.[23] This trend disproportionately impacts numerous disadvantaged groups as discussed in the section on culpability.

 The next section explains the oppressive roots of such laws and how the legislative intent behind BPBA and other such laws is not for the benefit to society or even the rehabilitation of beggars.

II.  Legislative intent behind such provisions

European Vagrancy Act, 1869 was the earliest of the laws that penalized some form of begging in colonial India, although only people of European extraction could be held culpable under it.[24] The Act had racial motivations as it was introduced with the object to prevent the lowering of the image of the ruling whites among the natives.[25] It was thought that if poor and deprived white people indulged in acts like vagrancy and begging, it attracted stigma upon the ruling government.[26] The first anti-beggary and vagrancy laws of the whole world was introduced in  14^th century Britain with the wider purpose of keeping wages low by ensuring farm labour doesn’t detach with the landowning classes.[27] By the 16^th century, other countries in Europe and USA adopted these laws to penalise the unruly and maintain social order.[28] Therefore, historically these laws have been used as a tool of oppressing destitute people.

The initial legislative intent behind introduction of BPBA, 1959 was to control the population of poor which was based upon the Bengal Vagrancy Act of 1945 that intended the removal of beggars outside of public view.[29] Therefore, the factor of visibility is a determining factor for culpability under the act, since every definition under Section 2 of the act, has an element of publicness and visibility involved. Visibility of the plight that the destitute sections of society face is considered prejudicial to public tranquillity.[30] The anxiety regarding visibility extends to date as is corroboration in the application of Delhi’s anti-beggary (modelled after the BPBA) laws during Commonwealth Games of 2010 to make the capital city more “presentable” for the sporting heroes and tourists.[31] Delhi’s government launched a drive to free the city of its beggars using their own anti-beggary act and setting up of dozens of mobile courts for their trial.[32]

The next section briefly elaborates upon the conditions that lead to begging and those that surround it, which is essential to prove how criminalisation is not suitable for dealing with this issue.

iii. Begging - a socio-economic issue

The act of begging is usually the consequence of a primary inconvenience in one’s life like disability, substance addiction, marital or familial distress.[33] Koshish, in an exploratory study conducted in Bengaluru on destitution, found similar conclusions, that most people they surveyed suffered from unfortunate circumstances which forced them on the streets.[34] Some of them suffered from issues like leprosy, mental illness, alcohol addiction, death of the breadwinner of their family, rape, and abuse, etc.[35]Almost everyone also admitted to being made subject to violence and abuse on the streets.[36] Most people, also expressed their wish to move out of these circumstances if given the chance.[37] 

Poverty is also caused by systemic regimes of discrimination like the caste system.[38] A person only by being born into the lower end of caste hierarchy may be excluded from access to social, economic as well as cultural capital.[39] Therefore, it is no surprise that most of the multidimensionally poor people belong to  am Scheduled Tribe, Scheduled Caste or OBCs.[40]

The Delhi High Court’s judgement in the case of Harsh Mander v. Union of India rightfully asserted that it is necessary for begging to be seen in its context. [41]It arises out of homelessness and destitution, issues which policy interventions are better equipped to handle with.[42] Hence, it declared the law unconstitutional.[43]

 A similar view was also taken up by the Jammu and Kashmir High Court, in the case of Suhail Rashid Bhat v State of Jammu & Kashmir and others[44], in which the constitutionality of the Jammu and Kashmir Prevention of Beggary Act, 1960. It made a pertinent observation as follows:

 “The existence of the need to beg for sustenance manifests that the State has miserably failed   to achieve for all its citizens real justice- social economic or a society that promotes welfare of all.”[45]

The court additionally highlighted that how begging was considered a sign of moral degeneration and laziness under the Victorian era as opposed to the practice of alms being considered a virtuous act under religions like Hinduism, Jainism and Buddhism, in India.[46] Hence, the court affirmed the view that criminalisation of begging was a colonial construction.

There is a need for the adoption of a rehabilitative rather than a punitive approach by both central and state governments for dealing with beggars.[47] The certified institutions functioning under Section 2 (ii) of BPBA, rather than making efforts towards imparting skills and professional training to make beggars employable, provide the offenders with an inhumane treatment. [48] For example, there were allegations of sexual assault upon foreign women detained in Nirmal Chhaaya complex (Delhi) as beggars upon expiration of their visa in 2017.[49]

The four most prominent penological principles are deterrence, incapacitation, retribution, and rehabilitation.[50]  The purpose of deterrence however cannot be fulfilled with the criminalisation since as discussed above begging is more often than not involuntary caused by unfortunate circumstances in an individual’s life. Since, there is also no tangible harm caused to society through the act of begging or vagrancy, the application of  principle of incapacitation is also questionable. When a person is compelled by necessity to perform an act and the act also has no negative consequences for the society, the  application of principle of retribution also seems unreasonable. The last penological purpose of rehabilitation may have been a justification for BPBA, but as discussed previously, the act does not have a rehabilitative approach.

Therefore, criminalisation of begging does not satisfy the penological purposes is a blunt tool to deal with this complex socio-economic issue. And there is a need to repeal these acts or at least severely limit the culpability under the same.

Conclusion

The Bombay Prevention of Begging Act, 1959 oppresses disadvantaged sections of society and penalises them for circumstances beyond their control. The extremely broad definition of begging enlarges the scope of culpability to levels on unreasonable and rids with the distinction between voluntary and involuntary acts. The criminalisation of begging is based upon a distorted application of the harm principle, and is a part of the broader trend of over-criminalisation based upon moral grounds. The law itself has colonial roots and construction and is intended to remove beggars or one can say destitution from visibility in the public spaces. Its punitive approach is not suitable to deal with complex socio-economic realities that can be better dealt with policy intervention and a rehabilitative approach.

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This blog has been authored by Pulkit Chawla, student at Rajiv Gandhi National University of Law, Punjab (Second Runner Up of the 1st RGNUL National Socio-Legal Blog Writing Competition)

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REFERENCES

[1] The Bombay Prevention of Begging Act 1959 (BPBA 1959), s 2

[2] Vijay Raghavan and Mohammed Tarique, ‘Penalising Poverty: The Case of the Bombay Prevention of Begging Act, 1959’ (2018) 53(22) Economic & Political Weekly <https://www.epw.in/journal/2018/22/perspectives/penalising-poverty.html> accessed 15 March 2026

[3]Ibid

[4] BPBA 1959, s 2

[5]Manas Raturi, ‘Bombay HC’s Cruel Remarks on Beggars Ignore State’s  Failure, Reality of Urban Poor’ The Wire, (11 July 2021) <https://thewire.in/rights/bombay-hcs-cruel-remarks-on-beggars-ignore-states-failure-reality-of-urban-poor> accessed 31 March 2026

[6] Ram Lakhan v State (2006) SCC OnLine Del 1501 [8]

[7] Ibid [9]-[11]

[8] Ibid [8]

[9] Ibid

[10] Ibid  

[11] Harsh Mander v Union of India (2018) SCC OnLine Sel 10427

[12] Ibid [36]

[13] Ibid [17]

[14] John Stuart Mill, On Liberty I (Dover Publications 2002), citing Arthur Ripstein, ‘Beyond the Harm Principle’ (2006) 34(3) Philosophy & Public Affairs

[15] Latika Vashist, ‘Re-thinking Criminalisable Harm in India: Constitutional Morality as a Restraint on Criminalisation’ (2013) 55 (1) Journal of the Indian Law Institute 73

[16] Bernard E. Harcourt, ‘Collapse of the harm principle’ (1999) 90(1) The Journal of Law and Criminology < https://scholarlycommons.law.northwestern.edu/jclc/vol90/iss1/3> accessed 15 March 2026

[17] Vashisht (n 15) 85

[18] Lord Devlin, ‘Law, Democracy and Morality’ (1962) 110(5) University of Pennsylvania Law Review 635, 638

[19] Ibid 639

[20] Ibid 640

[21] Harcourt (n 16)

[22] Ibid

[23] Vashisht (n 15) 87

[24]Manas Raturi, ‘Raj and the Begging Brawl; The Colonial Roots of India’s Anti-beggary Laws Echo Even Now’ The Leaflet, (27 June 2018) <https://theleaflet.in/raj-and-the-begging-brawl-the-colonial-roots-of-indias-anti-beggary-laws-echo-even-now/> accessed 15 March 2026

[25] Ibid

[26] Ibid  

[27] William J. Chambliss, ‘A Sociological Analysis of the Law of Vagrancy’ (1964) 12(1) Social Problems <https://doi.org/10.2307/798699> accessed 16 March 2026

[28] Raghavan (n 2)

[29] Dyutimoy Mukherjee, ‘Laws for Beggars, Justice for Whom: A Critical Review of the Bombay Prevention of Begging Act 1959’ (2008) 12(2) The International Journal of Human Rights 279, 286.

[30] Bhaskar Vishwajeet, ‘Menace of over-criminalisation’ (2021) SSRN Electronic Journal <10.2139/ssrn.4079410> accessed 21 March 2026

[31] K.P. Narayana Kumar, ‘Delhi is Hiding Its Beggars Ahead of Commonwealth Games’ Forbes India, (16 October 2019) <https://www.forbesindia.com/article/on-assignment/delhi-is-hiding-its-beggars-ahead-of-commonwealth-games/5822/1> accessed 21 March 2026

[32] Ibid

[33] Vishwajeet (n 15)

[34]Tata Institute of Social Sciences Mumbai, ‘Begging: A Preferred Way of Living or Sheer Necessity to Survive’ (2016)

[35] Ibid

[36] Ibid

[37] Ibid

[38] Vani K. Borooah, ‘Caste, Inequality, and Poverty in India’ (2005) 9(3) Review of Development Economics 399

[39] Ibid

[40] ‘In India, 5 out of Multidimensionally poor are from lower tribes or castes: UN Report’ New Indian Express, (7 October 2021) <https://www.newindianexpress.com/nation/2021/Oct/07/in-india-5-out-of-6-multidimensionally-poor-are-from-lower-tribes-or-castes-un-report-2368917.html>  accessed 22 March 2026

[41] Harsh Mander (n 11) [32]

[42] Ibid

[43] Ibid [46]

[44] Suhail Rashid Bhat v State of Jammu & Kashmir and ors (2019) SCC OnLine J&K 869

[45] Ibid [305]

[46] Ibid [39]

[47] Manas Raturi, ‘A Positive Beginning: Delhi High Court’s Decision Decriminalising begging is a step in the right direction’ The Leaflet, (10 August 2018) <https://theleaflet.in/a-positive-beginning-delhi-high-courts-decision-decriminalising-begging-is-a-step-in-the-right-direction/> accessed 31 March 2026.

[48] Ibid

[49] ‘DCW Suggests Changes for Nirmal Chhaya home’ The Hindu, (14 February 2017) <https://www.thehindu.com/news/cities/Delhi/DCW-suggests-changes-for-Nirmal-Chhaya-home/article17298709.ece> accessed 31 March 2026

[50] Joseph Gordan, ‘Theories Behind Criminal Punishment-Explained’ The Business Professor, (23 September 2021) <https://thebusinessprofessor.com/en_US/criminal-civil-law/theories-behind-criminal-punishment> accessed 31 March 2026