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13th August 2018 The Hindu Editorial Analysis under 10 mins series

The begging act struck down by the Delhi high Court, tirupathi flag staff case during the British period

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  1. 13th Aug 2018 THE HINDU Editorial Analysis ha ii

  2. Undoing a legacy of injustice In 1871, the colonial regime passed the notorious Criminal Tribes Act. This law was based upon the racist British belief that in India there were entire groups and communities that were criminal by birth, nature, and occupation. The Act unleashed a reign of terror, with its systems of surveillance, police reporting, the separation of families, detention camps, and forced labour The colonial administrators were particularly concerned about nomadic and itinerant communities, which by virtue of their movements and lifestyle were difficult to track, surveil, control, and tax. Through laws such as the Criminal Tribes Act, and other legal weapons such as vagrancy laws, the regime attempted to destroy these patterns of life, by using criminal laws to persuade communities into settlements and subjecting them to

  3. ....forced labour The new government continued to treat individuals as subjects to be controlled and administered, rather than rights-bearing citizens. One of the most glaring examples of this is the Bombay Prevention of Begging Act. The Begging Act was passed in 1959 by the State of Bombay, and has continued to exist in as many as 20 States and two Union Territories. But last week, the Delhi High Court struck it down as inconsistent with the Constitution The Begging Act criminalises begging. It gives the police the power to arrest individuals without a warrant. It gives magistrates the power to commit them to a "certified institution" (read: a detention centre) for up to three years on the commission of the first "offence', and up to 10 years upon the second "offence".

  4. Before that, it strips them of their privacy and dignity by compelling them to allow themselves to be fingerprinted. The Act also authorises the detention of people "dependant" upon the "beggar" (read: family), and the separation of children over the age of five Certified institutions have absolute power over detainees, including the power of punishment, and the power to exact "manual work". Disobeying the rules of the institution can land an individual in jail The Act defines "begging" to include "soliciting or receiving alms, in a public place whether or not under any pretence such as singing, dancing, fortune telling, performing or offering any article for sale" and "having no visible means of subsistence and wandering about or remaining in any public place in such condition or manner, as makes it likely that the person doing so exist soliciting or receiving alms

  5. The pointed reference to "singing, dancing, fortune telling, performing or offering any article for sale" makes it clear that the purpose of the Act is not simply to criminalise the act of begging (as commonly understood), but to target groups and communities whose itinerant patterns of life do not fit within mainstream stereotypes of the sedentary, law-abiding citizen with a settled job Once individuals fall within its clutches, the Begging Act effectively renders them invisible, by confining them to "certified institutions" after a truncated, summary judicial procedure Like the poorhouses of 19th century Europe, it is based on a philosophy of first criminalising poverty, and then making it invisible by physically removing "offenders" from public spaces. Effectively, it places a quarantine around the poor and the "undesirable" keeping them from.

  6. ...accessing spaces reserved for the use of "respectable" citizens. For these people, the constitutional guarantees of pluralism and inclusiveness do not exist The authorities have not hesitated to use the Begging Act as a weapon. Just before the 2010 Commonwealth Games, the Delhi government was engaged in combing operations to take beggars off the street. Such operations are also a regular part of preparing for national events, such as Independence Day and Republic Day In its judgment delivered last week (Harsh Mander v. Union of India and Karnika Sawhney v. Union of India), a Bench of the Delhi High Court presided over by the Chief Justice, held that the Begging Act violated Article 14 (equality before law) and Article 21 (right to life and personal liberty) of the Constitution

  7. In oral argument, the government conceded that it did not intend to criminalise "involuntary" begging. The High Court noted, however, that the definition of begging under the Act made no such distinction, and was therefore entirely arbitrary More importantly, it also held that under Article 21 of the Constitution, it was the state's responsibility to provide the basic necessities for survival food, clothing, shelter-to all its citizens. Poverty was the result of the state's inability-or unwillingness- to discharge these obligations. Therefore, the state could not turn around and criminalise the most visible and public manifestation of its own failures . The Delhi High Court has done its job in striking down a vicious law that criminalised poverty. But it is the task of the Legislative Assembly and the government to replace the punitive structure of the (now defunct).

  8. ...Begging Act with a new set of measures that genuinely focusses on the rehabilitation and integration of the most vulnerable and marginalised members of our society

  9. The inexorable wheels of justice The clash between religious faith and the law is not of recent origin and it would be unfair to lay the blame at the doorstep of the Constitution . The East India Company, till the middle of the 19th century oversaw the management and administration of the properties of the deity, Venkateswara or Srinivasa (or Balaji) After the Madras Regulation of 1817 was passed, the temple came under the Board of Revenue which supervised it through the District Collector. However, a movement in England (around 1840)

  10. ...disapproved a Christian company (the East India Company) administering Hindu and Muslim religious institutions Consequently, the administrative reform management of the temple was handed over to a mahant who, as the head of that mutt, had his headquarters in Tirupathi. He was also commonly referred to as the Mahant of Tirupathi When a flagstaff for the temple was erected, devotees donated large sums of money to acquire gold coins. These were to be placed in a vessel which was then buried at the base of the flagstaff. But soon a charge of criminal breach of trust and misappropriation was made against the mahant, with the allegation that the coins had been substituted with copper coins o Such a charge could have been proved or disapproved only by digging up..

  11. ...Chief Justice Arthur Collins and Justice Muthusami lyer P.S. Sivasamy lyer, an advocate general and another High Court luminary, had a ringside view of the proceedings. In his memoirs he recalled: "He (Norton) invoked the religious sanctity of flagstaff and he appealed to the court to avoid a sacrilege, which could ring throughout the orthodox world, and he advanced every possible argument against digging up the site of the flagstaff. Norton went on for three hours Sir Subramania lyer's turn then came. He spoke for less than an hour, but the effect was electric. He wound up his magnificent speech, a speech of real eloquence, with that well-known saying, Fiat justitia ruat caelum which means as you know, "Let justice be done even though the heavens fall The Bench upheld the Magistrate's order, (with the judgment delivered by..