Critically analysing the ‘Delhi HC’s Decriminalisation of Begging’ from a Dworkinian lens

By Kshitij Goyal









Introduction

The extraordinarily broad definition of “begging” under the Begging Act[1] criminalised begging. Here, there was uncertainty regarding the scope of the word ‘begging’. Moreover, the impugned Act gave undue powers to arrest a ‘beggar’ without a warrant.[2] Also, the District Magistrate was empowered to take fingerprints of persons in the ‘certified institutions’ without consent. These institutions were created for the detention, training, and employment of beggars.[3] Refusal to give fingerprints would warrant arrest under the Act. The legislative intent no doubt assumes all the beggars as criminals.  H.L.A Hart would have attributed this indeterminacy to the ‘open texture’ of the word ‘begging.’ According to him, open texture underpins the notion that vagueness is an inevitable feature of legal languages. Even though it is a penumbral situation, parties have predetermined rights in such fringe cases as per Dworkin.[4] So, Beggars would have rights.

The decision to decriminalise begging by the Delhi HC is very transformative because the court has vindicated Constitutional conscience while decriminalising begging. The court held that denial of dignity and the right to life is a clear violation of fundamental rights that should not be tolerated in our country.[5]

In this article, the author would ascertain the Ronald Dworkin’s position on the Delhi HC judgment with respect to transformative constitutionalism. Then, the author, with the help of Dworkin, would try to fill the lacuna left by the Delhi HC in the remaining judgment.

In the 1st part, the author argues that the High Court’s judgement is significant as it recognised our Constitution as the transformative constitution, which seeks to uplift all the individuals and undo the colonial legacy of injustice. It satisfies the interpretative method of Ronald Dworkin as it is possible to read our Constitution as a transformative constitution. In the 2nd part, the author would try to fill the lacuna left by the judgment in the absence of any interpretation of the court to protect begging under Article 19(1)(a). The author would then ascertain whether it can be regulated in the name of public morality by using the conceptions of Rawls and Dworkin regarding it. In the 3rd part, the author argues that the notion is coming from the judgment that the state can criminalise begging in situations where the individuals are forced into begging on account of poverty. The author would use ‘broken window thesis’ and ‘Dworkin’s Rights thesis’ to establish that ‘begging by virtue of poverty’ should not be criminalised and the court could have included it within voluntary begging.









1. Reflection of Transformative Constitutionalism

In this section, I argue that it is possible to read our Constitution as a transformative constitution through an interpretative method by Ronald Dworkin.

The theory of constructive interpretation of Dworkin is about defending the interpretation of the Constitution on account of the “political theory that substantiates the whole Constitution”.[6] Dworkin’s interpretive method provides an easy and defensible way to give effect to the progressive values cardinal in the Constitution. According to Dworkin in Law’s Empire, propositions of law must follow the principles of fairness, justice, and procedural due process that offer the best constructive interpretation of the community’s legal practice.[7] Dworkin argues these principles be imposed as a purpose on an object or practice to make it best, which, according to him, is his theory of constructive interpretation.[8]

Dworkin’s putative judge ‘Hercules’ wants the Constitution committed to socio-economic and political rights.[9] He does not wish foundational law to be neutral concerning the people’s economic and social power to experience self-realisation.[10] He believes that liberal reading of the Constitution can be asserted on objective grounds to make it the best interpretation. It is more likely that the judge pursuing the Dworkinian interpretation method would term it a caring, progressive, and communitarian interpretation of the Constitution.[11] However, it needs to be attributed to certain political commitments of the Constitution. Dworkin’s theory provides judges with space to thrust arguments for constitutional principles while keeping the general principles alive. Dworkin stresses the limitations the courts must observe to ensure that adjudication discourse retains ‘justice-qualities’.[12] So, acting “in pursuit of the spirit of a community of principle” is a feasible way of conceiving the project of transformative constitutionalism.[13]

This judgment made it clear that no conduct can be made criminal if the conduct does not have any wrongful harms as defined in the spirit of constitutional principles. Further, the court espoused correctly that “reduction of anyone to penury and financial deprivation can never be the object of the welfare state by way of social benefit legislation”.[14] It is the duty of the state to ensure all its citizens, liberty, Justice, Equality, and Fraternity.[15] This judgment made it clear that collective goals cannot be sufficient justification for denying individuals their rights and imposing loss upon them.[16] This meets the text and the soul of our Constitution, the elements of constitutional morality.[17] This judgment is similar to Naz Foundation,[18] where the notion of constitutional morality was invoked to hold that there is a legal right not to be unfairly criminalised.  So, this judgment in pursuit of seeking to lift all the individuals and undoing the colonial legacy of injustice ends up satisfying the interpretative method of Ronald Dworkin. In the next part, I would try to fit ‘begging’ under Article 19(1)(a) and argue that it cannot be regulated in the name of public morality by using Rawls and Dworkin’s conceptions.









2. Begging, a fundamental right to speech subject to compelling state interest

The restriction on fundamental rights is justified mainly on compelling state interest. In the instant case, the state justified the reasonable restrictions on begging in the interest of public order and morality. The court surprisingly did not touch upon the petitioners’ argument based on Article 19(1)(a) of the Constitution.

The author would seek refuge in the Spence Test used by the Supreme Court of the USA to determine whether begging is covered under free speech.[19] The Spence test looks at the following essentials, namely a) The person did the impugned activity to communicate a ‘particularised message’ and b) Whether the observer might perceive the activity to fall under ‘speech’ due to its nature. The sole objective of beggars indeed is to solicit alms. Still, in doing so, they impliedly or expressly try to impress upon the observer their plight so that the observer pitying their deplorable condition may concede to their request. So, begging falls under speech as per Spence Test.

The author believes that regulating begging would allow the state to regulate the external preferences enforce the moral convictions of the majority without any actual assessment of the threat to public order. This would be similar to the regulation of homosexuality by the state based on compelling state interest, which is not warranted either under Rawls’ or Dworkin’s theories, respectively.[20]

Rawls’ conception clearly provides the basis for what kind of interest the state can or cannot protect. It does not envisage the majority’s enforcement of morality to be a right or a duty of the state. He provided two caveats for regulating individual liberty in the interest of public order and morality- (a) Its reasoning must be acceptable to all; (b) There must be evidence of danger to public order.[21] The criminalisation of begging would not stand the test of compelling state interest according to this hypothesis as the morality of the majority cannot itself be treated as valid public interest in the absence of any evidence of a threat to public order. Generally, the main reason behind criminalising begging was the beggars’ idleness that predisposed them to lawlessness.

Ronald Dworkin distinguishes between external and personal preferences- external preferences deal with what other people should have done whereas personal preferences deal with what I should have done.[22] He made a principled distinction in favour of decriminalisation of homosexuality because, as per him, the political decision cannot account for external preferences. The fact that homosexuality is regarded as immoral by the majority does not itself make a case for criminalising homosexuality because the preferences are external ones here.[23] Dworkin’s distinction is crucial here. It provides a basis for the distinction between instances of public morality that do not warrant protection at the cost of individual liberties and those that warrant it. Subject to criticism, these theories provide a scientific system to arrive at a conclusion concerning the validity of the Anti-begging law trampling upon individual liberty in the name of maintaining public morality.

Therefore, the government cannot abridge the rights of the citizens, especially one as imperative as the right to freedom of speech and expression. In the last part, it is argued that begging by virtue of poverty should not be criminalised according to the ‘broken window thesis’ and ‘Dworkin’s Rights thesis’.









3. Improper classification of begging and the limitless power of the state to criminalise ‘begging by virtue of poverty’

In this case, the court should have defined the contours of involuntary and voluntary begging and what it entails. On further reading, the court seems not to have proscribed against “specified types of forced beggary” to curb forced begging. This can be noted from the fact that section 11 of the Act,[24] which penalises any person who causes or employs any person to beg, has not been declared as unconstitutional. The court has not defined what involuntary begging means. A situation can come within its ambit when a person is being forced to beg due to poverty. Arguments would perhaps be raised that ‘begging on account of poverty’ does not involve free will as social conditions of a person lead to such a person’s actions.  So, involuntary begging includes within its fold ‘begging by virtue of poverty’ and forced begging. However, these arguments could be refuted through the reasons-responsiveness theory.[25] This theory does not require that the person must be the originator of his actions. The actions of a person are considered free-willed if they are the result of some rational consideration. The person must have regulative control over his actions to construe such actions as free-willed. So, free will is present when a person begs on account of poverty due to the regulative control the person has over his actions, i.e., begging. In contrast, the person who is forced to beg under some racket has no free will present in his actions as he has meagre guidance control over his actions. Accordingly, the court could have included wilful ‘begging on account of poverty’ within the purview of voluntary begging.

Another problem with unaddressed classification is that voluntary begging can claim a situation when a well-off person wilfully engages in begging and such form of begging is not due to social causes or poverty. The court did not draw any classification of involuntary and voluntary begging. The court just agreed that ‘involuntary begging’ can be criminalised without ascertaining the wrongful harm caused by it and the disproportionate over-criminalisation that it can cause.[26] So, the court seems to be criminalising a person who engages in begging due to poverty and decriminalising a person already well-off and engages in begging.

In my opinion, the state seems to be relying on the “broken” window” thesis to hold that minor incivilities such as begging by virtue of poverty can be a precursor to more serious harm which in turn can hamper public order and morality.[27] Here, I have an objection to this kind of criminalisation as it contravenes the requirement of fairness by punishing people for the unintended consequences of their actions. According to Dworkin, this fairness can only be overridden in exceptional cases “when the cost to society would be a degree beyond the cost paid to grant that original right”.[28] In this case, there can be an assault on the equality and dignity of an individual. So, the remote consequences are not the justification for overriding the fairness constraint. This shows that ‘begging by virtue of poverty’ which comes in involuntary begging as seems in the judgment should not be criminalised.









Conclusion

There is a deeper logic running in this conscientiously broad statute that covered entire ways of life of such groups, individuals, and communities to tame and stigmatise them by attributing them with hereditary criminality. The reference to “no visible means of subsistence and wandering about” clearly reflects the desire of the legislators to erase the people who act or look different from the public sphere. Striking down the statute is a potent blow against the enduring colonialism in our legal system that continued to treat individuals as subjects, rather than rights-bearing citizens. This judgment in pursuit of seeking to lift all the individuals and undoing the colonial legacy of injustice ends up satisfying the interpretative method of Ronald Dworkin.

Regulating begging would be regulating the external preferences by the state as per Dworkin, and regulating it in the name of public order and morality would be against the two caveats of Rawls for regulating individual liberty. Further, ‘begging by virtue of poverty’ which comes in involuntary begging as seems in the judgment, should not be criminalised as per Dworkin’s Rights thesis. In the end, I would say that the court should not have left so many lacunae in the judgment.





‘At the end, the author would like to thank Professor Kunal Ambasta of NLSIU Bangalore
for valuable insights into the article.’









The author, Kshitij Goyal, is currently a law student at the National Law School of India University (NLSIU),
Bangalore.


[1] Bombay Prevention of Begging Act, 1959.

[2] Bombay Prevention of Begging Act, 1959, §4.

[3] Bombay Prevention of Begging Act, 1959, §29.

[4] Medha Vinayak Marathe, The Scheme of Open Texture of Legal Language: Towards Finding a Solution for Ambiguous Cases? 1 (4) NUJS L. REV. 685(2008).

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

[6] RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 106(1978).

[7] RONALD DWORKIN, LAW’S EMPIRE 225(1988).

[8] Id., 52.

[9] Karl E Klare, Legal Culture and Transformative Constitutionalism,14 SAJHR 146, 163(1998).

[10] Id., 154.

[11] Roederer, Race Cards, Academic Debate and Progressive Liberal Scholarship: what is a Liberal

anyway? 118 S. African L.J.708, 716(2001).

[12] UPENDRA BAXI, THE FUTURE OF HUMAN RIGHTS 184(2002).

[13] Theunis Roux, Transformative Constitutionalism and the best interpretation of the South African Constitution: Distinction without a difference? 1998 SAJHR 146(2009).

[14] Harsh Mander v. Union of India, 2018 SCC OnLine Del 10427, ¶ 16.

[15] Id., ¶35.

[16] Norman E. Bowie, Taking Rights Seriously by Ronald Dworkin, 26 (908) Catholic University Law Review 910(1977).

[17] SUJIT CHOUDHRY, MADHAV KHOSLA, PRATAP BHANU MEHTA, THE OXFORD HANDBOOK OF THE INDIAN CONSTITUTION 73 (2017).

[18] Naz Foundation v. Government of NCT of Delhi, (2009)160 Delhi Law Times 277, ¶94 (A.P. Shah CJ and S. Murlidhar J).

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

[20] Rohit Sharma, The Public and Constitutional Morality conundrum: A Case-Note on the Naz Foundation judgment, 2 NUJS L. REV. 451(2009).

[21] Id., 452.

[22] Id., 445.

[23] DWORKIN, supra note 4, 358.

[24] Bombay Prevention of Begging Act, 1959.

[25] David Zimmerman, Reasons-Responsiveness and Ownership-of-Agency: Fischer and Ravizaa’s Historicist Theory of Responsibility, 6 (3) The Journal of Ethics 199 (2002).

[26] Latika Vashist, Rethinking Criminalizable harm in India: Constitutional Morality as a restrain in India, 55 Journal of Indian Law Institute 86(2013).

[27] Dennis J. Baker, The Moral Limits of Criminalizing Remote Harm, 10 (3) New Criminal Law Review: An International and Interdisciplinary Journal 370 (2017).

[28] DWORKIN, supra note 4, 200.

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