Suhail Rashid Bhat vs State Of Jammu & Kashmir And Others

PIL 24/2018 Reserved on: 04.06.2019 Pronounced on: 25.10.2019 Suhail Rashid Bhat ..........Petitioner(s) Through: Petitioner in person V/s State of Jammu & Kashmir and others. ......Respondent(s) Through: Mr Sheikh Feroz Ahmad, Dy.AG.

CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR JUSTICE RAJESH BINDAL

JUDGMENT

Per Gita Mittal, CJ.

"Over the last four decades, our constitutional jurisprudence has recognized the inseparable relationship between protection of life and liberty with dignity. Dignity as a constitutional value finds expression in the Preamble. The constitutional vision seeks the realization of justice (social, economic and political); liberty (of thought, expression, belief, faith and worship); equality (as a guarantee against arbitrary treatment of individuals) and fraternity (which assures a life of dignity to every individual). These constitutional precepts exist in unity to facilitate a humane and compassionate society. The individual is the focal point of the Constitution because it is in the realization of individual rights that the collective well-being of the community is determined. Human dignity is an integral part of the Constitution. Reflections of dignity are found in the guarantee against arbitrariness (Article 14), the lamps of freedom (Article 19) and in the right to life and personal liberty (Article 21)."

(D. Y. Chandrachud, J for Khehar, CJ, Agrawal, J, himself and Nazeer, J in Justice K. S. Puttaswamy (retd.) and anr. v. Union of India and Ors : (2017) 10 SCC 1(para 108))

"The Court must be guided by the values and principles essential to a free and democratic society which I believe

PIL 24/2018 Page 1 of 196 embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society. The underlying values and principles of a free and democratic society are the genesis of the rights and freedoms guaranteed by the Charter and the ultimate standard against which a limit on a right or freedom must be shown, despite its effect to be reasonable and demonstrably justified."

(L`Heureux-Dube, J in James Egan and John Norris Nesbit v. Her Majesty The Queen in Right of Canada: (1995) 2 SCR 513)

01. By way of the instant petition filed under Article 226 of the

Constitution of India read with Section 103 of the Constitution of Jammu

and Kashmir, a challenge is laid by Mr Suhail Rashid Bhat, an advocate

practicing in this Court and a permanent resident of Jammu & Kashmir

State, to the constitutionality of the Jammu & Kashmir Prevention of

Beggary Act, 1960 (hereafter called the 'Jammu & Kashmir Act, 1960'),

and the Jammu & Kashmir Prevention of Beggary Rules, 1964,(hereafter

referred to as the 'Rules, 1964', for brevity) made in exercise of powers

under Section 9 of the Act.

02. The writ petition seeks the following prayers:

"1. Issue an appropriate writ declaring the J&K Prevention of Begging Act, 1960, unconstitutional and violative of Articles 14, 15, 20 and 21 of the Constitution.

2. Issue an appropriate writ declaring the rules (Jammu & Kashmir Prevention of Beggary Rules, 1964) made under section 9 of the act declare the J&K Prevention of Begging Act, 1970, unconstitutional.

3. Issue a writ of certiorari quashing or setting aside the order dated 23.05.2018 passed by the District Magistrate, Srinagar banning begging in Srinagar."

03. The petitioner thus challenges the constitutionality of the

enactment on the ground that it violates Articles 14, 19, 20, 21 and 22 of the

PIL 24/2018 Page 2 of 196 Constitution of India. A further challenge is laid on the same grounds to an

order dated 23rd May, 2016 issued by the District Magistrate, Srinagar,

whereby the District Magistrate banned begging in Srinagar for the reason

that Srinagar was the summer capital of the State and a tourist destination

and directions were issued to the police officials to arrest beggars in the

Srinagar city.

Headings

04. We propose to consider the several propositions placed by the parties in seriatim. For expediency, we set down hereunder the headings under which we have considered the challenge.

Paragraph numbers I Statutory provisions 5 to 9

II Petitioner's contentions 10 to 14

III Respondents submissions 15 to 24

IV Rights of residents of the State of Jammu & 25 to 32 Kashmir

V Scope of Judicial Review 33 to 34

VI Historical analysis and rationale behind the 35 to 42 legislation

VII What is begging and reasons for it 43 to 55

VIII What is entailed in begging-whether any 56 to 64 recognized right is involved?

IX Inter-relationship of the fundamental rights 65 to 73

guaranteed under part-III of the Constitution of India.

X Whether the legislation curtails any of the right 74 to 128 guaranteed under Article 19 of the Constitution XI The definition of begging-its broad sweep and 129 to 188 vagueness

PIL 24/2018 Page 3 of 196 XII Inevitable and chilling effect of the overbroad 189 to 197 Statute

XIII Whether the legislation results in violation of the 198 to 225 rights guaranteed under Article 14 of the Constitution of India?

XIV Right to life-the Constitutional guarantee under 226 to 228 Article 21 of the Constitution of India-Impact of the legislation

Concomitants of the guarantee under Article 21 229 to 238

Entitlement to protection of dignity, privacy and 239 to 291 liberty XV Directive Principles of State Policy 292 to 300 XVI Obligations under International Instruments 301 to 304

XVII Working of Anti Begging Legislations 305 to 323

XVIII Challenge to the procedure prescribed by the law 324 to 362

XIX Defence of necessity to explain an act of begging 363 to 370

XX Legality of order dated 23rd May, 2018, passed by 371 to 373 the District Magistrate, Srinagar.

XXI Impact of notification dated 5th August, 2019 374 to 378 (Re-organization Act)

XXII Compelling another to beg is not penal 379 to 383

XXIII A word for the petitioner 384

XXIV Conclusions 385

XXV Result 386 to 388

(I) Statutory provisions

05. The Jammu and Kashmir Prevention of Beggary Act, 1960

(Act No.40 of 1960) received the assent of the Sadar-i-Riyasat on 16th

October, 1960 and was published in the Government Gazette on 6 th

December, 1960. Its preamble states that it is enacted as "An Act for

preventing beggary and making beggars good citizens".

PIL 24/2018 Page 4 of 196

06. It is also essential to set out the statement of "Statement of

Objects and Reasons" as declared by the legislature. The same reads as

follows:

"Beggary has become a nuisance and deserves to be checked. Some have adopted this as profession and are exploiting the philanthropic instinct though capable of manual labour. When we are marching towards a welfare State, it is high time to stopit, legal measures be adopted."

(Emphasis supplied)

07. For expediency, we may extract the Statute which consists of

only nine sections and is relevant for the present consideration, hereunder:

"2. Definitions.- In this Act unless there is anything repugnant in the subject or context -

(a) "Begging" means -

(i) soliciting alms in a public place, or in or about a temple, mosque or other place of public worship, whether or not under any pretence;

(ii) entering on any private premises for the purpose of soliciting alms;

(iii)exposing or exhibiting with the object of obtaining or extorting alms, any sore, wound, injury, deformity or disease whether of human being or an animal;

(iv)having no visible means of subsistence and wandering about or remaining in any public place or in a temple, mosque or other place of public worship in such condition or manner as makes it like that the person doing so exists by soliciting alms;

(v) allowing himself to be used as an exhibit for the purpose of soliciting alms, but does not include soliciting money or fee or gift for a purpose authorized by any law or authorized in the prescribed manner by the District Magistrate.

(b) "Sick Home" means a home certified by the Government or by any subordinate authority empowered by it in this behalf to be a fit place for the reception of beggars suffering from leprosy or any other infectious or contagious disease;

(c) "Court" means the Court of Judicial Magistrate 1st Class;

(d) "Police Officer" means a Police Officer not below the rank of a Sub-Inspector of police;

PIL 24/2018 Page 5 of 196 (e) "prescribed" means prescribed by rules made under this Act;

(f) "Public Place" means any highway, public park or garden and any public Bridge, road, lane, foot-way, square, court, alley or passage;

(g) "Beggar's Home" means a home notified by the Government as suitable for the reception of beggars above the age of 14 years;

(h) "Children's Home" means a home notified by the Government as suitable for the reception of beggars below the age of 14 years and not suffering from any infectious or contagious disease.

3. Begging an offence under this Act.--If any person is found begging within an area to which this Act applies, he shall be guilty of an offence under this Act.

4. Arrest without Warrant.-

(1) Any Police Officer or other person authorised in this behalf by the District Magistrate may arrest without a warrant any person who is found begging.

(2) The provisions of Section 61 of the Code of Criminal Procedure, Svt. 1989, shall apply to every arrest under this Section, and the officer-incharge of the Police Station shall cause the arrested person to be kept in the prescribed manner until he can be brought before the Court.

5. Summary inquiry in respect of persons found begging and their detention.-

(1) Where a person is brought before the Court under Section4, the court shall make a summary inquiry as regards the allegation that he was found begging.

(2) If the inquiry referred to in sub-section (1) cannot be completed forthwith, the court may adjourn it from time to time and order the person to be remanded to such place and custody as may be convenient.

(3) If on making the inquiry referred to in sub-section (1) the Court is not satisfied that the person was found begging, it shall order that such person be released forthwith. (4) If on making the inquiry referred to in sub-section (1) the Court is satisfied that such person was found begging, it shall record a declaration that the person is a beggar. The Court shall also determine after making an inquiry whether the person was born in the State of Jammu and Kashmir and ordinarily resides therein and shall include the findings in the declaration.

(5) The Court shall order the person declared as beggar under sub-section (4) to be detained in a Sick Home, Children's

PIL 24/2018 Page 6 of 196 Home, or a Beggar's Home, as the case may be, for a period not less than one year and not more than three years in the case of first offence.

6. Penalty for begging after detention as beggar.-

(1) Whoever having been previously declared or detained in a Sick Home, Beggar's Home or Children's Home, as the case may be, in accordance with the provision of section 5, is found begging shall on conviction be punished as is hereinafter referred to in this section.

(2) When a person is convicted for the second time under sub-

section (1) the court shall order him to be detained in a Sick Home, Beggar's Home or Children's Home, as the case may be, for not less than three years and not more than seven years:

Provided that if the Court, at any time after the passing of the sentence, of its own motion, or on an application, is satisfied that the person sentenced under this sub-section or Section 7, sub-section (2) sub-section (5) of Section 5 is not likely to beg again, it may release that person after due admonition on a bond for his abstaining from begging and being of good behaviour, being executed with or without sureties, as the court may require, by the beggar or any other person whom the court consider suitable.

7. Punishment for escape from Sick Home, Beggar's Home or Children's Home.--Whoever escapes from a Sick Home, Beggar's Home or Children's Home to which he has been committed, on conviction under the provisions of this Act, before the expiry of the period for which he has been committed, shall be punished with fine which may extend to one hundred rupees or with imprisonment which may extend to three months.

8. Release.--If the Government at any time, of its own motion, or an application, is satisfied that a person convicted under Section 5 or 6 and committed to a Sick Home, a Beggar's Home or a Children's Home has been cured of disease or is in a fit state of health to earn his living or is otherwise fit to be discharged before the expiry of the period for which he has been committed, the Government may by order direct that the person so detained be released subject to such restrictions and conditions, if any, as may be specified in the order.

9.Rule making power.--The Government may by notification and subject to the condition of previous publication, make rules for carrying into effect the provisions of this Act.

(Emphasis by us)

PIL 24/2018 Page 7 of 196

08. Inasmuch as Section 2(a)(v) refers to soliciting money or fee or

gifts for a purpose authorized by any law or authorized in the 'prescribed

manner' by the District Magistrate, we may also extract hereunder the

relatable Rules prescribed in the Jammu& Kashmir Prevention of Beggary

Rules, 1964, (referred to as the Rules, 1964) which have been framed in

exercise of powers conferred by Section 9 of the Jammu & Kashmir Act of

1960. Rule 3 thereof, which prescribes the manner of authorizing persons

under Section 2(a)(v), reads as follows:

"3. Manner of authorising Persons under Section 2 (a)(v)-

(1) A person desiring to solicit or receive money or food or gifts for any purpose shall apply for a permit to the District Magistrate. The application shall contain the following particulars, namely:-

(a) full name of the applicant;

(b) his age;

(c) his occupation;

(d) his address;

(e) the period, the purpose and the manner of collection of money, food or gifts;

(f) the method of its disposal and the area within which the disposal is to be made.

(2) The District Magistrate may, after making such enquiry as he deems fit, issue a permit in Form 'A' appended to these rules subject to such conditions as he may think necessary to impose.

(3) The permit holder shall carry the permit with him while soliciting or receiving money, food, or gifts and shall, on demand by a Police Officer, produce it for inspection. (4) A breach of any of the conditions of a permit shall render the permit liable to cancellation.

(5) If the District Magistrate is of opinion that a permit should not be issued to the applicant, he shall as soon as possible inform the applicant accordingly.

(Emphasis supplied)

PIL 24/2018 Page 8 of 196

09. We may also extract Rules 4, 5, 6, 7, 8, 9 and 10 hereunder

which prescribe the manner in which a person detained is to be treated. The

same read as follows:

"4. Manner of keeping persons arrested.-(1) The Officer-in- Charge of a Police Station shall cause a person arrested under Section 4, until he can be brought before a Court, to be kept at the Police Station apart from other persons in custody therein:

Provided that nothing in this sub-rule shall require his being kept apart from persons kept at the Police Station in pursuance of this sub-rule.

(2) No person shall in pursuance of sub-rule (1) be kept with a person not of the same sex:

Provided that nothing in this sub-rule shall apply to a child under fourteen years of age.

5. Procedure of summary inquiry under Section 5.-(1) So far as may be, the procedure prescribed in the Code Criminal Procedure, Samvat 1989, for the trial of summons cases, and for recording evidence therein shall be followed in making an inquiry under sub-section (1) of Section 5.

6. Cleansing and medical examination of persons detained.-

(1) Every person detained in a Sick Home, Beggars' Home or a Children Home shall:-

(a) submit to-

(i) preliminary medical examination and such medical dressing as may in the opinion of the Medical Officer be necessary and who will record the findings thereof in Form 'B' or Form 'C' as may be necessary;

(ii) such trimming or shaving of the hair on any part of the person as may in the opinion of the Medical officer be necessary, for the administration of medical treatment or for securing cleanliness and health;

(iii) thorough cleansing and washing of the body with such materials as may be provided and the complete removal of clothing in order to secure this object;

(b) wear such clothes as the Officer-in-Charge of the Home may from time to time direct.

(2) Without prejudice to the provisions of these rules, the minimum physical force necessary may be used to secure compliance with all or any of the provisions of sub-rule (1).

7. Person remanded by Court to be kept separate.--A person received in a Sick Home, Beggars' Home or a Children Home on remand by a Court shall in such Home, as far as possible, be

PIL 24/2018 Page 9 of 196 kept apart from persons undergoing a term of detention and shall be allowed all reasonable facilities in connection with the hearing of his case.

8. Articles found on search and inspection to be entered in register.-(1) In every Sick Home, Beggars' Home and Children Home a register of money, valuables and other articles found with or on persons received therein shall be maintained. (2) On a person being received in such Home, the money, valuables and other articles found with or on him on search and inspection and taken possession of, shall be entered in such register, and the entries relating to him shall be read over to him and in token of the correctness of such entries, his signature or thumb impression obtained in the presence of the Officer-in-Charge of the Home:

Provided that-

(a) if the property consists of obscene pictures or literature or perishable articles of trivial value, the same should be destroyed;

(b) the clothing and bedding or other articles of such persons shall be destroyed if the Officer-in-Charge consider it essential on hygienic grounds or if the clothing and bedding is ragged; and the clothing, bedding and other articles of persons found to be suffering from any contagious disease shall be destroyed by burning.

(3) Entries shall be made in such register showing in respect of every such search:-

(a) particulars of articles, if any, destroyed, sold or stored;

(b) in the case of articles sold, the amount realized from them; and

(c) the payment to him of the amounts mentioned in clause (b).

(4) No person on the staff of the Home should purchase any property sold under these rules.

(5) All entries in such register shall be attested by the Officer-

in-Charge of the Home.

9. A person detained in a Sick Home, Beggars' Home and Children Home shall not:--

(a) refuse to receive any training arranged or ordered for him or do the work allotted to him;

(b) manufacture any article without the knowledge or permission of the Officer-in-Charge of the institution;

(c) misbehave or quarrel with any other inmate;

PIL 24/2018 Page 10 of 196 (d) do or omit to do any act with intent to cause to himself any illness, injury or disability;

(e) cause any disturbance or violence or omit to assist in suppressing any disturbance;

(f) do any act or use any language calculated to hurt or offend the feelings and prejudices of a fellow inmate;

(g) commit a nuisance or any act of indecency in any part of the institution or refuse to obey any orders issued for proper sanitation;

(h) leave without permission the working party to which he is assigned or the part of the premises or grounds in or at which he may be required to be present at any particular time;

(i) refuse to eat food prescribed by the diet scale or willfully destroy any food.

10. The following articles shall be prohibited to be consumed or used in a Sick Home, Beggars' Home and Children Home :--

(i) Alcohol;

(ii) Bhang, ganja and opium;

(iii) Drugs of every description;

(iv) Matches and materials for producing fire;

(v) Any implements capable of causing hurt or facilitating escape;

(vi) Implements of gambling

(vii) Any other article specified in this behalf by the Officer-in-

Charge of the institution by his order."

(Emphasis by us)

(II) Petitioner's contentions

10. Mr Suhail Rashid Bhat, the petitioner and a young lawyer who

appears in person, has filed this writ petition in this Court laying the

challenge to the constitutional validity of the Jammu & Kashmir Prevention

of Beggary Act, 1960, as well as the Rules being the Jammu & Kashmir

Prevention of Beggary Rules, 1964 on multifold submissions. In order to

explain the rights impacted by the legislation, it is submitted by Mr Bhat,

that the Constitution of India was made applicable to the State of Jammu &

Kashmir by the Constitution (Application to Jammu & Kashmir) Order of

PIL 24/2018 Page 11 of 196 1954. All Fundamental Rights as contained in Part-III of the Constitution of

India stood extended to the State with certain exceptions in respect of

preventive detention laws and land reform legislations. In this regard, Mr

Bhat has also placed reliance on Section 10 of the Constitution of Jammu &

Kashmir which guarantees all rights under the Constitution of India. It is the

petitioner's submission that, therefore, a conjoint reading of the Constitution

(Application to Jammu & Kashmir) Order of 1954 and Section 10 of the

Constitution of Jammu & Kashmir give a twofold protection to the citizens

of India, who are also permanent residents of Jammu and Kashmir.

11. So far as the challenge to the statutory provisions are

concerned, Mr Bhat has vehemently urged that the very preamble of the

enactment which reads as "an act for preventing beggary and making

beggars good citizens" presumes every beggar not to be a good citizen. The

submission is that the expression "good citizen" is not defined and that the

object of the Act is not simply to criminalize the act of begging but to target

groups and communities whose pattern of life do not fit with the perception

of what constitutes "good citizens".

Mr Bhat has also urged that prevention of begging necessarily and

entwins the twin intentions that "nobody should beg" as well as "nobody

should need to beg".

12. Placing reliance on the pronouncement of the Supreme Court of

India in the judgment reported at AIR 1960 SC 554 Hamdard Dawakhana

v. Union of India and others, it is urged that while considering a challenge

to the vires of an enactment, what is to be ascertained is the true character of

PIL 24/2018 Page 12 of 196 the legislation, for which purpose regard has to be had to the enactment as a

whole which includes its objects, purpose, intention as well as the scope and

effect of the provisions and what they are directed against as well as what

they aim to achieve.

13. A strong challenge has been laid to the definition of "begging"

as contained in Section 2 of the Act contending that the same is so broad,

covering not just a specific act or activity but an entire way of life. Mr Bhat

has referred to this legislation as being of a classist character; which

envisions public places as exclusionary and closed to those who appear poor.

Mr Bhat has referred to the impact of the legislation as sensitizing from the

public sphere, those "who are not like us" as undesirable.

The contention is that the legislation has reserved public places

for the use of what the preamble of the statute has labelled as "good

citizens". Thus, persons who are perceived as poor, the legislation has

rendered the constitutional guarantee of inclusiveness as not existing.

14. The petitioner challenges the definition of begging as contained

in Section 2(a) of the Act also on the ground that it is violative of Article 14

for the reasons and grounds which are bunched together hereafter.

Submission that classification not based on intelligible differentia nor has rational relation to the object of the legislation

(i) It is urged that the definition clause makes no distinction between

"voluntary" and "involuntary" begging; that it also takes in

homelessness within its ambit; fails to distinguish between those who

solicit and those who simply receive alms thereby criminalizing the

PIL 24/2018 Page 13 of 196 behaviour of those who simply receive a charitable donation without

actively seeking it as well as those giving alms and the submission is

that the classification in the enactment is not based on any intelligible

differentia nor does it have any rational/ reasonable relation to the

object sought to be achieved by the Act. Mr Bhat has contended that

for this reason the legislation must fail the arbitrariness test as laid

down by the Supreme Court in its pronouncement reported at (1974) 4

SCC 3 E.P. Royappa vs. State of Tamil Nadu & Anr and AIR 1952

SC 75 The State of West Bengal v. Anwar Ali Sarkar.

(ii) An important ground is pressed by Mr Bhat when it is urged that

Section 2(a)(iv) denies equal treatment between those "having no

visible means of subsistence" and those "having visible means of

subsistence" but are likely to subsist by receiving alms. Mr Bhat has

referred to the baggage handler, gate keepers, security guards and

waiters amongst others who, apart from their salary, survive with the

tips received from customers and guests. Tips, it is urged, are akin to

"alms", yet receipt of tips is not criminalized.

(iii) Mr Bhat has also, in the passing, assailed the legality of the statute on

the ground that it fails to take into consideration the fact that several

religions encourage receiving of alms while at the same time promote

giving of alms. The submission is that the Act fails to treat equally

those with no such religious ideology and those with the religious

obligation who request for alms and render an act of charity as illegal.

PIL 24/2018 Page 14 of 196

(iv) The petitioner also challenges the constitutionality of Section 2(a)(iii)

on the ground that it denies equal treatment between the disabled and

able bodied thereby preventing the society from seeing the real heart;

a matter of significant public interest.

(v) On the same ground, the petitioner has assailed the vires of Section

2(a)(iv) on the ground that it denies equal treatment between those

who have "having no visible means of subsistence" and "wandering

about or remaining in any public place" "in such condition or manner

as makes it like that the person does so exists by soliciting alms" and

those who have "no visible means of subsistence". The submission is

that this classification is not only arbitrary but also irrational. It is also

not based on characteristics which are to be found in all the persons

grouped together and not others who are left out.

(vi) The submission is that the attempt of the legislation is to target

shifting populations in the State whose changing movements and

patterns render them "invisible" to the Administration/State. Urging

that targeting such individuals/ groups/ communities was central to

the colonial legislations and that there is no place for such legislation

under a Constitution with the aim of ensuring justice, liberty, equality

and fraternity to all.

(vii) The legislation has excluded from public places such persons who are

soliciting or receiving alms or have no visible means of subsistence. It

has labelled these persons as offenders and mandated their

confinement to "homes" after a truncated summary judicial procedure.

PIL 24/2018 Page 15 of 196

(viii) Mr Bhat has stanchly contended that the characteristics in these

statutory provisions clearly fail to have any reasonable relation to the

object of the legislation. The provision, it is submitted, treats

differently those who 'look wealthy' as against those 'who look poor'.

(ix) Sections 2(a)(i) and 2(a)(ii) also fail to treat individuals and

organizations equally in relation to soliciting alms. The law allows the

private organizations who solicit alms but criminalizes private

individuals from doing so which is indicative of the suggestion that

the legislation is not concerned about the harms caused by begging

but is seeking to conceal a social problem from legitimate criticism of

the government.

Challenge on ground of vagueness of legislation

(x) The petitioner submits that Section 2(a)(i) incorporates the expression

"under any pretence" which is extremely vague and does not permit

the police to determine whether a person accused under the enactment

may be actually providing a service or whether they are begging.

Section 2(a)(iii) denies equal treatment between the disabled and the

able bodied.

(xi) Mr Bhat, the petitioner, has placed reliance on the principles laid

down by the Supreme Court of the United States in the judgment

reported at 408 US 104 (1972) Grayned v. City of Rockford, and

drawn our attention again to the definition of begging under Section

2(a) of the statute. It is submitted that the definition suffers from

vagueness as it lays down no reasonable standards to define the guilty

PIL 24/2018 Page 16 of 196 in the statute which creates a penal offence. Mr Bhat submits that no

clear guidance is given to law abiding citizens or to the authorities and

the courts and, therefore, being vague, has to be voided as being

arbitrary and unreasonable.

(xii) An important vacuum in the legislation has been highlighted before

us. It has been pointed out that the statute is so vague that it

criminalizes the act of beggary even when compelled but does not

criminalize organized/ forced beggary. Mr Bhat would urge that as a

result, one could safely conclude that a person is a "good citizen" if he

compels a person to beg but the victim is rendered a criminal and not

a "good citizen" under the Act.

(xiii) Additionally, it is urged that criminal law requires two basic elements

of a crime; one is the actus reus i.e. the act itself and, the other is

mens rea i.e. the guilty mind. Mr Bhat would urge that while "to beg"

is an act, however, there is a complete absence of a "guilty mind" in

the act of begging. Mr Bhat would contend that no person begs out of

choice or takes a conscious decision to beg but is compelled to do so

on account of circumstances driven by necessity. The criminalization

of begging is assailed on the ground that it runs contrary to the basic

theory of criminal law i.e. "Actus Reus Non Facit Reum Nisi Mens Sit

Rea"

Violation of rights under Article 19 of the Constitution.

(xiv) An important challenge has been laid by Mr Bhat on the ground that

soliciting of alms is largely a verbal request or expression which is

PIL 24/2018 Page 17 of 196 essentially a form of speech. Having "no visible means of

subsistence"; "wandering or remain"; "existing by soliciting or

receiving alms" as well as "exposition of injury, deformity or disease"

is urged to be, either expressly or impliedly, an expression of despair.

It is submitted that all the above expressions, including exposure of

hurt and disability for the purposes of receiving alms, by their very

nature fall within the scope of freedom of expression which is

guaranteed under Article 19 of the Constitution of India. The

submission is that curtailment of such freedom of expression by

criminalization of the act or omission and imprisonment for the same,

is not a reasonable restriction and in any case is highly

disproportionate. The contention is that such criminalization runs

contrary to the express protection of freedom of speech and

expression guaranteed by Article 19 of the Constitution of India and

has to be declared as unconstitutional and accordingly struck down.

(xv) Mr Bhat would urge that the definition as contained in Section

2(a)(iv) of the Statute and its other provisions interdicts the freedom

of a person to move freely through the territory of India.

Violation of Article 21

(xvi) Placing reliance on the pronouncement of the Supreme Court reported

at (1980) 2 SCC 360 Jolly George Verghese v. Bank of Cochin, the

petitioner contends that poverty ipso facto can never be a crime and

that an act of begging is the normal response of an individual who

finds it impossible to survive. It is submitted that the legal provisions

PIL 24/2018 Page 18 of 196 which have the effect of criminalizing begging, therefore, are in the

teeth of Article 21 of the Constitution of India.

(xvii) Mr Bhat has drawn our attention to the pronouncement of the

Supreme Court reported at (1990) 1 SCC 520 Shantistar Builders v.

Narayan Khimalal Totame & Ors; (1993) 1 SCC 645 Uni Krishnan

JP v. State of Andhra Pradesh; (1997) 2 SCC 83 State of Punjab v.

Mohinder Singh, and AIR 1984 SC 802 Bandhua Mukhti Morcha v.

Union of India and others, wherein the Supreme Court has

interpreted the fundamental right to life under Article 21 of the

Constitution of India. Mr Bhat has submitted that the State is duty

bound to ensure a meaningful right to life to all citizens. If the State

fails to ensure these basic rights and people are existing in complete

penury and indigency, then in such an eventuality the legislation

which criminalizes an action of a citizen to ensure his or her survival,

which is begging, is rendered violation of the right to life of an

individual under Article 21 of the Constitution of India.

(xviii) On the issue of the impact of the legislation, it is urged that the statute

compels a person to choose between committing a crime to be

rehabilitated under the legislation or not committing the crime and

starving. The law, therefore, puts an individual into a cruel

dichotomous situation where an individual has to choose between his

right to life or to be criminal, completely against the constitutional

spirit.

PIL 24/2018 Page 19 of 196

Violation of due process

(xix) Placing reliance on the pronouncement of the Supreme Court reported

at AIR 1978 SC 597 Maneka Gandhi v. Union of India; AIR 1978

SC 1675 Sunil Batra v. Delhi Administration, AIR 1979 SC 745 Sita

Ram v. State of U. P. and AIR 1980 SC 1579 Sunil Batra v. Delhi

Administration (II), it is urged that the Jammu and Kashmir

Prevention of Beggary Act, 1960, provides for summary detention

provisions which are violative of the "due process" guaranteed under

into Article 21 of the Constitution of India.

(xx) It has lastly been contended that the legislation under challenge

actually has the effect of treating individuals as subjects to be

controlled and administered rather than right bearing citizens;

conferring draconian powers over beggars.

Challenge to the order dated 23rd May, 2016 of the District Magistrate.

(xxi) Mr Bhat has assailed the order dated 23rd May, 2016, of the District

Magistrate, Srinagar, seeking to remove the presence of beggars from

public places as their presence embarrasses the State in the eyes of

domestic and foreign tourists.

Reliance on judicial precedent

(xxii) Mr Bhat has also placed reliance on a Division Bench judgment of the

Delhi High Court, of which one of us (Gita Mittal, CJ) was a member,

dated 8th August, 2018, rendered in Writ Petition (Civil) 10498/2009

Harsh Mander v. Union of India and Writ Petition (Civil) 1630/2015

Karnika Sawhney reported at AIR 2018 Del 188 whereby similar

PIL 24/2018 Page 20 of 196 provisions of Bombay Prevention of Begging Act, 1959, as extended

to Delhi, which did not withstand constitutional scrutiny, were

declared unconstitutional and struck down.

III-Respondents submissions

15. Per contra, appearing for the respondents, Mr Sheikh Feroz

Ahmad, learned Dy.AG, has heavily relied on the counter affidavit which

has been filed by the respondents. Mr Sheikh has urged that the provisions

of the Jammu & Kashmir Prevention of Beggary Rules are not punitive as

they enable beggars to undergo a training to earn livelihood in future. It is

submitted that restrictions which are necessary to maintain law and order in

the groups of people who are lodged in the homes are imposed which are

not violative of any fundamental or constitutional rights of the individuals

who are so lodged. It has been further explained that the preamble of the

enactment explains that the law has been made to prevent begging and to

make beggars good citizens.

16. The respondents have submitted in the counter affidavit that

Jammu & Kashmir receives a large number of tourists from outside State/

Country and begging often causes annoyance to the visitors by the persons

who have adopted begging as a profession.

17. We also find reference in the counter affidavit to the statement

on behalf of the respondents that the object of the law is to undermine acts

of begging as some organized gangs are exploiting children and force

them to go for begging. Some people kidnap children and force them to go

for begging and collect huge amount of money. According to the

PIL 24/2018 Page 21 of 196 respondents, the act of begging that actually happens is so systemized and

is practiced as a profession.

18. Mr Sheikh defends the order dated 23rd May, 2016 passed by

the District Magistrate, Srinagar, submitting that the same has been passed

pursuant to powers conferred upon the District Magistrate by the Jammu &

Kashmir Prevention of Beggary Act read with Section 61 of the Code of

Criminal Procedure.

19. So far as the establishment of Beggars Homes is concerned, Mr

Sheikh would explain that directions were passed in PIL 23 of 2013

Parimoksh Seth v. State of J&K and others, regarding creation of Beggar

Homes. Consequently, the Social Welfare Department by its order dated 14 th

January, 2015, established Beggar Homes.

20. It stands stated by the respondents that rules stand notified in

exercise of the power conferred under Section 9 of the Act by way of SRO

12 dated 9th January, 1965 to achieve the objects of the law.

21. Mr Sheikh has placed heavy reliance on Rule 3 of SRO 12,

whereby a person desiring to solicit or receive money/ food or gift for any

purpose can apply for permission to do so and grant of a permit to the

District Magistrate. Mr Sheikh submits that after making such enquiry as

deemed fit, the District Magistrate would issue the permit in Form "A". It

has been submitted that the District Magistrate, in the enquiry, ascertains the

economic conditions of the person and other circumstances and then issues

the permit. He further submits that once a permit is issued in Form "A"

such person may solicit or receive money, food or gifts. Thus, it is defended

PIL 24/2018 Page 22 of 196 that the Act and the Rules framed thereunder in fact provide a mechanism to

solicit money/ food items under the permit so that the person genuinely in

need of help can solicit the money.

22. So far as detention, training and employment is concerned, the

respondents have submitted that the same is undertaken with the aim to

rehabilitate beggars and remove beggars from their current illegal

profession.

23. The statutory provisions are defended as being regulatory in

nature and that the law has been enacted with a laudable object. The

respondents contend that in case the Act and the Rules are declared

unconstitutional, this area would remain unregulated.

24. Placing reliance on the well settled principle that there is a

presumption of validity attached to legislation, it is urged that the law under

challenge is constitutionally and legally valid.

IV- Rights of residents of the State of Jammu & Kashmir

25. In the present case the petitioner has laid a substantive

challenge to the constitutionality of the Jammu and Kashmir Prevention of

Beggary Act, 1960 as also the Jammu & Kashmir Prevention of Beggary

Rules, 1964, primarily for the reason that they violate the fundamental rights

guaranteed under Part-III of the Constitution of India.

26. Before dwelling on the challenge, we may advert to the rights

which are assured to the residents of the State of Jammu & Kashmir.

PIL 24/2018 Page 23 of 196

27. Mr Suhail Rashid Bhat has also drawn our attention to the

provisions of Jammu & Kashmir Constitution (Application to Jammu &

Kashmir) Order of 1954.

28. By virtue of the Constitution (Application to Jammu and

Kashmir) Order, 1954, Part III of the Constitution of India, was made

applicable to Jammu and Kashmir. Article 14, 20 & 21 were made

applicable without any modification. However, Article 19 was made

applicable subject to following modification:

29. In Article 19, for a period of [twenty-five] years] from the

commencement of this Order: (i) in clauses (3) and (4), after the words "in

the interests of", the words "the security of the State or" shall be inserted; (ii)

in clause (5), for the words "or for the protection of the interests of any

Scheduled Tribe", the words "or in the interests of the security of the State"

shall be substituted; and (iii) the following new clause shall be added,

namely:- `(7) The words "reasonable restrictions" occurring in clauses (2),

(3), (4) and (5) shall be construed as meaning such restrictions as the

appropriate Legislature deems reasonable.

30. In view of the provisions of the Constitution (Application to

Jammu & Kashmir) Order of 1954, all fundamental rights as are contained in

Part-III of the Constitution of India stood extended to the State of Jammu &

Kashmir with exceptions with regard to preventive detention laws and land

reform legislations.

31. In this regard, reference is also required to be made to Section

10 of the Constitution of Jammu & Kashmir which reads as follows:

PIL 24/2018 Page 24 of 196

"10. Rights of the permanent residents The permanent residents of the State shall have all the rights guaranteed to them under the Constitution of India."

32. A conjoint reading of the Constitution (Application to Jammu

& Kashmir) Order of 1954 and Section 10 of the Constitution of Jammu &

Kashmir the rights guaranteed under Part-III of the Constitution of India are

ensured to the citizens of India who are also permanent residents of Jammu

and Kashmir.

(V) Scope of Judicial Review

33. We may briefly advert to the permissibility of an examination

of the challenge to an enactment on the ground of violation of constitutional

provisions. In this regard, reference may usefully be made to the

observations of Khanna, J. in the judgment reported at (1974) 1 SCC 549

State of Punjab v. Khan Chand, which reads thus:

"12. It would be wrong to assume that there is an element of judicial arrogance in the act of the Courts in striking down an enactment. The Constitution has assigned to the Courts the function of determining as to whether the laws made by the Legislature are in conformity with the provisions of the Constitution. In adjudicating the constitutional validity of statutes, the Courts discharge an obligation which has been imposed upon them by the Constitution. The Courts would be shirking their responsibility if they hesitate to declare the provisions of a statute to be unconstitutional, even though those provisions are found to be violative of the Articles of the Constitution. Articles 32 and 226 are an integral part of the Constitution and provide remedies for enforcement of fundamental rights and other rights conferred by the Constitution. Hesitation or refusal on the part of the Courts to declare the provisions of an enactment to be unconstitutional, even though they are found to infringe the Constitution because of any notion of judicial humility would in a large number of cases have the effect of taking away or in any case eroding the remedy provided to the aggrieved parties by the Constitution. Abnegation in matters affecting one's own

PIL 24/2018 Page 25 of 196 interest may sometimes be commendable but abnegation in a matter where power is conferred to protect the interest of othersagainst measures which are violative of the Constitution is fraught with serious consequences. It is as much the duty of the courts to declare a provision of an enactment to be unconstitutional if it contravenes any article of the Constitution as it is theirs to uphold its validity in case it is found' to suffer from no such infirmity."

(Emphasis by us)

34. We may also advert to the following observations on this issue

made by Dr. D. Y. Chandrachud, J. in his concurring judgment in (2018) 10

SCC 1 Navtej Singh Johar, v. Union of India (para 521):

"521.The power to enact legislation in the field of criminal law has been entrusted to Parliament and, subject to its authority, to the State Legislatures. Both Parliament and the State Legislatures can enact laws providing for offences arising out of legislation falling within their legislative domains. The authority to enact law, however, is subject to the validity of the law being scrutinised on the touchstone of constitutional safeguards. A citizen, or, as in the present case, a community of citizens, having addressed a challenge to the validity of a law which creates an offence, the authority to determine that question is entrusted to the judicial branch in the exercise of the power of judicial review. The Court will not, as it does not, in the exercise of judicial review, second guess a value judgment made by the legislature on the need for or the efficacy of legislation. But where a law creating an offence is found to be offensive to fundamental rights, such a law is not immune to challenge. The constitutional authority which is entrusted to the legislatures to create offences is subject to the mandate of a written Constitution. Where the validity of the law is called into question, judicial review will extend to scrutinising whether the law is manifestly arbitrary in its encroachment on fundamental liberties. If a law discriminates against a group or a community of citizens by denying them full and equal participation as citizens, in the rights and liberties granted by the Constitution, it would be for the Court to adjudicate upon validity of such a law."

(Emphasis by us)

PIL 24/2018 Page 26 of 196 Thus, the power of this Court to go into the issue of

constitutionality of the provisions of the Jammu & Kashmir Prevention of

Beggary Act, 1960, and the Rules framed thereunder cannot be doubted.

(VI) Historical analysis and the rationale behind the legislation

35. The practice of giving alms to others including beggars was and

is still considered a virtuous act. Traditionally, giving of "bhiksha" (alms) is

popular in Hinduism, Jainism and Buddhism. Buddhists valorize begging by

noble persons for the reason that it enables them to imbibe humility and

empowers them to break all forms of material bondage. The Muslim religion

believes in "Zakat" which means charity. In the middle ages, even in Europe

and Britain, beggary was an accepted practice of providing succor to the

needy, an act considered to be at par with prayer. The focus subsequently

changed to assessments of character and of the deservedness of a beggar.

Slowly this further led to a consideration of whether those not working were

fraudulent and immoral. During the Victorian era beggary was considered to

embody laziness and moral degeneration. It is a fact that begging is not only

a universal issue but is an age-old social phenomenon. However,

criminalization of begging is a development of colonial construction.

36. Beggary came to be banned by enacting laws for "maintaining

order" since the period of Athelstan and Canute to Henry the VIII. These

prohibitory laws were enacted with the intent of providing the feudal lords

with agricultural labour and compelling able-bodied people to work.

37. Break up of feudal estates in England led to labour shortages

which resulted in enactment of statutes of labourers designed to stabilize the

PIL 24/2018 Page 27 of 196 labour migration by prohibiting increases in wages and prohibiting the

movement of workers from their home areas in search of improved

conditions. Later vagrancy laws were enacted which treated beggars as

criminals. These laws were based on the perception and continued in the

belief that people without stable means of support may pose a threat to the

stability of the society and are likely to get involved in criminal activities.

This legislation of the 14th and 15th centuries was based on the economic

purpose of retention of labour by protecting the interests of the ruling class;

ensuring that only the disabled had the opportunity to beg and a perception

that the legislation would keep a check on public order and crime.

These were the reasons for enactment of the Vagrancy Act,

1824 which made begging a crime in England, which is still in force.

38. It was in the 1920's that begging was for the first time

criminalized in British India. This was part of the ethos in which efforts

were made to subjugate certain communities imputing criminality to them.

(as the Criminal Tribes Act, 1871 notified in India). West Bengal came up

with the first law, followed by Mysore and then Madras.

39. In a post dated 10th August, 2018, by Gautam Bhatia

"Something of freedom is yet to come": the significance of the Delhi High

Court's decriminalization of beggary (https://indconlawphil.wordpress.

com/2018/ 08/10something-of-freedom-is-yet-come-the-significance-of-the-

delhi-high-courts-decriminalisation-of-beggary), reference is made to the

vicious colonial logic that underlay the entire family of laws noting that the

Anti-Beggary Act was a late post colonial entrant. The Beggary Acts are

PIL 24/2018 Page 28 of 196 referred to as "the most worst and most enduring legacies of colonialism in

a criminal legal system". The article notes that the Criminal Tribes Act was

repealed in the 1950's but other similar laws as the Habitual Offenders Act,

the vagrancy statutes, the Anti-Beggary laws to various sections of the IPC

which continued to exist.

40. By 1947, eighteen Indian states had laws criminalizing beggary.

Even in the post-colonial era, this very law came to be updated as the

Bombay Prevention of Begging Act, 1959 which was extended to all Indian

states including, in 1960, to the Union Territory of Delhi.

41. It is noteworthy that the Jammu & Kashmir State legislature

enacted the "Jammu & Kashmir Prevention of Beggary Act, 1960", which

was applicable to the entire State of Jammu and Kashmir, received the assent

of the Sadar-i-Riyasat on 16th October, 1960 and was published in the

Government Gazette on 6th December, 1960. The Act became enforceable

on 01.01.1965 within the municipal limits of cities of Jammu and Srinagar

and Town Area Committees of Udhampur, Kathua, Baramulla, Anantnag,

Sopore, Katra, Jammu by Notification No.SRO 298, dated 16.09.1964.

It is this law which stands assailed in this writ petition.

42. It is important to note that there is no single national legislation

dealing with beggary in India.

(VII) What is begging and reasons for it

43. Several terminologies have been used to describe persons who

beg which includes beggars; panhandlers; mendicancy; tramps; rough

sleepers and cadgers (commonly called the homeless). Beggars have also

PIL 24/2018 Page 29 of 196 been found to be defined as street beggars which comprises individuals

including children, the elderly, disabled and even families making a living

by begging on streets and in public spaces. Public spaces include shopping

and commercial areas, religious spaces as temples, churches and mosques.

44. At this stage it becomes necessary to understand why do people

beg? Several discourses and discussions on the subject would show that

beggars have been considered in three distinct categories; the first being

those for whom begging is a vocation; the second comprises of those who

are forced into begging; while the third consists of those who beg due to

circumstances.

45. Those for whom begging is a vocation have been observed to

be connected with interested and influential groups who actively engage to

obtain acquittal of beggars when arrested. People who are forced into

begging is a category which includes kidnapped children; victims of force,

oppression and exploitation. The third category is that of those who beg due

to circumstances which includes people who are weak and vulnerable and

live life on the edge, struggling for a means of livelihood.

46. A Single Bench decision of the High Court of Delhi reported at

(2007) 137 DLT 173 Ram Lakhan v. State, considered the reasons behind

begging. Amongst the reasons enlisted, the learned Judge had observed that

a person may beg "because he is down-right lazy and doesn't want to work";

or "he may be an alcoholic or a drug-addict in the hunt for financing his next

drink or dose"; or "he may be at the exploitative mercy of a ring leader of a

PIL 24/2018 Page 30 of 196 beggary gang". It was also observed that "there is also the probability that he

may be starving, homeless and helpless".

47. Efforts to prepare data banks of beggars have received much

criticism. In an article captioned "Ostensible Poverty, Beggary and the

Law" (Economic and Political Weekly November 1, 2008), Dr. Usha

Ramanathan while commenting on the excesses of the law and the

inadequacy of preparation of a personal data bank of beggars, has observed

as follows:

"In a system where people in conditions of poverty are numerous; the state system offers no social security or opportunity for overcoming economic redundancy, nor does it desist from implementing policies that render many unemployable; where rehabilitation and training have never been pursued; where the state's willingness and capacity to aid the ostensibly poor stands seriously depleted - what would a roster of the ostensibly poor do?"

48. Several authors have considered begging and homelessness

synonymously. However, it is unanimously concluded that begging and

homelessness are indicators of abject, chronic poverty.

49. We may briefly dwell on the causes of poverty and the

conditions in which the poor are compelled to survive. There is never a

single reason leading to creation of poverty but various interlocking factors.

Causes of poverty may vary according to gender, age, culture and other

social and economic contests. As per research by Swati Chauhan, a Senior

Family Court Judge in Maharashtra (published in https://tiss.edu/vievo/

6/projects/koshish-projects/publications/) even the World Bank has noted

these causes. Poverty generally implies inadequate infrastructure and

inability to access basic social services of education and health. It often

PIL 24/2018 Page 31 of 196 includes living in areas without hygienic facilities or potable water rendering

poor people much more susceptible to illness and disease resulting in high

mortality rates. According to Ms Chauhan, these elements as leading to

poverty are the subject matter of reports of the United Nation.

The various perspectives of poverty thus primarily include

social exclusion, relative deprivation and lack of capability as well as

capacity or the poor.

50. In a Joint Report on Social Inclusion 2004, the European

Commission defined a person living in poverty thus "people are said to be

living in poverty if their income and resources are so inadequate as to

preclude them from having a standard of living considered acceptable in the

society in which they live. Because of their poverty they may experience

multiple disadvantages through unemployment, low income, poor housing,

inadequate health care and barriers to lifelong learning, culture, sport and

recreation. They are often excluded and marginalized from participating in

activities (economic, social and cultural) that are the norm for other people,

and their access to fundamental rights may be restricted"

51. Poverty has been measured and construed on several parameters

which have included ability to meet minimum number of calories; minimum

level of income to satisfy needs; deprivation of different aspects of standards

of living; material and social.

52. In India, the practice of begging is inextricably linked to

poverty. Other reasons could be unemployment; illiteracy; ignorance or the

pressure on public resources on account of increasing population; unfair

PIL 24/2018 Page 32 of 196 distribution of wealth; homelessness; problem of social structures and

economic mismanagement; lack of work opportunities; decline in public

assistance; the structure and administration of Government support; lack of

affordable housing; addiction disorders and mental illness. It includes those

who have no access to education; or social protection, may be victims of

discrimination based on caste and ethnicity; invariably would be landless,

may be facing physical and mental challenges as well as isolation.

53. Unlike the common perception, or for that matter, the

legislative presumption, people thus beg on the street not because they desire

to do so but because of the ultimate need. The presumptions against the

beggars (of laziness etc) necessarily overlooks the fact that it is impossible

for even educated and trained people to always find employment. Begging is

their last resort to procure subsistence, as they have no other means to

survive. Beggary is a manifestation of the fact that the person has fallen

through the socially created net. It is evidence of the fact that the State has

failed to ensure that all citizens have even the basic essential facilities.

Judicial notice can be taken of the hard reality that the State has not been

able to ensure these bare necessities of the right to life to all its citizens.

54. Swati Chauhan, in her aforesaid research, has extensively

developed the 'broken window theory' relating to the linkage which is

presumed between beggary, homelessness and crime. This unfortunate

perception has encouraged the criminalization of beggary.

55. Reference stands made in Section 2(a)(iv) of the Jammu & Kashmir Prevention of Beggary Act, 1960, to "having no visible means of subsistence" as a fault of the individual who has to be excluded. We find that

PIL 24/2018 Page 33 of 196 thereby, statutorily, the expression "beggar" is used to create an 'economic other' as differentiated from those who are in a position to earn money through work. Beggary is perceived as demeaning. A meaning stands assigned to the word to signifynot being able to find subsistence for survival and not being able to work and not being able to access official social protection access.

Thus, several factors, as discussed above, cumulatively contribute to the reason why a person may beg.

(VIII)What is entailed in begging-whether any recognized right is involved?

56. The Preamble of the Jammu & Kashmir Prevention of Beggary

Act, manifests that beggars exist and beggary is prevalent in Jammu &

Kashmir.

57. The notion that begging as defined in Section 2(a) is a crime

stands created by the legislature under Section 3 of the Act of 1960. It is a

notion that is used by the authorities to exercise power over the "have nots".

It enables those in power to actually use the resourceless position of the poor

to further deprive them. Does the act of begging involve any constitutional

and legal rights of the person begging? Does criminalization thereof result in

violations of these rights? What is the manner in which a person could be

implicated under the law?

58. Let us undertake an examination of these aspects first and

foremost. In the State of Jammu & Kashmir, rights stand guaranteed to all

residents under Section 19 & 23 of the Constitution of Jammu & Kashmir. It

requires to be examined as to whether the existence of begging also

manifests failure of the Government to discharge its constitutional duty

PIL 24/2018 Page 34 of 196 under Section 13 of the State Constitution. The working of the rights

guaranteed under the State Constitution and the responsibility of the State

are important issues which also arise for consideration.

59. The definition of begging under Section 2(a) of the Jammu &

Kashmir Prevention of Beggary Act, 1960, amongst others, refers to the

expression "soliciting alms" (in Section 2(a)(i)).

60. The expressions 'beg', 'solicit' and 'alms' used in the statute,

have not been defined in the law. Reference can usefully be made to the

dictionary meaning of the expressions 'beg', 'solicit' and 'alms'. We extract

hereunder the meaning of these expressions as assigned in several English

dictionaries:

Definition of 'beg' Macmillan Dictionary Intransitive/ Transitive Verb

1. To ask people for money or food, usually because you are very poor.

Merriam Webster Dictionary Intransitive Verb

1. To ask for alms, children begging on the streets; Transitive Verb

2. To ask for as a charity, begging food from strangers, begged him for some change.

Collins Dictionary

1. If someone who is poor is begging, they are asking people to give them food or money.

Cambridge English Dictionary Intransitive/ Transitive Verb

1. To ask for food or money because you are poor.

Oxford Dictionary 10th Edition Verb

1. Ask someone earnestly or humbly for something;

PIL 24/2018 Page 35 of 196

2.Ask for food or money as charity.

Definition of 'solicit/soliciting'

Merriam Webster Dictionary: (Solicit) Verb

1. To make petition to : entreat;

2. To entice or lure especially into evil Oxford Dictionary 10th Edition: (Solicit) Verb

1. Ask for or try to obtain (something) from some (Ask for something from)

Definition of 'alms'

Noun

1. Money, food or clothes given to poor.

Merriam Webster Dictionary Noun

1. Something (such as money or food) given freely to relieve the poor

2. Distributing alms to the needy.

Collins Dictionary Noun

1. Alms are gifts of money, clothes, or food to poor people. Cambridge English Dictionary Noun

1. Clothing, food or money that is given to the poor people. Oxford Dictionary 10th Edition Noun

1. (In historical context) Charitable donations of money or food to the poor;

All the dictionaries give the same meaning for these

expressions.

61. Commonly, begging has been defined as conduct by which a

person seeks assistance, either by asking for food, clothing, money, or,

PIL 24/2018 Page 36 of 196 expressing need through clear form of communication which may include a

sign, a donation cup or utensil or even an outstretched hand. The beggar's

solicitations may include out pouring of their pathetic condition, showering

of blessings etc., sometimes it may include social or political solicitations or

exhortations. Often, without any element of a spoken word, the very

presence of an impoverished person, holding out his or her hand or a utensil

to receive a donation, by itself conveys a message that he is in need of

support and assistance.

Begging, thus, undoubtedly involves communication of some kind

conveying the plight of the beggar. Such communication could be verbal or

by actions. It could be even by mere physical presence, when, by his very

pitiable appearance, the needs of a beggar are conveyed to the viewer.

62. The act of begging thus entails nothing more than peaceful

communication with strangers, verbally or non-verbally, conveying a request

for assistance. Such communicative activity is necessarily part of the

valuable right of freedom of speech and expression guaranteed to all under

Article 19(1)(a) of the Constitution of India.

63. As noted above, the definition of begging refers to "soliciting

alms", exposing wounds for extorting alms, having no visible means of

subsistence. It, therefore, implies persons of financial penury begging for

sustenance. In other words, persons' who survive on alms. Criminalizing

their act of begging would thus impact their basis of their very existence,

that is to say, their constitutionally protected right to life under Article 21 of

the Constitution of India.

PIL 24/2018 Page 37 of 196

64. The legislation in question has grouped together all persons

who are found or perceived to be begging or soliciting alms, whether

voluntary or involuntarily, as one composite class. Thereby it has included

persons who are compelled to beg on account of extreme need and

deprivation along with those who have been compelled by organized

syndicate into begging.

At the same time, the legislation has drawn a distinction and

carved out a group which is permitted to beg. The rationality of these

classifications has to be tested on the ground as to whether it meets the well

settled tests laid down under Article 14 of the Constitution of India. Thus,

violation of rights guaranteed under Article 14 of the Constitution of India

would also require to be considered in the present consideration.

Therefore, we are required to examine the statute and the Rules

thereunder from the perspective of ensuring the guarantees under Articles

14, 19 and 21 of the Constitution of India.

(IX) Inter-relationship of the fundamental rights guaranteed under Part-III of the Constitution of India.

65. In the instant case, a challenge has been laid to the Jammu &

Kashmir Prevention of Beggary Act, 1960, on the ground that it violates the

fundamental rights guaranteed under Articles 14, 19 and 21 of the

Constitution of India.

66. A view stood taken in AIR 1950 SC 27 A.K. Gopalan v. State

of Madras, that fundamental rights must be seen in watertight compartments

and therefore a challenge under Article 14 has to be viewed separately from

PIL 24/2018 Page 38 of 196 a challenge under Article 19 was upset by an eleven Judge Bench of the

Supreme Court in (1970) 1 SCC 248 : AIR 1970 SC 564 Rustom Cavasjee

Cooper v. Union of India, which view was followed in AIR 1978 SC 597

Maneka Gandhi v. Union of India.

67. The issue of inter relationship between several fundamental

rights guaranteed under Part III of the Constitution has been the subject

matter of consideration before the Supreme Court of India. In the judgment

reported at (1978) 1 SCC 248 Maneka Gandhi v. Union of India, the

Supreme Court considered the inter relationship between Articles 14, 19 and

21. Referring to the change in perception on this issue and principles laid

down in several judicial precedents, the Supreme Court had laid down inter

relationship in the following terms:

"5.........We shall have occasion to analyse and discuss the decision in R. C. Cooper's case a little later when we deal with the arguments based on infraction of Articles 19(1) (a) and 19 (1) (g), but it is sufficient to state for the present that according to this decision, which was a decision given by the full Court, the fundamental rights conferred by Part III are not distinct and mutually exclusive rights. Each freedom has different dimensions and merely because the limits of interference with one freedom are satisfied, the law is not freed from the necessity to meet the challenge of another guaranteed freedom. The decision in A. K. Gopalan's (supra) case gave rise to the theory that the freedoms under Articles 19, 21, 22 and 31 are exclusive-each article enacting a code relating to the protection of distinct rights, but this theory was over-turned in R. C. Cooper's case (supra) where Shah, J., speaking on behalf of the majority pointed out that "Part III of the Constitution weaves a pattern of guarantees on the texture of basic human: rights. The guarantees delimit the protection of those rights in their allotted fields: they do not attempt to enunciate distinct rights." The conclusion was summarised in these terms: "In our judgment, the assumption in A. K. Gopalan's case that certain articles in the Constitution exclusively deal with specific matters cannot be accepted as correct". It was hold in R. C. Cooper's case and that is clear

PIL 24/2018 Page 39 of 196 from the judgment of Shah, J., because Shah, J., in so many terms disapproved of the contrary statement of law contained in the opinions of Kania, C. J., Patanjali Sastri, J., Mahajan, J., Mukherjee, J., and S. R. Das, J., in A. K. Gopalan's case that even where a person is detained in accordance with the procedure prescribed by law, as mandated by Article 21, the protection conferred by the various clauses of Article 19(1) does not cease to be available to him and the law authorising such detention has to satisfy the test of the applicable freedom under Article 19, clause (1). This would clearly show that Articles 19(1) and 21 are not mutually exclusive, for, if they were, there would be no question of a law depriving a person of personal liberty within the meaning of Article 21 having to meet the challenge of a fundamental right under Article 19(1). Indeed, in that event, a law of preventive detention which deprives a person of 'personal liberty' in the narrowest sense, namely, freedom from detention and thus falls indisputably within Art. 21 would not require to be tested on the touchstone of clause (d) of Article 19 (1) and yet it was held by a Bench of seven Judges of this Court in Shambhu Nath Sarkar v. The State of West Bengal & Ors.

[(1973) 1 SCC 856 : AIR 1973 SC 1425] that such a law would have to satisfy the requirement inter alia of Article 19 (1), clause (d) and in Haradhan Saha v. The State, of West Bengal &Ors.,[(1975) 1 SCR 778 : (1975) 3 SCC 198] which was a decision given by a Bench of five judges, this Court considered the challenge of clause (d) of Article 19(1) to the constitutional validity of the Maintenance of Internal Security Act, 1971 and held that that Act did not violate the constitutional guarantee embodied in that article. It is indeed difficult to see on what principle we can refuse to give its plain natural meaning to the expression ' personal liberty' as used in Article 21 and read it in a narrow and restricted sense so as to exclude those attributes of personal liberty which are specifically dealt with in Article

19. We do not think that this would be a correct way of interpreting the provisions of the Constitution conferring fundamental rights. The attempt of the court should be to expand the reach and ambit of the fundamental rights rather than attenuate their meaning and content by a process of judicial construction. The wave length for comprehending the scope and ambit of the fundamental rights has been set by this Court in R. C. Cooper's case and our approach in the interpretation of the fundamental rights must now be in tune with this wave, length. We may point out even at the cost of repetition that this Court has said in so; many terms in R. C. Cooper's case that each freedom has different dimensions and there may be overlapping between different fundamental rights and therefore it is not a' valid argument to say that the expression 'personal liberty' in Article 21 must be so interpreted as to avoid overlapping between that article

PIL 24/2018 Page 40 of 196 and Article 19(1). The expression 'personal liberty' in Article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have been raised to the status of distinct fundamental rights and given additional protection under Article

19............."

6. We may at this stage consider the inter-relation between Article 21 on the one hand and Articles 14 and 19 on the other. We have already pointed out that the view taken by the majority in A. K. Gopalan's case war,. that so long as a law of preventive detention satisfies the requirements of Article 22, it would be within the terms of Article 21 and it would not be required to meet the challenge of Article 19. This view proceeded on the assumption that "certain articles in the constitution exclusively deal with specific matters" and where the requirements of an article dealing with the particular matter in question are satisfied and there is no infringement of the fundamental right guaranteed by that article, no recourse can be had to a fundamental right conferred by another article. This doctrine of exclusivity was seriously questioned in R. C. Cooper's case and it was over-ruled by a majority of the Full Court, only Ray, J., as he then was, dissenting. The majority judges held that though a law of preventive detention may pass the test of Article 22, it has yet to satisfy the requirements of other fundamental rights such as Article 19. The ratio of the majority judgment in R. C. Cooper's case was explained in clear and categorical terms by Shelat, J., speaking on behalf of seven judges of this Court in Shambhu Nath Sarkar v. State of West Bengal (supra). The learned Judge there said (SCC p.879):

"In Gopalan's case (supra) the majority court had held that Article 22 was a self-contained Code and therefore a law of preventive detention did not have to satisfy the requirement of Articles 19, 14 and 21. The view of Fazal Ali, J., on the other hand, was that preventive detention was a direct breach of the right under Article 19 (1)

(d) and that a law providing for preventive detention. had to be subject to such judicial review as is obtained under clause (5) of that Article. In R. C. Cooper v. Union of India, (supra) the aforesaid premise, of the majority in Gopalan's case (supra) was disapproved and therefore it no longer holds the field. Though Cooper's case (supra) dealt with the inter-relationship of Article 19 and Article 31, the basic approach to construing the fundamental rights guaranteed in the different provisions of the Constitution adopted in this case held the major premise

PIL 24/2018 Page 41 of 196 of the majority in Gopalan's case (supra) to be incorrect."

Subsequently, in Haradhan Saha v. State of West Bengal & Ors. (supra) also, a Bench of five Judges of this Court, after referring to the decisions in A. K. Gopalan's case and R. C. Cooper's case, agreed that the Maintenance of Internal Security Act, 1971, which is a law of preventive detention, has to be tested in regard to its reasonableness with reference to Article

19. That decision accepted and applied the ratio in R. C. Cooper's case and Shambhu Nath Sarkar's case and proceeded to consider the challenge of Article 19 to the constitutional validity of the Maintenance of Internal Security Act, 1971 and held that the Act did not violate any of the constitutional guarantees enshrined in Art. 19. The same view was affirmed once again by a Bench of four judges of this Court in Khudiram Das v. The State of West Bengal &Ors.[(1975) 2 SCC 81)] Interestingly, even prior to these decisions, as pointed out by Dr. Rajive Dhawan, in his book : "The Supreme Court of India :" at page 235, reference was made, by this court in Mohd. Sabir v. State of Jammu and Kashmir [(1972) 4 SCC 558] to article 19(2) to justify preventive; detention. The law, must, therefore, now be taken to be well settled that Article 21 does not exclude Article 19 and that even if there is a law prescribing a procedure for depriving a person of 'personal liberty' and there is consequently no infringement of the fundamental right conferred by Article 21, such law, in so far as it abridges or takes away any fundamental right under Article 19 would have to meet the challenge of that article. This proposition can no longer be disputed after the decisions in R. C. Cooper's case, Shambhu Nath Sarkar's case and Haradhan Saha's case. Now, if a law depriving a person of 'personal liberty' and prescribing a procedure for that purpose within the meaning of Article 21 has to stand the test of one or more of the fundamental rights conferred under Article 19 which may be applicable in a given situation, ex-hypothesi it must also be liable to be tested with reference to Article 14. This was in fact not disputed by the learned Attorney General and indeed he could not do so in view of the clear and categorical statement made by Mukharjea, J., in A. K. Gopalan's case that Article 21 "presupposes that the law is a valid and binding law under the provisions of the Constitution having regard to the competence of the legislature and the subject it relates to and does not infringe any of the fundamental rights which the Constitution provides for", including Article 14.xxxxxxxxxxxx"

(Emphasis by us)

PIL 24/2018 Page 42 of 196

68. On the interplay of the fundamental rights and that they are to

be read along with one another, we must also advert to the pronouncement

of the Constitution Bench judgment of the Supreme Court reported at (2014)

9 SCC 737 Mohd. Arif v. Supreme Court of India, wherein the court

placing reliance on Maneka Gandhi, held as follows:

"27. The stage was now set for the judgment in Maneka Gandhi [Maneka Gandhi v. Union of India, (1978) 2 SCR 621: (1978) 1 SCC 248]. Several judgments were delivered, and the upshot of all of them was that Article 21 was to be read along with other fundamental rights, and so read not only has the procedure established by law to be just, fair and reasonable, but also the law itself has to be reasonable as Articles 14 and 19 have now to be read into Article 21. [See at SCR pp. 646-48: SCC pp. 393-95, paras 198-204 per Beg, C.J., at SCR pp. 669, 671-74 & 687: SCC pp. 279-84 & 296-97, paras 5-7 & 18 per Bhagwati, J. and at SCR pp. 720-23 : SCC pp. 335-39, paras 74-85 per Krishna Iyer, J.]. Krishna Iyer, J. set out the new doctrine with remarkable clarity thus:(SCR p. 723: SCC pp. 338-39, para 85) "85. To sum up, 'procedure' in Article 21 means fair, not formal procedure. 'Law' is reasonable law, not any enacted piece. As Article 22 specifically spells out the procedural safeguards for preventive and punitive detention, a law providing for such detentions should conform to Article 22. It has been rightly pointed out that for other rights forming part of personal liberty, the procedural safeguards enshrined in Article 21 are available. Otherwise, as the procedural safeguards contained in Article 22 will be available only in cases of preventive and punitive detention, the right to life, more fundamental than any other forming part of personal liberty and paramount to the happiness, dignity and worth of the individual, will not be entitled to any procedural safeguard save such as a legislature's mood chooses."

28. Close on the heels of Maneka Gandhi case [Maneka Gandhi v. Union of India, (1978) 2 SCR 621: (1978) 1 SCC 248] came Mithu v. State of Punjab [(1983) 2 SCC 277: 1983 SCC (Cri) 405], in which case the Court noted as follows:

(SCC pp. 283-84, para 6) "6. ... In Sunil Batra v. Delhi Admn. [(1978) 4 SCC 494: 979 SCC (Cri) 155], while dealing with

PIL 24/2018 Page 43 of 196 the question as to whether a person awaiting death sentence can be kept in solitary confinement, Krishna Iyer J. said that though our Constitution did not have a "due process" clause as in the American Constitution; the same consequence ensued after the decisions in Bank Nationalisation case [Rustom Cavasjee Cooper (Banks Nationalisation) v. Union of India, (1970) 1 SCC 248] and Maneka Gandhi case [Maneka Gandhi v. Union of India, (1978) 2 SCR 621:

(1978) 1 SCC 248] ....

In Bachan Singh [Bachan Singh v. State of Punjab, (1980) 2 SCC 684: 1980 SCC (Cri) 580] which upheld the constitutional validity of the death penalty, Sarkaria J., speaking for the majority, said that if Article 21 is understood in accordance with the interpretation put upon it in Maneka Gandhi [Maneka Gandhi v. Union of India, (1978) 2 SCR 621 : (1978) 1 SCC 248], it will read to say that: (SCC p. 730, para 136) '136. "No person shall be deprived of his life or personal liberty except according to fair, just and reasonable procedure established by valid law." The wheel has turned full circle. Substantive due process is now to be applied to the fundamental right to life and liberty."

(Emphasis by us)

69. This judgment importantly has also pointed out that the

substantive due process is part of Article 21 and it is to be read with Articles

14 and 19 of the Constitution of India.

70. On this very aspect, we may also advert to the Constitution

Bench judgment of the Supreme Court reported at (1978) 4 SCC 494 Sunil

Batra v. Delhi Administration & Ors., wherein a challenge was laid to

Section 30(2) of the Prisons Act, which required that the prisoner under a

sentence of death shall be placed under solitary confinement. The Supreme

Court read down the sub-section (2) of Section 30 and expounded on the

PIL 24/2018 Page 44 of 196 word "law" in the expression "procedure established by law" article 21

holding as follows:

"228..........The word "law" in the expression "procedure established by law" in Article 21 has been interpreted to mean in Maneka Gandhi's case (supra) that the law must be right, just and fair, and not arbitrary, fanciful or oppressive. Otherwise it would be no procedure at all and the requirement of Article 21 would not be satisfied. If it is arbitrary it would be violative of Article 14. Once Section 30(2) is read down in the manner in which we have done, its obnoxious element is erased and it cannot be said that it is arbitrary or that there is deprivation of personal liberty without the authority of law."

(Emphasis by us)

71. The interplay between the requirements of Article 14, 19 and 21

stands considered in this case in the judgment of Krishna Iyer, J., in para 52

(at page 518 of the SCC) whence his lordship stated as follows:

"52. True, our Constitution has no 'due process' clause or the VIII Amendment; but, in this branch of law, after R.C. Cooper v. Union of India, (1970) 1 SCC 248 and Maneka Gandhi v. Union of India, (1978) 1 SCC 248, the consequence is the same. For what is punitively outrageous, scandalizingly unusual or cruel and rehabilitatively counter-productive, is unarguably unreasonable and arbitrary and is shot down by Articles 14 and 19 and if inflicted with procedural unfairness, falls foul of Article 21."

(Emphasis by us)

72. In the same context, we may usefully refer to the discussion by

R. F. Nariman, J., in the judgment reported at (2017) 9 SCC 1 Shayara

Bano v. Union of India and others, wherein his lordship has summed up the

principles from the two Constitution Bench judgments in Sunil Batra and

Mithu and held that "Article 14 has been referred to in the context of the

constitutional invalidity of statutory law to show that such statutory law will

be struck down if it is found to be "arbitrary".

PIL 24/2018 Page 45 of 196

Nariman, J., has further observed as follows:

"84.......Arbitrariness in legislation is very much a facet of unreasonableness in Articles 19(2) to (6), as has been laid down in several Judgments of this Court, some of which are referred to in Om Kumar (infra) and, therefore, there is no reason why arbitrariness cannot be used in the aforesaid sense to strike down legislation under Article 14 as well."

(Emphasis by us)

73. It is, therefore, well settled that the fundamental rights

guaranteed under Part-III of the Constitution of India are not to be read

independently or in isolation but each one of them is to be read along with

others. Our consideration as to whether Jammu & Kashmir Prevention of

Beggary Act violates the rights of any person under Articles 14, 19 and 21 of

the Constitution are not to be considered in isolation. The law itself has to

satisfy the tests of reasonableness in order to make available the guarantees

under Article 14 and 19 of the Constitution of India and the procedure

prescribed by the law has to be just, fair and reasonable as is mandated by

Article 21. We shall consider the legislation in question from these

perspectives.

(X) Whether the legislation curtails any of the right guaranteed under Article 19 of the Constitution

74. Is communication of his plight by speech or action to seek

alms, protected under any constitutional provision? Is such communication

in public places so protected? We may advert to the Article 19(1)(a) of the

Constitution of India which guarantees freedom of speech and expression.

Article 19 of the Constitution of India provides the following guarantees:

"19. Protection of certain rights regarding freedom of speech, etc.-(1) All citizens shall have the right-

(a) to freedom of speech and expression;

PIL 24/2018 Page 46 of 196 xxxxx

(d) to move freely throughout the territory of India;

(e) to reside and settle in any part of the territory of India;

(g) to practise any profession, or to carry on any occupation, trade or business."

Are the above rights absolute or can they be curtailed?

75. The power of the State to restrict the rights guaranteed under Article 19(1) and extent thereof is provided under Article 19(2) which reads thus:

"19(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law impose reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with Foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence."

(Emphasis supplied)

76. The importance of freedom of speech and expression from the

perspective of the liberty of the individual as well as the State has been held

to be of paramount importance in several judicial precedents including AIR

1950 SC 124 Romesh Thapar v State of Madras; AIR 1962 SC 305 Sakal

Papers (P) Ltd. v. Union of India, (Constitutional Bench); (1972) 2 SCC

788 Bennett Coleman & Co. v. Union of India; (2010) 5 SCC 600 S.

Khushboo v. Kanniamal.

77. It is necessary to examine the contours of the expression

"freedom of speech and expression" as guaranteed under Article 19(1)(a)

and the Article 19(2). So far as this expression and restrictions thereon are

concerned, the enunciation of the principles by R.F. Nariman, J, in the

PIL 24/2018 Page 47 of 196 judgment reported at (2015) 5 SCC 1 Shreya Singhal v. Union of India,

explains this concept completely when it has been stated thus:

"13. This leads us to a discussion of what is the content of the expression "freedom of speech and expression". There are three concepts which are fundamental in understanding the reach of this most basic of human rights. The first is discussion, the second is advocacy, and the third is incitement. Mere discussion or even advocacy of a particular cause howsoever unpopular is at the heart of Article 19(1)(a). It is only when such discussion or advocacy reaches the level of incitement that Article 19(2) kicks in. It is at this stage that a law may be made curtailing the speech or expression that leads inexorably to or tends to cause public disorder or tends to cause or tends to affect the sovereignty & integrity of India, the security of the State, friendly relations with foreign States, etc.xxxxxxxxxxxx"

(Emphasis by us)

78. We have extracted heretofore Article 19(2) of the

Constitution of India which is recognition of the power of the State to make

any law imposing reasonable restrictions on the exercise of the right

conferred by Article 19(1)(a).However, Article 19(2) mandates that for such

restrictions to be reasonable, they must be necessary in the interests of the

sovereignty and integrity of India; the security of the State; friendly relations

with foreign states; public order, decency or morality or in relation to

contempt of court, defamation or incitement to an offence. Thus, the offence

created by a law, by operation of Article 19(2) has to have a proximate

relationship to any of these eight subject matters as are contained in Article

19(2).

79. The Constitutional scheme which enables curtailment of

freedom of speech has been the subject matter of several judicial precedents.

In the judgment of the Supreme Court reported at AIR 1962 SC 305 Sakal

Papers (P) Ltd. v. Union of India, the Supreme Court has in the following

PIL 24/2018 Page 48 of 196 terms stated that it was not open to the State to curtail freedom of speech to

promote the general public interests or better enjoyment of another freedom:

"It may well be within the power of the State to place, in the interest of the general public, restrictions upon the right of a citizen to carry on business but it is not open to the State to achieve this object by directly and immediately curtailing any other freedom of that citizen guaranteed by the Constitution and which is not susceptible of abridgment on the same grounds as are set out in clause (6) of Article 19. Therefore, the right of freedom of speech cannot be taken away with the object of placing restrictions on the business activities of a citizen. Freedom of speech can be restricted only in the interests of the security of the State, friendly relations with foreign State, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. It cannot, like the freedom to carry on business, be curtailed in the interest of the general public. If a law directly affecting itis challenged, it is no answer that the restrictions enacted by it are justifiable under clauses (3) to (6).For, the scheme of Article 19 is to enumerate different freedoms separately and then to specify the extent of restrictions to which they may be subjected and the objects for securing which this could be done. A citizen is entitled to enjoy each and every one of the freedoms together and clause (1) does not prefer one freedom to another. That is the plain meaning of this clause. It follows from this that the State cannot make a law which directly restricts one freedom even for securing the better enjoyment of another freedom. All the greater reason, therefore for holding that the State cannot directly restrict one freedom by placing an otherwise permissible restriction on another freedom."

(Emphasis by us)

80. In AIR 1960 SC 633 Superintendent Central Prison v.

Ram Manohar Lohia, the Supreme Court explained the expression "in the

interest of" as appears in Article 19(2) in the following terms;

".........We do not understand the observations of the Chief Justice to mean that any remote or fanciful connection between the impugned Act and the public order would be sufficient to sustain its validity. The learned Chief Justice was only making a distinction between an Act which expressly and directly purported to maintain public order and one which did not expressly state the said purpose but left it to be implied there

PIL 24/2018 Page 49 of 196 from; and between an Act that directly maintained public order and that indirectly brought about the same result. The distinction does not ignore the necessity for intimate connection between the Act and the public order sought to be maintained by the Act.

............. The restriction made "in the interests of public order" must also have reasonable relation to the object to be achieved, i.e., the public order. If the restriction has no proximate relationship to the achievement of public order, it cannot be said that the restriction is a reasonable restriction within the meaning of the said clause..........The decision, in our view, lays down the correct test. The limitation imposed in the interests of public order to be a reasonable restriction, should be one which has a proximate connection or nexus with public order, but not one far-fetched, hypothetical or problematical or too remote in the chain of its relation with the public order..........

..............There is no proximate or even foreseeable connection between such instigation and the public order sought to be protected under section. We cannot accept the argument of the learned Advocate General that instigation of a single individual not to pay tax or dues is a spark which may in the long run ignite a revolutionary movement destroying public order."

(Emphasis supplied)

It is noteworthy that the reference in the above extract to the

observations of the Chief Justice stands made with regard to those of Das,

CJ in 1957 SCR 860 Ramji Lal Modi v. State of UP.

81. On this aspect in the judgment of the Supreme Court reported at

(1969) 1 SCC 853 Mohd. Faruk v. State of M.P., in para 10, the Supreme

Court had observed thus:

"..........The Court must in considering the validity of the impugned law imposing a prohibition on the carrying on of a business or profession, attempt an evaluation of its direct and immediate impact upon the fundamental rights of the citizens affected thereby and the larger public interest sought to be ensured in the light of the object sought to be achieved, the necessity to restrict the citizen's freedom, the inherent pernicious nature of the act prohibited or its capacity or tendency to be harmful to the general public, the possibility of achieving the object by imposing a less drastic restraint, and

PIL 24/2018 Page 50 of 196 in the absence of exceptional situations such as the prevalence of a state of emergency-national or local-or the necessity to maintain essential supplies, or the necessity to stop activities inherently dangerous, the existence of a machinery to satisfy the administrative authority that no case for imposing the restriction is 2019-08-20 made out or that a less drastic restriction may ensure the object intended to be achieved."

(Emphasis supplied)

82. In yet another decision of the constitutional bench of the

Supreme Court reported at AIR 1962 SC 1166 Kameshwar Prasad v. State

of Bihar, a challenge was made to Rule 4A of the Bihar Government

Servants Conduct Rules, 1956, which prohibited Government servants from

participating in any demonstration or from resorting to any form of strike in

connection with any matter pertaining to the conditions of service. This rule

was challenged on account of infraction of rights guaranteed under Article

19(1)(a) and (b) of the Constitution of India. Following the principles laid

down in Ram Manohar Lohia, the Constitutional Bench accepted the

challenge. The court examined the question as to whether the ban imposed

was reasonable restriction in the interest of public order observing as

follows:

"17................The threat to public order should therefore arise from the nature of the demonstration prohibited. No doubt, if the rule were so framed as to single out those types of demonstration which were likely to lead to a disturbance of public tranquillity or which 'Would fall under the other limiting criteria specified in Art. 19(2) the validity of the rule could have been sustained. The vice of the rule, in our opinion, consists in this that it lays a ban on every type of demonstration--be the same however innocent and however incapable of causing a breach of public tranquillity and does not confine itself to those forms of demonstrations which might lead to that result."

(Emphasis by us)

PIL 24/2018 Page 51 of 196

83. We may also usefully extract the observations of the Bench in

para 5 of the judgment in Kameshwar Prasad regarding the width of the

prohibition imposed by the rule under examination and the approach which

the court must adopt while examining the constitutionality of such a rule.

"5............The approach to the question regarding the constitutionality of the rule should be whether the ban that it imposes on demonstrations would be covered by the limitation of the guaranteed rights contained in Art. 19(2) and 19(3). In regard to both these clauses the only relevant criteria which has been suggested by the respondent-State is that the rule is framed -in the interest of public order". A demonstration may be defined as "an expression of one's feelings by outward signs". A demonstration such as is prohibited by, the rule may be of the most innocent type- peaceful orderly such as the mere wearing of a badge by a Government servant or even by a silent assembly say outside office hours-demonstrations which could in no sense be suggested to involve any breach of tranquillity, or of a type involving incitement to or capable of leading to disorder. If the rule had confined itself to demonstrations of type which would lead to disorder then the validity of that rule could have been sustained but what the rule does is the imposition of a blanket-ban on all demonstrations of whatever type-innocent as well as otherwise-and in consequence its validity cannot be upheld."

(Emphasis supplied)

84. So far as the impact on public order was concerned, in

Kameshwar Prasad, it was held that the remote disturbances of public order

by the demonstration would fall outside the purview of Article 19(2); that

the connection with the public order has to be intimate, real and rational and

should arise directly from the demonstration sought to be prohibited. Most

importantly in para 17, the Court held as follows;

"The vice of the rule, in our opinion, consists in this that it lays a ban on every type of demonstration be the same however innocent and however incapable of causing a breach of public tranquility and does not confine itself to those forms of demonstrations which might lead to that result."

(Emphasis supplied)

PIL 24/2018 Page 52 of 196

85. Restrictions or prohibition which impact the fundamental rights

guaranteed under Article 19(1)(a) must be in the narrowest terms. In the

pronouncement of the Supreme Court reported at AIR 1962 SC 955 Kedar

Nath Singh v. State of Bihar, the constitutionality of Sections 124A and 505

of the Indian Penal Code was called into question on the ground that the

restrictions imposed by the impugned provisions violated the fundamental

right of freedom of speech and expression guaranteed under Article 19(1)(a)

of the petitioner and the restrictions imposed by the impugned provisions

were not within the permissible limits under Article 19(2) of the

Constitution. While examining the constitutionality of the enactment, the

court made certain pertinent observations on the manner in which statutory

provisions are required to be interpreted which facilitate our consideration as

well. In para 26 of the judgment, the court had observed as follows:

"26..........It is well settled that if certain provisions of law construed in one way would make them consistent with the Constitution, and another interpretation would render them unconstitutional, the Court would lean in favour of the former construction. The provisions of the sections read as a whole, along with the explanations, make it reasonably clear that the sections aim at rendering penal only such activities as would be intended, or have a tendency, to create disorder or disturbance of public peace by resort to violence. As already pointed out, the explanations appended to the main body of the section make it clear that criticism of public measures or comment on Government action, however strongly worded, would be within reasonable limits and would be consistent with the fundamental right of freedom of speech and expression. It is only when the words, written or spoken, etc. which have the pernicious tendency or intention of creating public disorder or disturbance of law and order that the law steps in to prevent such activities in the interest of public order. So construed, the section, in our opinion, strikes the correct balance between individual fundamental rights and the interest of public order. It is also well settled that in interpreting an enactment the Court should have regard not merely to the literal meaning of

PIL 24/2018 Page 53 of 196 the words used, but also take into consideration the antecedent history of the legislation, its purpose and the mischief it seeks to suppress vide (1)Bengal Immunity Co. Ltd. v. The State of Bihar, 1955-2 SCR 603 : ((S) AIR 1955 SC 661) and (2) R. M. D. Chamarbaugwalla v. Union of India, 1957 SCR 930 : ((S) AIR 1957 SC 628). Viewed in that light, we have no hesitation in so construing the provisions of the sections impugned in these cases as to limit their application to acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence."

(Emphasis by us)

In this judgment, the Supreme Court held that the impugned

Sections impose restrictions on the fundamental freedom of speech and

expression, but those restrictions cannot but be said to be in the interest of

public order and within the ambit of permissible legislative interference with

that fundamental right and the challenge to the constitutionality of the

provisions was rejected. (para 28).

The permissibility of the prohibitions imposed by the

legislation under consideration before us have to be examined on these tests.

86. In the judgment reported at (2015) 5 SCC 1 Shreya Singhal v.

Union of India, it was observed that, on the construction of Article 19(1)(a),

almost every significant judgment of the Supreme Court has referred to

American case law. In para 15 of Shreya Singhal, the Supreme Court has

noted the distinction between the First Amendment of the US Constitution

when contrasted with Article 19(1)(a) of the Indian Constitution. The

Supreme Court carefully notes firstly the absoluteness, which is exhibited in

the language of the US First Amendment when it states that 'Congress shall

make no law which abridges the freedom of speech'. It was secondly noted

that while the American Constitution speaks of freedom of speech and press

PIL 24/2018 Page 54 of 196 without reference to "expression" whereas Article 19(1)(a) refers to freedom

of speech and expression without any reference to "press". It was observed

thirdly, that under the U.S. Constitution, speech may be abridged while

under the Constitution of India, reasonable restrictions may be imposed and,

fourthly, that under the Constitution of India, the restrictions have to be

proximately related to the eight designated subject matters set out in Article

19(2).

87. In para 18 of Shreya Singhal, the Court observed that the

American judgements have great persuasive value on the content of freedom

of speech and expression and the tests laid down for its infringement. It is

only when it comes to sub-serving the general public interest that there is the

world of a difference with Indian law.

88. So far as the beggary enactments in India are concerned, there

is hardly any jurisprudence available. International perspectives on

prohibitions to begging, prohibitions against the beggars, the homeless,

vagrants and panhandlers, as have been imposed by the Jammu & Kashmir

Act of 1960, have been the subject matter of legislations which have been

subjected to challenges in jurisdictions in different parts of the world. The

outcome of these considerations facilitates consideration of the issue in the

present case. We have therefore undertaken an examination of the

jurisprudence on the issue under consideration from jurisdictions in other

parts of the world.

89. Vagrancy laws were enacted by several states of the United

State of America. Constitutionality of vagrancy laws in various states in the

PIL 24/2018 Page 55 of 196 United States of America have been the subject matter of challenge before

the courts including the Supreme Court of United States of America inter

alia on the ground that the vagrancy laws violated the protection to speech

granted by the First Amendment and also the due process requirements of

the Fourteenth Amendment to the Constitution of the United States of

America.

90. Our attention has been drawn to a pronouncement of the Court

of Appeal of Florida First District reported at 458 So.2d 47; 1984 Fla. App.

LEXIS 15409; 9 Fla.L.Weekly 2217 C.C.B., A Child, v. State of Florida

(judgment of the Court of Appeal of Florida). In this case, the appellant had

challenged the denial of his motion to dismiss a charge against him of

violating Jacksonville, Fla. Municipal Ordinance 330.105 which prohibited

all forms of begging or soliciting alms for an individual's own use. It was

argued that this ordinance was facially unconstitutional as it violated the

freedoms guaranteed under the First Amendment. The challenge was

premised on the submission that the ordinance was overbroad because it

violated all forms of solicitation for alms or charity and that it lacked

precisely drawn standards to prevent the prohibition of activities protected

by the First Amendment.

91. The court placed reliance on certain precedents which shed

valuable light on our consideration as well and deserve to be extracted in

extenso and read as follows:

"In League of Mercy Association, Inc. v. Walt, 376 So. 2d 892 (Fla. 1st DCA 1979)[**3]this Court upheld the validity of the City of Jacksonville's Municipal Ordinance Chapter 404 against the constitutional attack that it did not set forth

PIL 24/2018 Page 56 of 196 sufficient guidelines for the issuance of permits. When read in parimateria with chapter 404, Ordinance 330.105 does not prohibit the established first amendment right of individuals or groups to solicit contributions for religious and charitable purposes but merely validly limits that right by requiring permits. Thus, the ordinance is not overbroad in that sense. However, Ordinance 330.105 is unconstitutionally overbroad by its abridgment in a more intrusive manner than necessary, of the first amendment right of individuals to beg or solicit alms for themselves. The City's alleged legitimate and compelling interest is its duty and responsibility under its police power to control undue annoyance on the streets and public places and prevent the blocking of vehicle and pedestrian traffic. That lofty goal must be measured and balanced against the rights of those who seek welfare and sustenance for themselves, by their own hand and voice rather than by means of the muscle and mouths of others. We have learned through the [**4] ages that "charity begins at home,"

and if so, the less fortunate of our social admixture should be permitted, under our system, to apply self help. This right, nevertheless, must be subject to the state's interest but conditioned upon less intrusive means than absolute preclusion.

We find a dearth of cases in our state to give us guidance and would opine that such scarcity is due to this particular segment of society not having the ability or wherewithal to pursue the challenge. The parties, caught in the same plight, refer us to cases from other jurisdictions which we find to be well reasoned and persuasive in our determinations.

In Goldstein v. Town of Nantucket, 477 F. Supp. 606 (D.Mass. 1979), the court found that a troubadour's public performance of Nantucket's traditional folk music was clearly within the scope of protected first amendment expression. The court recognized that [HN1] the rights to the first amendment [*49] freedoms are not absolute but are subject to the imposition of reasonable and impartial regulations regarding the time, place and manner f public expression. The court found that Nantucket's permit requirements did not contain narrow, objective [**5] or definite standards and therefore they exceeded in their scope the constitutionally permissible grounds for regulating free expression and consequently the ordinance did not pass constitutional muster. The Goldstein case rejected the older view that commercial speech is not to be afforded the same first amendment protection as other types of speech and stated:

"The fact that plaintiff accepts contributions of passersby during his public performance, thus,

PIL 24/2018 Page 57 of 196 does not dilute plaintiff's protection of the first amendment."

Goldstein, at 6069 (Virginia State Board of Pharmacy v. Virginia Consumer Council, 425 U.S. 748, 96 S. Ct. 1817, 48 L.Ed. 2d 346 (1976) in which the court stated:

"[HN2] Speech ...is protected even though it is carried in a form that is "sold" for profit, and even though it may involve a solicitation to purchase or otherwise pay or contribute money."

We find in Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691 53 L.Ed. 2d 810 (1977), the Arizona State Bar's disciplinary rule prohibiting all advertising by attorneys was struck down on the holding that some commercial speech is entitled to first amendment [**6] protection. In people v. Fogelson, 21 Cal. 3d 158, 577 P.2d 677, 145 Cal. Rptr. 542 (1978), a Hare Krishna follower was arrested in an airport for soliciting without a permit pursuant to an ordinance that required a permit before soliciting for oneself or another on ity property. In a footnote, the court recognized the enlarged first amendment protection of commercial speech as discussed in Bates. The court declared that [HN3] the state may reasonably regulate the time, place and manner of engaging in solicitation in public places in order to prevent fraud or undue harassment of passerby. But, in another footnote, the court pointed out that the State must recognize that [HN4] individuals in public places cannot expect the same degree of protection from contact with others as they are entitled to in their own homes. The court found the ordinance unconstitutional on the ground that it contained no standards to guide licensing officials in exercising their discretion to grant or deny applications to solicit on city property. In concurring, one judge stated:

It has been held that [HN5] begging and soliciting for alms do not enjoy absolute constitutional protection. (Ulmer v. Municipal [**7] Court, 55 Cal. App. 3d 263, 127 Cal. Rpt. 445 (1976)).

Xxxxxxxxx Even in Ulmer, the court referred to the comments of the legislative draftsmen noting that the statute was aimed at the conduct of the individual who goes about the streets accosting others for handouts. The comment stated:

"It is framed in this manner in order to exclude from one ambit of the law the blind or crippled person who merely sits or stands by the wayside, the Salvation Army worker who solicits funds for charity on the streets at Christmas time and others whose charitable appeals may well be left to local

PIL 24/2018 Page 58 of 196 control. (2 Assem. J. Appendix (1961 Reg. Sess.) Assem. Interim Com. Rep. (1959-1961) Crim. Proc. Pp.12-13)"

(Ulmer, 55 Cal. App. 3d at 266, 127 Cal. Rptr.

445).

The Ulmer court held that [HN6] regulation of conduct bearing no necessary [**8] relationship to the freedom to speak does not abridge the guarantees of the first amendment. The court stated, however, that the statute in question does not extend to one

".....who merely sits or stands by the wayside."

Walking up to and approaching [*50] another for the purpose of soliciting, as opposed to merely receiving donations, is prohibited by the statute. The manner of approach is thus pertinent."

Ulmer, at 267, 127 Cal. Rpt. 445.

On the basis of the above authorities and upon our own reflection, we find that [HN7] a total prohibition of begging or soliciting alms for oneself is an unconstitutional abridgment of the right to free speech as guaranteed by the first and fourteenth amendments of the Constitution of the United State and article I, section 4 of the Constitution of the State of Florida. No compelling reason justifies that total abridgment. [HN8] Protecting citizens from mere annoyance is not a sufficient compelling reason to absolutely deprive one of a first amendment right. Coates v. Cinicinnati, 402U.S.611, 91 S.Ct. 1686, 29 L.Ed. 2d 214 (1971). Compare also Carter v. Town of Palm Beach, 237 So. 2d 130 (Fla. 1970), in which, [**9] in declaring invalid an ordinance prohibiting the operation of surfboards on the basis that the prohibition was arbitrary and unreasonable, the court rules that [HN9] a municipality, under its police power, may regulate and restrain certain activities which threaten the public health, safety and welfare, but the power to restrain and regulate does not include the power to prohibit an activity which is not a nuisance per se. The court determined that surfing was not a nuisance per se.

We conclude that Municipal Ordinance 330.105 is unconstitutional in that it curbs a first amendment right in a more intrusive manner than necessary. The City of Jacksonville is not entitled to absolutely prohibit a beggar's exercise of his freedom of speech, but the city may regulate that right subject to strict guidelines and definite stands closely related to permissible municipal interest, such as could be imposed by a narrowly drawn permit system. Goldstein; Fogelson. The drafting of such a regulatory ordinance is a task

PIL 24/2018 Page 59 of 196 for the City of Jacksonville and not for this Court. We adopt the view of the Fogelson court, which stated:

"[HN10] This Court should not, and does not, undertake [**10] the essentially legislative task of specifying which of the legitimate municipal interests in regulating solicitations are to be included in permit conditions, nor how such conditions might be drafted."

Fogelson, 145 Cal. Rptr. At 565, 577 P.2d at 700.

Municipal Ordinance 330.105 is stricken as facially unconstitutional and the order of the trial court denying appellant's motion to dismiss the charge against him is reversed."

(Emphasis supplied)

92. Mr Bhat has placed reliance on the pronouncement of the Court

of Appeals for the Second Circuit, United States, reported at 999 F.2d 699;

1993 U.S. App. LEXIS 19725 Jennifer Loper v. The New York City Police

Department. In this case, the court was confronted with a New York Penal

Law § 240.35(1) which prohibited loitering for the purposes of begging. It

was observed that the challenged statute proscribed speech and conduct of a

communicative nature which prohibition violated the First Amendment of

the US Constitution. The court observed that the city, streets and parks were

classified as a traditional public forum which is a category of public property

open for expressive activity of the public, which may be of a limited or

unlimited character. The regulation of expressive activity on public property

must be reasonable and not designed to prohibit the activity merely because

of disagreement with the views expressed. It was held that a regulation that

was neither content neutral nor narrowly tailored was not justifiable as a

proper time, place or manner restriction on protected speech.

PIL 24/2018 Page 60 of 196

93. It was further held in Loper that the statute in no way advances

a substantial and important governmental interest so as to constitute a

reasonable restriction on the freedom of speech. The legislation was found to

suffer from the vice of over breadth and vagueness and that it also enforced

a content-based exclusion. It was held that the regulation was not necessary

to serve a compelling state interest. The regulation was also not content

neutral nor narrowly tailored to serve significant government interest. It did

not leave open alternative channels of communication. It was observed that

"even if the State was considered to have a compelling interest in preventing

the evils sometimes associated with begging, a statute that totally prohibits

begging in all public places cannot be considered "narrowly tailored" to

achieve that end. A total prohibition raises a question whether a statute even

can be said to "regulate" the time, place, and manner of expression but even

if it does, it is not content neutral when it prohibits all speech related to

begging; it certainly is not narrowly tailored to serve any significant

governmental interest, as previously noted, because of the total prohibition

it commands; it does not leave open alternative channels of communication

by which beggars can convey their messages of indigency".

94. In Loper the court concluded as follows:

"The statute that prohibits loitering for the purpose of begging must be considered as providing a restriction greater than is essential to further the government interests listed by the City Police, for it sweeps within its overbroad purview the expressive conduct and speech that the government should have no interest in stifling."

(Emphasis supplied)

PIL 24/2018 Page 61 of 196

95. An ordinance in the petitioner village prohibiting door to door

or on street solicitation of the contributions by charitable organizations that

do not use at least 75 percent of their receipts for "charitable purposes", such

purposes being defined to exclude solicitation expenses, salaries, overhead

and other administrative expenses, was before the U. S. Supreme Court in

the judgment reported at 444 U.S. 620 (1980) Village of Schaumburg v.

Citizens for a Better Environment.

The respondents had challenged the facial validity of the

ordinance on First Amendment grounds. The court held that the ordinance in

question is "unconstitutionally overbroad in violation of the First and

Fourteenth Amendments". It was held that charitable appeals for funds, on

the street or door to door involve a variety of speech interests-

communication of information, dissemination and propagation of views and

ideas and advocacy of causes- that are within the First Amendment's

protection. It was held that while soliciting financial support is subject to

reasonable restriction, such regulation must give due regard to the reality

that the solicitation is characteristically intertwined with informative and

perhaps persuasive speech seeking support for particular causes or for

particular views on economic, political or social issues, and to the reality

that without solicitation the flow of such information and advocacy would

likely to cease. It was also observed that since the charitable solicitation is

not primarily concerned with providing information about the characteristics

and cost of goods, it is not dealt with as a variety of purely speech.

96. It was held that the 75 per cent limitation was a direct and

substantial limitation on protective activity which could not be sustained

PIL 24/2018 Page 62 of 196 unless it served a sufficiently strong, subordinating interest that the

petitioner was entitled to protect. The U.S. Supreme Court found that

prevention of fraud was the Village's principal justification for prohibiting

the solicitation by the charities that spend more than one quarter of their

receipts on salaries and administrative expenses. The other reason projected

by the Village was protecting public safety and residential privacy. The

Supreme Court found these justifications as inadequate. It was observed that

such interests could be better served by a measure less intrusive than a direct

prohibition on solicitation. Fraudulent misrepresentations could be

prohibited and penal laws used to punish such conduct directly. The

Supreme Court failed to perceive any substantial relationship between the 75

percent requirement and the protection of public safety or of residential

privacy. The court struck down the ordinance under challenge.

97. The Supreme Court of Massachusetts in Craig Benefit v. City

of Cambridge & Others 424 Mass. 918 (1997) dealt with a constitutional

challenge to the General Law (Chapter 272, Section 66) which provided that

"persons wandering abroad and begging, or who go about from door to door

or in public or private ways, areas to which the general public is invited, or

in other places for the purpose of begging or to receive alms, and who are

not licensed may be imprisoned for up to six months." The Court concluded

that (a) the peaceful begging engaged in by the plaintiff involves

communicative activity protected by the First Amendment; (b) the criminal

sanction, imposed on that activity by the statute is content based and bans

the activity in traditional public forums, and therefore the statute is subjected

PIL 24/2018 Page 63 of 196 to a strict scrutiny. The Court finally struck down Section 66 of the General

Law stating:

"2. We conclude that (a) the peaceful begging engaged in by the plaintiff involves communicative activity protected by the First Amendment; (b) the criminal sanction, imposed on that activity by G.L.c.272,s.66, is content- and viewpoint-based and bans the activity in traditional public forums; and (c) as a result, the statute is subject to strict scrutiny, a test which it cannot pass.

(a) It is beyond question that soliciting contributions is expressive activity that is protected by the First Amendment. In Schaumburg v. Citizens for a Better Env't, 444 U.S. 620 (1980), the United States Supreme Court struck down an ordinance prohibiting solicitations by charitable organizations that did not use at least seventy-five per cent of their revenues for charitable purposes. The Court held that "charitable appeals for funds, on the street or door to door, involve a variety of speech interests - communication of information, the dissemination and propagation of views and ideas, and the advocacy of causes - that are within the protection of the First Amendment...[S]olicitation is characteristically intertwined with informative and perhaps persuasive speech seeking support for particular causes or for particular views on ....social issues, and ..... without solicitation the flow of such information and advocacy would likely cease." Schaumburg, supra at 632. See United States v. Kokinda, 497 U.S. 720, 725 (1990); riley v. National Fed'n of the Blind of N.C., Inc., 487 U.S. 781, 788(1988); Secretary of State of Md. V. Joseph H. Munson Co., 467 U.S. 947, 961 (1984); Loper v. New York City Police Dep't, 999 F.2d 699, 704 (2d Cir. 1993)."

(Emphasis by us)

98. A constitutional challenge to beggary was also laid before the

Federal Court in Grand Rapids, Michigan, United States (U.S.Court of

Appeal, 6th Cir., 2013) in James Speet and Ernest Sims v. Bill Schuette

No.12-2213. The Federal Court held that begging or the soliciting of alms is

a form of solicitation and speech protected by the First Amendment to the

Constitution. The Court struck down the law prohibiting panhandling as

being overly broad and violative of free speech and equality.

PIL 24/2018 Page 64 of 196

99. In Austria, begging was criminalized under Section 29 of the

Salzburg Land Security enactment. The constitutionality of this provision

was challenged before the Constitutional Court of Austria in Case No.

G155/10 in 2012. The enactment laid a complete ban on all forms of

begging in public places including a prohibition from invoking other

people's plight in public places, say, for instance, the beggars standing or

sitting in the street calling for help from passers by using a sign. It also

banned invoking other people in any unobtrusive and non-aggressive manner

of verbally asking for help. It was held by the Constitutional Court of

Austria that the Act forbids solicitation of financial benefits in public places

of foreign persons and silent forms of begging and was thus violative of the

freedom of communications under Article 10 of the European Convention of

Human Rights. We may usefully extract the relevant observations of the

Court which read as follows:

"The comprehensive prohibition of any kind of begging in public places violates Article 10 of ECHR: According to the settled case law of the Constitutional Court Art 10 ECHR guarantees everyone freedom of communication. The scope of this provision, which includes the right of freedom of opinion and freedom to receive and communicate messages and ideas without interference from public authorities, covers not only pure publicity but also factual statements and advertising. The communication of facts is therefore also subject to the scope of Art 10 ECHR."

(Emphasis by us)

100. Several instances are available of countries where begging has

been completely de-criminalized. In Finland, since 1987, the poor law was

invalidated. This was followed in 2003 when the Public Order Act of

Finland replaced any local government rules and completely decriminalized

begging. In Greece as well, under the original Article 407 of the Greek Penal

PIL 24/2018 Page 65 of 196 Code, begging was punishable by up to 6 months in jail and up to a 3000

Euros' fine. After protests from street musicians in the city of Thessaloniki,

this law was repealed in November, 2018

In Belgium, silent begging is not a crime.

101. The Jammu & Kashmir Prevention of Beggary Act, 1960,

imposes a complete interdiction and prohibition on begging which is the

beggars right of freedom of speech and expression guaranteed under Article

19(1)(a). We have extracted hereinabove the explanation given by the

respondents for enacting the law in question.

102. We have also extracted above the statement made in the

preamble that the law has been enacted for preventing beggary and making

beggars "good citizens".

103. In the Statement of Objects and Reasons, the legislature has

declared that beggary had become a "nuisance" and deserved to be checked.

Additionally, it is stated that some persons adopted this as a profession and

were exploiting the philanthropic instinct though capable of manual labour.

It is further stated that when we are marching towards a welfare State, it is

high time to stop it and that legal measures are required to be adopted.

104. To achieve these objects and reasons, Section 3 of the Statute

has declared begging as offence. After the summary inquiry, under Section

5, if the Court is satisfied that the person detained was found begging, he

shall be declared as a beggar and detained in a sick home, children's home

or beggar's home for a period not less than one year and not more than three

years in the case of first offence.

PIL 24/2018 Page 66 of 196

105. The substantive legislation as well as the rules thereunder do

not take into consideration the circumstances of the persons found begging

or the reasons for the same. What are the qualities required for consideration

to be a good citizen are not disclosed.

106. We have elaborately discussed the circumstances which compel

a person to beg. People have been compelled to beg on account of extreme

financial penury, deprivation and lack of means for sustenance. The

legislation does not establish that the economic status of a beggar, who is

ordered by the court to be put in detention in terms of Section 5, improves

by such detention. What would such a person do for sustenance when he is

released from the detention centre? What makes a beggar a "bad citizen"?

And how detention of the beggar in the home would make a "good citizen"

out of a beggar is not disclosed.

107. We have noticed above that begging would be covered within

the exercise of the freedom of speech and expression of the beggar, a

fundamental right guaranteed under Article 19(1)(a) of the Constitution of

India. Exercise of this right can only be subject to reasonable restrictions in

accordance with the purposes declared under clause 2 of Article 19. Merely

because exercise of the right is perceived as a "nuisance" by some people

would not justify the absolute restriction on exercise of the right by any law

which could be treated as a reasonable restriction permissible under Article

19(2).

108. Before us, it is not disputed that the fundamental rights of

freedom of speech and expression guaranteed by Article 19(1)(a) is not an

PIL 24/2018 Page 67 of 196 absolute right. The right is subject to reasonable restrictions which would

come within the purview of clause 2 of Article 19.

109. It is trite that so far as abridgement of the freedom of speech

and expression is concerned for the restrictions to be considered reasonable

and in order to fall within Article 19(2) of the Constitution of India, must be

couched in the narrowest possible terms or narrowly interpreted so as to

abridge or restrict only what is absolutely necessary.(Ref: (2015) 5 SCC 1 :

Shreya Singhal v. UOI, para 90; AIR 1962 SC 955; AIR 1962 (Supp.) 2

SCR 769 : Kedar Nath Singh v. State of Bihar). An illuminating discussion

on this is to be found in paras 90 to 94 of the Shreya Singhal wherein the

Court has discussed various judicial precedents.

110. So far as the judicial review of the reasonableness of a

restriction as required under Article 19(2) is concerned, in AIR 1951 SC 118

Chintaman Rao v. State of M.P., the Supreme Court has stated as follows;

"6.The question for decision is whether the statute under the guise of protecting public interests arbitrarily interferes with private business & imposes unreasonable & unnecessarily restrictive regulations upon lawful occupations; in other words, whether the total prohibition of carrying on the business of manufacture of bidis within the agricultural season amounts to a reasonable restriction on the fundamental rights mentioned in Art. 19(1)(g) of the Constitution. Unless it is shown that there is a reasonable relation of the provisions of the Act to the purpose in vie, the right of freedom of occupation and business cannot be curtailed by it.

7. The phrase "reasonable restriction" connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public. The word "reasonable" implies intelligent care and deliberation, that is, the choice of a course which reason dictates. Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in

PIL 24/2018 Page 68 of 196 article 19(1)(g) and the social control permitted by clause (6) of article 19, it must be held to be wanting in that quality."

(Emphasis supplied)

111. We have held that begging necessarily entails exercise of the

right of freedom of speech and expression guaranteed under Article 19(1)(a)

of the Constitution of India. Article 19(2) thus enables the respondents only

to regulate a right guaranteed under Art 19(1)(a), subject to strict guidelines

and standards as could be imposed only by narrowly drawn limits. Such

regulation has to be in consonance with the objects laid down in Article

19(2). Is the prohibition imposed by the J&K Prevention of Beggary Act,

1960 protected under Article 19(2) of the Constitution of India?

112. Given the above discussion, it cannot be disputed that the

impugned legislation absolutely interdicts the right to freedom of speech and

expression of beggars. The reasons expounded by the respondents in the

counter affidavit constituting the necessity for enacting the law do not

specifically advert to any of the circumstances detailed in Article 19(2)

which could justify imposition of restrictions on the right conferred under

Article 19(1)(a).

113. The respondents have not asserted that the restrictions were

necessary in the interests of public order or decency or morality in the

community (as permitted by Article 19(2). Though neither pleaded nor urged

before us, is it possible to contend that the stated object of the law as pleaded

by respondents that the Act is intended to undermine the act of begging as

some organized gangs are exploiting children and forcing them to go for

begging, be held to be a permissible restriction in terms of Article 19(2)? PIL 24/2018 Page 69 of 196

114. In the present case, none of the reasons set out in the counter

affidavit, as extracted above, make out even remotely that the necessity for

the restriction or the prohibition imposed by the legislation is to maintain

law and order.

115. Begging may entail only passive and silent communication of

the condition of a beggar and his peaceful entreaty for assistance.

Furthermore, the act of begging stands penalized in the legislation in public

places which are open to all and are not exclusive. It is not explained by the

respondents as to how any of such activity adversely impacts the law and

order situation.

116. We are unable to comprehend as to what would be indecent

about or impacting public order if someone is peacefully saying "I have no

means, I have to eat, please help me".

117. The respondents have suggested also that beggary has become a

"nuisance" and also adverted to beggary as a profession and exploitation of

the philanthropic instinct though capable of manual labour. None of these

reasons can be covered amongst the conditions cited in Article 19(2) which

permit curtailment of the right under Article 19(1)(a).

118. Amongst the reasons cited by the respondents, it has been

stated in the counter affidavit that the provisions of the law enable beggars to

undergo a training to earn a livelihood in future; that the restrictions are

necessary to maintain law and order; that no fundamental or constitutional

rights of the persons lodged in the homes are violated; that Jammu &

Kashmir receives a large number of tourists from outside the State/ country

PIL 24/2018 Page 70 of 196 and begging often causes annoyance to the visitors by such persons;

undermine the act of begging as some organized gangs are exploiting

children and force them to go for begging; the act of begging that actually

happens is so systemized and practiced as a profession. Nothing has been

placed before us to support any of these statements.

119. In the counter affidavit, the respondents have made a bald

statement that beggars undergo training to earn livelihood in future. No

details of the training provided or the outcome thereof is disclosed. What is

the law and order problem which results on account of begging is not also

not disclosed.

120. Other than a backhanded reference in the reply filed by the

respondents, to large number of tourists visiting the State and begging

"often" causing annoyance to the visitors, the respondents have not made

any reference to any specific instance when begging has actually caused

annoyance to the visitors. No empirical study or examination of this issue is

available. The respondents also do not refer to any complaint having been

made by any person in this regard. It also appears that there was no material

placed before the authorities at the time legislation was enacted. These

submissions in the counter affidavit, and as orally pressed before us, are

found to be baseless. Even otherwise "annoyance" to a visitor, or even a

resident of the State, rests on individual sensitivities. What causes irritation

or annoyance to one person, may be a reason for invocation of sympathy, or,

be inconsequential to another. Such perceived "subjective annoyance" to a

casual visitor cannot justify under Article 19(2), a complete prohibition on

the exercise of a right under Article 19(1)(a) of a person.

PIL 24/2018 Page 71 of 196

121. Before us, there is no submission that the activity of the beggars

impacts any of the conditions detailed in Article 19(2) i.e., the sovereignty

and integrity of India or the security of the State or friendly relations with

foreign states or public order or decency or morality. Certainly, the

respondents cannot contend that begging requires to be restricted on the

ground that it has any relation to contempt of court or results in defamation

of any person or results in incitement of an offence.

122. The legislation has been assailed by Mr Suhail Rashid Bhat also

for the reason that Section 2(a)(iv) of the statute and its other provisions

interdict the freedom of a person to move freely through the territory of

India guaranteed under Article 19(1)(d) of the Constitution of India.

123. As discussed hereinabove, Section 2(a)(iv) include "wandering

about" or "remaining in any public place" or "public worship" in such a

condition or manner as it makes likely that a person doing so is soliciting

alms and is "having no visible means of subsistence".

124. Article 19(1)(d) guarantees to all citizens of India the right to

"move freely throughout the territory of India". Article 19(1)(e) ensures to

the citizens the right to "reside and settle in any part of the territory of

India." Section 2(a)(iv) specifically refers to public places. By the very

description public places are meant for the enjoyment of every member of

the public without any exception. Implicit in the impugned legislation is the

intent that it proposes to restrict the Constitutional right of freedom of

movement in such places of the poor and the marginalized. Thus Section

2(a)(iv), by restricting the right of freedom to move freely through the

PIL 24/2018 Page 72 of 196 territory of India, results in violation of their rights guaranteed under Article

19(1)(d) of the Constitution of India and is not sustainable for this reason as

well.

125. The present challenge merits consideration from another angle

as well. Proportionality as a constitutional doctrine has been highlighted

in the pronouncement of the Supreme Court reported at (2001) 2 SCC 386

(at page 400-401) Om Kumar v. Union of India, in the following terms:

"30. On account of a Chapter on Fundamental Rights in Part III of our Constitution right from 1950, Indian Courts did not suffer from the disability similar to the one experienced by English Courts for declaring as unconstitutional legislation on the principle of proportionality or reading them in a manner consistent with the charter of rights. Ever since 1950, the principle of "proportionality" has indeed been applied vigorously to legislative (and administrative) action in India. While dealing with the validity of legislation infringing fundamental freedoms enumerated in Article 19(1) of the Constitution of India -- such as freedom of speech and expression, freedom to assemble peaceably, freedom to form associations and unions, freedom to move freely throughout the territory of India, freedom to reside and settle in any part of India -- this Court has occasion to consider whether the restrictions imposed by legislation were disproportionate to the situation and were not the least restrictive of the choices. The burden of proof to show that the restriction was reasonable lay on the State. "Reasonable restrictions" under Articles 19(2) to (6) could be imposed on these freedoms only by legislation and courts had occasion throughout to consider the proportionality of the restrictions. In numerous judgments of this Court, the extent to which "reasonable restrictions"

could be imposed was considered. In Chintaman Rao v. State of M.P. [AIR 1951 SC 118: 1950 SCR 759] Mahajan, J. (as he then was) observed that "reasonable restrictions" which the State could impose on the fundamental rights "should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public". "Reasonable" implied intelligent care and deliberation, that is, the choice of a course which reason dictated. Legislation which arbitrarily or excessively invaded the right could not be said to contain the quality of reasonableness unless it struck a proper balance between the rights guaranteed and the control permissible under Articles 19(2) to (6). Otherwise, it must be held to be wanting in that

PIL 24/2018 Page 73 of 196 quality. Patanjali Sastri, C.J. in State of Madras v. V.G. Row [AIR 1952 SC 196: 1952 SCR 597: 1952 Cri LJ 966], observed that the Court must keep in mind the "nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time". This principle of proportionality vis-à-vis legislation was referred to by Jeevan Reddy, J. in State of A.P. v. McDowell & Co. [(1996) 3 SCC 709] recently. This level of scrutiny has been a common feature in the High Court and the Supreme Court in the last fifty years. Decided cases run into thousands."

(Emphasis by us)

126. Challenges to legislation on the ground of its impact being

disproportionate to the fact situation which it was attempting to address also

stands considered in several cases. In AIR 2017 SC 4609 Shayara Bano v.

Union of India (in para 272(4) at page 4823), the Supreme Court had

occasion to consider the submission that the proportionality doctrine which

was doubtful even an administrative law should not, therefore, apply to

Article 14 in constitutional law.

The restrictions imposed by the Jammu & Kashmir Prevention

of Beggary Act, 1960, which cast an absolute prohibition on the rights of

persons guaranteed under Article 19(1)(a) have to be held to be the

restrictions as are disproportionate to the object sought to be achieved by the

statute and unsustainable for this reason as well.

127. We hold that the provisions of J&K Prevention of Beggary Act,

1960, unreasonably, unfairly and arbitrarily invades the right of free speech

and expression ensured under Article 19(1)(a) of the Constitution; that it

clearly upsets the balance between the right guaranteed and such reasonable

restrictions that Article 19(2) constitutionally permits as may be imposed on

PIL 24/2018 Page 74 of 196 such right and that such restrictions are not required in the interest of the

public.

128. Looked at from any angle, the restrictions which have been

imposed by the impugned legislation and the curtailment of the right to

freedom of speech and expression of the beggars are disproportionate to the

situation sought to be addressed and in appropriate and therefore are not

saved as permissible regulation under Article 19(2) of the Constitution of

India.

(XI) The definition of begging-its broad sweep and vagueness

129. A staunch challenge has also been laid to the definition of

"begging" as contained in Section 2(a) of the Act on the ground that it is

broad and vague. Before we examine this objection, let us consider the

parameters on which a definition can be so challenged.

130. In a recent pronouncement reported at (2015) 5 SCC 1 Shreya

Singhal v. Union of India, the Supreme Court of India was called upon to

consider the constitutionality of Section 66A of the Information Technology

Act, which creates a penal offence, inter alia, on the ground that the

expressions used in Section 66A were completely open and undefined in

contrast to Section 66B to Section 67B (of the same legislation) wherein

mens rea was an ingredient and the expressions "dishonestly" and

"fraudulently" stood defined with some degree of specificity, unlike the

expressions used in Section 66A. It was noticed that the provisions

contained in Sections 66B up to Section 67B also provided for various

punishments for offences that are clearly made out. It was observed that a

PIL 24/2018 Page 75 of 196 number of expressions which had been used in Section 66A by the

legislature are also to be found in Section 268 of the Indian Penal Code.

While these expressions were ingredients for the offence of 'public

nuisance' under Section 268 of the IPC, they were offences by themselves

under Section 66A. It was pointed out that the expression 'annoyance' used

in Section 66A is not defined whereas 'annoyance' is defined in Sections

294 and 510 of the Indian Penal Code. Section 66A did not even import the

definitions of these expressions as contained in the Indian Penal Code. The

Supreme Court has held that Section 66A was constitutionally vague and

that it arbitrarily, excessively and disproportionally invaded the

Constitutional right of free speech guaranteed under Article 19 of the

Constitution of India putting unreasonable restrictions thereon and could not

be saved constitutionally.

131. In para 65 of Shreya Singhal, relying upon the pronouncement

reported at (1970) 2 SCC 780 :(1971) 2 SCR 446 K.A.Abbas v. The Union

of India, the Supreme Court dispelled the notion that doctrine of vagueness

was not a part of the constitutional law of India.

132. We extract hereunder the observations in K.A.Abbas which

must guide the consideration of the issue before us:

"44. This brings us to the manner of the exercise of control and restriction by the directions. Here the argument is that most of the regulations are vague and further that they leave no scope for the exercise of creative genius in the field of art. This poses the first question before us whether the 'void for vagueness' doctrine is applicable. Reliance in this connection is placed on Municipal Committee Amritsar and Anr. v. State of Punjab. In that case a Division Bench of this Court lays down that an Indian Act cannot be declared invalid on the ground that it violates the due process clause or that it is vague......

PIL 24/2018 Page 76 of 196 These observations which are clearly obiter are apt to be too generally applied and need to be explained. While it is true that the principles evolved by the Supreme Court of the United States of America in the application of the Fourteenth Amendment were eschewed in our Constitution and instead the limits of restrictions on each fundamental right were indicated in the clauses that follow the first clause of the nineteenth article, it cannot be said as an absolute principle that no law will be considered bad for sheer vagueness. There is ample authority for the proposition that a law affecting fundamental rights may be so considered.

xxxxxxxxxxxxxxxxxxxxxxx The real rule is that if a law is vague or appears to be so, the court must try to construe it, as far as may be, and language permitting, the construction sought to be placed on it, must be in accordance with the intention of the legislature. Thus if the law is open to diverse construction, that construction which accords best with the intention of the legislature and advances the purpose of legislation, is to be preferred. Where however the law admits of no such construction and the persons applying it are in a boundless sea of uncertainty and the law prima facie takes away a guaranteed freedom, the law must be held to offend the Constitution as was done in the case of the Goonda Act. This is not application of the doctrine of due process. The invalidity arises from the probability of the misuse of the law to the detriment of the individual. If possible, the Court instead of striking down the law may itself draw the line of demarcation where possible but this effort should be sparingly made and only in the clearest of cases." (at pages 470, 471)"

(Emphasis by us)

133. It is noteworthy that while after K. A. Abbas, several

legislations have been struck down as being void for vagueness, however,

Shreya Singhal appears to be the first and only judgment where a speech

restricting law has been struck down on grounds of vagueness.

134. In support of the conclusions reached by it on the argument of

the applicability of principle of a legislation being void on application of the

doctrine of vagueness, in Shreya Singhal the Supreme Court, has relied on

other judicial precedents as well which lend illumination and guidance to our

PIL 24/2018 Page 77 of 196 consideration of the constitutional permissibility of the prohibitions imposed

by the J&K Prevention of Beggary Act, 1960.

135. In para 64 of Shreya Singhal, the Supreme Court considered

the judicial precedent reported at (1961) 1 SCR 970 State of Madhya

Pradesh v. Baldeo Prasad wherein the inclusive definition of the word

"goonda" was held to be vague and the offence created by Section 4A of the

Goondas Act was found violative of Article 19(1(d) of the Constitution of

India, holding that the definition afforded no assistance in deciding which

citizen could be put into the category of the word "goonda"; that the

definition of "goonda" was an inclusive definition which did not indicate

which tests have to be applied in deciding whether a person falls in the first

part of the definition; that the Act authorizes the District Magistrate to

deprive a citizen of his fundamental rights under Article 19(d) and (e). The

Supreme Court had thus struck down the speech restricting law on the

ground of vagueness observing that it would not be permissible for the

legislature to cast "a net large enough to catch all possible offenders and

leave it to the Court to step in and say who could be rightfully detained and

who could be set at liberty."

136. We may also usefully refer to the pronouncement of the

Supreme Court reported at (1969) 2 SCC 166 Harakchand Ratanchand

Banthia & Ors. V. Union of India and others, (as relied upon by the

Supreme Court in para 66 of Shreya Singhal). In Harakchand Ratanchand

Banthia, the Supreme Court was called upon to consider the

constitutionality of Section 27 of the Gold Control Act which provided for

PIL 24/2018 Page 78 of 196 licensing of traders on the ground that the provision was uncertain, vague

and unintelligible. The Supreme Court had held as follows:

"21. We now come to Section 27 of the Act which relates to licensing of dealers. It was stated on behalf of the petitioners that the conditions imposed by sub-section (6) of Section 27 for the grant or renewal of licences are uncertain, vague and unintelligible and consequently wide and unfettered power was conferred upon the statutory authorities in the matter of grant or renewal of licence. In our opinion this contention is well founded and must be accepted as correct. Section 27(6)(a) states that in the matter of issue or renewal of licences the Administrator shall have regard to "the number of dealers existing in the region in which the applicant intends to carry on business as a dealer". But the word "region" is nowhere defined in the Act. Similarly Section 27(6)(b) requires the Administrator to have regard to "the anticipated demand, as estimated by him, for ornaments in that region." The expression "anticipated demand" is a vague expression which is not capable of objective assessment and is bound to lead to a great deal of uncertainty. Similarly the expression "suitability of the applicant" in Section 27(6)(e) and "public interest" in Section 27(6)(g) do not provide any objective standard or norm or guidance. For these reasons it must be held that clauses

(a),(d),(e) and (g) of Section 27(6) impose unreasonable restrictions on the fundamental right of the petitioner to carry on business and are constitutionally invalid.xxxxxxxxxxxxxx"

(Emphasis by us)

137. In para 67 of Shreya Singhal, the Supreme Court has referred

to the decision reported at (1982) 2 SCR 272 A. K. Roy &Ors. v. Union of

India and others, wherein the constitutionality of Section 3 of the National

Security Ordinance was under consideration. The Supreme Court had read

down a part of Section 3 on the ground that "acting in any manner

prejudicial to the maintenance of supplies and services essential to the

community" was an expression so vague that it is capable of wanton abuse.

138. Reference stands made in Shreya Singhal v. Union of India to

the judgment of the Supreme Court reported in Grayned v. City of Rockford

PIL 24/2018 Page 79 of 196 33 L Ed 2d 222 : 408 U.S. 104, 108-109 (1972), wherein it was observed

that the void for vagueness doctrine requires to address at least the following

three connected but discrete due process concerns:

"It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Third, but related, where a vague statute 'abut(s) upon sensitive areas of basic First Amendment freedoms, it 'operates to inhibit the exercise of (those) freedoms.' Uncertain meanings inevitably lead citizens to "steer far wider of the unlawful zone' . . . than if the boundaries of the forbidden areas were clearly marked.'"(at page 227-228)"

(Emphasis by us)

The legislation in question before us must address these three

concerns.

139. In Shreya Singhal, the Supreme Court conducted an elaborate

examination of the Indian and American jurisprudence elaborating on the

principles of vagueness and concluded that the expressions used in Section

66A of the Information Technology Act, were completely "open ended and

un-defined." (para 72 of the SCC).

140. Further noting the subjectivity of the expressions used in

Section 66A of the I.T. Act, the Supreme Court observed that ".......every

expression used is nebulous in meaning. What may be offensive to one may

PIL 24/2018 Page 80 of 196 not be offensive to another. What may cause annoyance or inconvenience to

one may not cause annoyance or inconvenience to another. Even the

expression "persistently" is completely imprecise- suppose a message is sent

thrice, can it be said that it was sent "persistently"?"

141. We have extracted above the definition as contained in Section

2(a) of the Jammu and Kashmir Prevention of Beggary Act. As per clause (i)

of sub-section (a) of Section 2, begging means "soliciting alms" in a "public

place", or "in or about a temple, mosque or other place of public worship",

"whether or not under any pretence".

142. This definition of 'begging' as contained in the Jammu &

Kashmir Prevention of Beggary Act, is at variance with the definition

contained in the Bombay Prevention of Begging Act, 1959. The Bombay Act

does not contain any reference to a temple, mosque or a place of public

worship. Furthermore, under the Bombay Prevention of Begging Act, the

expression "pretence" is qualified by use of the expression "such as singing,

dancing, fortune telling, performing or offering any article for sale". As a

result, several innocent activities (such as singing, dancing etc. in a public

place) for which one may receive money from the bystanders, may be

considered permissible and legitimate activity to one person, while the same

may be covered under the description "soliciting alms to another".

143. The definition as contained in Section 2 (a) (i) of the Jammu &

Kashmir enactment also brings into its net, every possible vulnerable person

especially having failed to elaborate on the expression "under any pretence".

Legitimate activities in Jammu & Kashmir (which stand specifically

PIL 24/2018 Page 81 of 196 criminalized under the Bombay enactment) inclusive of singing, dancing,

fortune telling, any other performance as well as offering articles for sale are

left to the perception of the enforcing agency to construe as an act of

solicitation of alms, to apply the punitive provisions of the law. Thus, street

performers; traditional artistes as madaris, puppeteers; petty vendors and

people struggling to make ends meet by display of some art or skill in a

public space would be rendered susceptible to prosecution under this law as

they may be perceived to be "soliciting alms".

144. Section 2(a)(i) thus makes no distinction between persons who

were actually receiving money for authorized purposes as, say for instance,

against sale of goods. It does not explain "pretence" which, perse is an

extremely vague, indefinite, imprecise expression, to take action for

beggary.

145. In clause (iii) of Section 2(a) of the enactment, the legislature

has used the expression "exposing or exhibiting" with the object of obtaining

or extorting alms which would render a person liable for criminal

prosecution under this law. While the presence in a public place of one who

stands deprived of a limb, may be completely natural to one person, another

may perceive the same as an act of exposure or exhibition of the disability to

be covered under Section 2(a)(iii). By such a widely worded definition, the

legislation has rendered vulnerable every person been born disabled or who

may have suffered a physical deformity in an accident or otherwise;

somebody suffering from disease say for instance leprosy even though they

are not begging.

PIL 24/2018 Page 82 of 196

146. The sweep of the legislation as to what is to constitute "object

of securing alms" is also not stated. Thus, it is left to the absolute arbitrary

perception and view of the law enforcing official to assess as to whether an

injury is being "exposed" or "exhibited" to obtain or extort alms.

147. Clause (iv) of Section 2(a), is even broader than the other

clauses as it defines begging as meaning having "no visible means of

subsistence" and "wandering about" or "remaining in any public place" or

"in a temple, mosque or other place of public worship" in such a condition

or manner as "makes it like" that the person doing so exists by soliciting

alms.

148. Clause (iv) goes way beyond the act of "soliciting alms". It

takes into its sweep, entire way of life of entire communities when it

criminalizes "wandering about" or "remaining in any public place". This

definition overlooks the hard reality that there are large numbers of homeless

in the community and even larger number without any fixed abode who live

only in public places. It also ignores the reality that in the mountainous

regions of Jammu & Kashmir, there are legally recognized nomadic

communities which include the Gujjars and the Bakerwals. These

communities do not remain in a single place and move from one place to

another. The community displays none of the conventional means of

subsistence or permanent residence. On application of the above statutory

definition of begging the very presence and manner of existence of these

nomads could be easily perceived as "begging" rendering them liable for

prosecution under the legislation under question. Thus, the law as it exists in

Section 2(a)(iv) would actually punish the way of life of the nomads which

PIL 24/2018 Page 83 of 196 is a life style different from commonly perceived notions of what should be

an "acceptable" life style.

149. It needs no elaboration that homelessness is also compelled by

the reality of abject poverty, lack of income and employment, deprivation of

public assistance and government support, no sufficient housing, illness

including sickness including mental ailment or even addiction disorders.

150. We find that the "homeless" has been defined by the court of

Appeals of British Columbia, Canada, in the judgment reported at 2009

BCCA 563 [Adams BCCA] : Victoria (City) v. Adams, in the following

terms;

"..........A person who has neither a fixed address nor a predictable safe residence to return to on a daily basis"

This definition squarely applies to the homeless in this State as

well.

This condition results in the homeless having to "wander about"

or to "remain in public place" or to seek shelter in "temple, mosque or other

place of public worship"

151. Section 2(a)(iv) thus also treats homelessness and begging

synonymously. It also does not require a person to actually 'beg' for

application of the penal provisions.

152. Does "visible means of subsistence" envisage waving your

economic prosperity in public spaces? Or is it sufficient to have a hefty bank

balance?

PIL 24/2018 Page 84 of 196

153. "Having no visible means of subsistence" and the other

conditions spell out in Section 2(a) clearly advert to a condition of a person.

It does not render punitive any particular act or omission on the part of the

person but would render a person liable to be prosecuted under the

enactment if he did not make a public display means of subsistence or his

wealth and, again, is left completely to the perception by the law enforcing

authority that he or she existed so by soliciting alms.

154. Clause (iv) of Section 2(a) lays down no parameters at all. On

what would rest the presumption that a person exists only by soliciting alms?

These assessments are completely undefined and indeterminate. We have no

manner of doubt that the definition of begging in Section 2(a)(iv) leaves

culpability completely to the imagination and opinion of the person who is

enforcing the provisions of the law.

155. For the same reasons Clause (v) of Section 2(a) is completely

unclear as to what is the action which could be penalized. The legislature has

losely used the expression "allowing himself to be used as an exhibit" for the

purposes of soliciting alms. At the same time, the legislation has made an

exception of actions for "soliciting money or fee or gift for a purpose

authorized by any law or authorized in the prescribed manner by the District

Magistrate." The legislation fails to define or describe what would be a

"purpose authorized by any law". Such purpose could very well include

soliciting money for dispensation in charity. Thus, the legislation makes a

difference between a person soliciting money or fee or gift for a purpose

authorized by the District Magistrate and a person seeking assistance for

self.

PIL 24/2018 Page 85 of 196

156. Just as in Section 66A of the Information Technology Act, we

find that in Section 2(a) of the Jammu & Kashmir Prevention of Beggary

Act, 1960, there is complete absence of the requirement of any "mens rea"

for the conduct of the person to constitute a criminal offence.

157. Similarly, the legislature has used the series of expressions

including "soliciting"; "under any pretence"; "exposing or exhibiting";

"obtaining or extorting"; "no visible means"; "wandering about"; "or

remaining in such condition or manner"; and "make it like" in Section 2(a)

which defines begging under the Jammu & Kashmir Prevention of Beggary

Act, 1960, which would have different interpretations to different

individuals.

158. The expressions used in Section 2(a) are so broad that they do

not give any notice at all to anybody as to what is the conduct which has

been legislatively forbidden.

159. Every expression used in Section 2(a) is inchoate and

undefined. Borrowing the words used by the Supreme Court to describe

legislation in Shreya Singhal, we also find that the expressions used to

describe "begging" in Section 2(a) of the Jammu & Kashmir Prevention of

Beggary Act, 1960, are nebulous, to say the least.

160. Section 2(a)(v) of the legislation contemplates protection of

persons or organized groups seeking dispensation of charity for which the

District Magistrate may permit them. Thus, it can very well be urged that the

statute is "view point" based and the restrictions are premised on the

"content of the communication" because it supports the view that poor

PIL 24/2018 Page 86 of 196 people should not be making public requests for their own needs but the

poor people could be helped by such organized groups who have been

permitted to help them. The statute thus discriminates between lawful and

unlawful conduct based upon the content of the communication.

161. It is also noteworthy that Section 2(a) draws a distinction based

on the content of the message. Under this law only such communicative

activity that can be considered soliciting alms, i.e. direct charitable

assistance for the beggar himself, constitutes a crime. Therefore, a person

can legitimately solicit money for other purposes, say, as donation for a

school function and school activities; or money for social or political causes;

or a request for assistance when a bag is stolen or lost. Such conduct would

also be similar to "wandering.............. in any public place". However,

requesting strangers for such assistance would not draw you within the net

of definition of "begging" under Section 2(a) of the statute. There is also no

prohibition under the impugned legislation to speaking at will to strangers or

soliciting information, say for instance, seeking the time of the day or

direction. It is only approaching any person and soliciting alms which is

prohibited.

162. The law, in terms, clearly draws a distinction based on the

content of the message conveyed and only such communication that calls for

direct charitable assistance constitutes a crime. The statute imposes a total

prohibition on peaceful requests by the poor for financial aid. It punishes

such requests for help to meet their basic human needs while protecting

similar requests by more affluent people in such precarious situations (say a

PIL 24/2018 Page 87 of 196 lost bag) as cited above. Thus, it is the content of the persons' message

which determines the culpability for criminal offence under the Act.

163. Is there any real distinction between an individual soliciting

alms for himself or, on the other hand, soliciting as envisaged by Section

2(a)(v) "for a purpose authorized by any law" or "authorized.......... by the

District Magistrate"?

164. Is it possible to say that there is a difference between such a

person who is soliciting assistance for himself and those who solicit for

organized charities, with regard to the message that they convey? While the

former is communicating a personal need, the later are communicating needs

of others. Are not both soliciting charity, one for self and one for others? In

our view, the distinction which the legislation has sought to draw is neither

real nor significant enough to justify the restriction.

165. We find that this very view stands taken in the judgment of the

Supreme Court of Massachusetts in Craig Benefit v. City of Cambridge &

Others 424 Mass. 918 (1997) whence it was stated thus:

"Begging is generally defined as speech in which the person seeking assistance either asks for money or expresses need through some other clear form of communication such as a sign, a donation cup, or an outstretched hand. Many times a beggar's solicitations will be accompanied, as were the plaintiff's, by communications that convey social or political messages. "Even without particularized speech, however, the presence of an unkempt and disheveled person holding out his or her hand or a cup to receive a donation itself conveys a message of need for support and assistance. We see little difference between those who solicit for organized charities and those who solicit for themselves in regard to the message conveyed. The former are communicating the needs of others while the latter are communicating their personal needs. Both

PIL 24/2018 Page 88 of 196 solicit the charity of others. The distinction is not a significant one for First Amendment purposes. Loper, supra at 704. Indeed, it would be illogical to restrict the right of the individual beggar to seek assistance for himself while protecting the right of a charitable organization to solicit funds on his behalf. Such a conclusion would require citizens to organize in order to avail themselves of free speech guarantees, a requirement that contradicts the policies underlying the First Amendment. We conclude, on the strength of the charitable solicitation cases cited above, that there is no distinction of constitutional dimension between soliciting funds for oneself and for charities and therefore that peaceful begging constitutes communicative activity protected by the First Amendment. [Note 4]"

(Emphasis by us)

166. The Supreme Court of the United States of America had an

occasion to consider the constitutionality of the Florida Vagrancy Law in the

judgment reported at 405 U.S. 156 (1972) Papachristou v. Jacksonville.

The Supreme Court had ruled that the law (which was similar to the Begging

enactment being examined by us) was unconstitutional because it was too

vague to be understood. The law was criticized for the reason that it

punishes a person's condition rather than his acts. This case involved eight

defendants who were convicted in a Florida Municipal Court of violating a

Jacksonville, Florida, vagrancy ordinance. Their convictions were affirmed

by a Florida Circuit Court in a consolidated appeal and their petition for

certiorari was denied by the District Court of appeal. The US Supreme Court

granted the petition for certiorari. The opinion of the Court was delivered by

Douglas, J., in which all members joined except Powell and Rehnquist, JJ.,

who did not take part in the consideration or decision. The court considered

the historical background in which the Vagrancy Ordinance was enacted. It

was observed that the Jacksonville Ordinance made criminal activities which

PIL 24/2018 Page 89 of 196 by modern standards are normally innocent, that it failed to give a person of

ordinary intelligence fair notice that his contemplated conduct was forbidden

by the law and was voided on the ground of vagueness holding as follows:

"The theory of Elizabethan poor laws no longer fits the facts (Edwards v. California, 314 U.S. 160, 314 U.S. 174). The conditions which spawned these laws may be gone, but the archaic classifications remain."

This ordinance is void for vagueness, both in the sense that it "fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute," (United States v. Harriss, 347 U.S. 612, 347 U.S. 617), and because it encourages arbitrary and erratic arrests and convictions. (Thornhill v. Alabama, 310 U.S. 88; Herndon v. Lowry, 301 U.S. 242).

Living under a rule of law entails various suppositions, one of which is that "[all persons] are entitled to be informed as to what the State commands or forbids. (Lanzetta v. New Jersey, 306 U.S. 451, 306 U.S. 453) Lanzetta is one of a well recognized group of cases insisting that the law give fair notice of the offending conduct. (Connally v. General Construction Co., 269 U.S. 385, 269 U.S. 391; Cline v. Frink Dairy Co., 274 U.S. 445; United States v. Cohen Grocery Co., 255 U.S. 81). In the field of regulatory statutes governing business activities, where the acts limited are in a narrow category, greater leeway is allowed. (Boyce Motor Lines, Inc v. United States, 342 U.S. 337; United States v. National Dairy Products Corp., 372 U.S.29; United States v. Petrillo, 332 U.S.).

The poor among us, the minorities, the average householder, are not in business and not alerted to the regulatory schemes of vagrancy laws; and we assume they would have no understanding of their meaning and impact if they read them. Nor are they protected from being caught in the vagrancy net by the necessity of having a specific intent to commit an unlawful act. (Screws v. United States, 325 U.S. 91; Boyce Motor Lines, Inc. v. United States).

"Persons able to work but habitually living upon the earnings of their wives or minor children"--like habitually living "without visible means of support" -might implicate unemployed pillars of the community who have married rich wives.

"Persons able to work but habitually living upon the earnings of their wives or minor children" may also embrace unemployed people out of the labor marker, by reason of a

PIL 24/2018 Page 90 of 196 recession or disemployed by reason of technological or so- called structural displacements."

(Emphasis by us)

167. So far as the question of vagueness of a legislation is concerned

there is one more angle which this issue has to be considered. It is well

settled penal statute must notify all persons as of the fact that what conduct

would be perceived as criminal. An illuminating discussion on this aspect is

to be found in Shreya Singhal which illustrates that the same conduct

evaluated in terms of an unclear statute, when placed even before two

judicially trained minds could result in diametrically opposite conclusions.

This by itself established that the legislation in question did not lay down

any clear standards and had to be voided on the ground of vagueness. In this

regard we may usefully extract paras 83, 84 and 85 of the pronouncement in

Shreya Singhal which reads thus;

"83. Similarly in Chambers v. Director of Public Prosecutions, [2013] 1 W.L.R. 1833, the Queen's Bench was faced with the following facts: (WLR p.1833)

"Following an alert on the Internet social network, Twitter, the defendant became aware that, due to adverse weather conditions, an airport from which he was due to travel nine days later was closed. He responded by posting several "tweets" on Twitter in his own name, including the following: "Crap1 Robin Hood Airport is closed. You've got a week and a bit to get your shit together otherwise I am blowing the airport sky high"

None of the defendant's "followers" who read the posting was alarmed by it at the time. Some five days after its posting the defendant's tweet was read by the duty manager responsible for security at the airport on a general Internet search for tweets relating to the airport. Though not believed to be a credible threat the matter was reported to the police. In interview the defendant asserted that the tweet was a joke and not intended to be menacing. The defendant was charged with sending by a public electronic communications network a message of

PIL 24/2018 Page 91 of 196 a menacing character contrary to section 127(1)(a) of the Communications Act 2003. He was convicted in a magistrates' court and, on appeal, the Crown Court upheld the conviction, being satisfied that the message was "menacing per se" and that the defendant was, at the very least, aware that his message was of a menacing character."

84. The Crown Court was satisfied that the message in question was "menacing" stating that an ordinary person seeing the tweet would be alarmed and, therefore, such message would be "menacing". The Queen's Bench Division reversed the Crown Court stating: (Director of Public Prosecutions case, WLR p.1842, para 31)

"31. Before concluding that a message is criminal on the basis that it represents a menace, its precise terms, and any inferences to be drawn from its precise terms, need to be examined in the context in and the means by which the message was sent. The Crown Court was understandably concerned that this message was sent at a time when, as we all know, there is public concern about acts of terrorism and the continuing threat to the security of the country from possible further terrorist attacks. That is plainly relevant to context, but the offence is not directed to the inconvenience which may be caused by the message. In any event, the more one reflects on it, the clearer it becomes that this message did not represent a terrorist threat, or indeed any other form of threat. It was posted on "Twitter" for widespread reading, a conversation piece for the defendant's followers, drawing attention to himself and his predicament. Much more significantly, although it purports to address "you", meaning those responsible for the airport, it was not sent to anyone at the airport or anyone responsible for airport security, or indeed any form of public security. The grievance addressed by the message is that the airport is closed when the writer wants it to be open. The language and punctuation are inconsistent with the writer intending it to be or it to be taken as a serious warning. Moreover, as Mr. Armson noted, it is unusual for a threat of a terrorist nature to invite the person making it to be readily identified, as this message did. Finally, although we are accustomed to very brief messages by terrorists to indicate that a bomb or explosive device has been put in place and will detonate shortly, it is difficult to imagine a serious threat in which warning of it is given to a large number of tweet "followers" in ample time for the threat to be reported and extinguished."

PIL 24/2018 Page 92 of 196

85. These two cases illustrate how judicially trained minds would find a person guilty or not guilty depending upon the Judge's notion of what is "grossly offensive" or "menacing". In Collins' case, both the Leicestershire Justices and two Judges of the Queen's Bench would have acquitted Collins whereas the House of Lords convicted him. Similarly, in the Chambers case, the Crown Court would have convicted Chambers whereas the Queen's Bench acquitted him. If judicially trained minds can come to diametrically opposite conclusions on the same set of facts it is obvious that expressions such as "grossly offensive" or "menacing" are so vague that there is no manageable standard by which a person can be said to have committed an offence or not to have committed an offence. Quite obviously, a prospective offender of Section 66A and the authorities who are to enforce Section 66A have absolutely no manageable standard by which to book a person for an offence under Section 66A. This being the case, having regard also to the two English precedents cited by the learned Additional Solicitor General, it is clear that Section 66A is unconstitutionally vague."

(Emphasis supplied)

168. On this issue, the pronouncement of the Supreme Court of US

reported at 132 S.Ct.2307 Federal Communications Commission v. Fox

Television Stations, sheds valuable light when it was stated as follows:

"A fundamental principle in our legal system is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required. See Connally v. General Constr. Co., 269 U.S. 385, 391 (1926) ("[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law") (Emphasis supplied)

169. The summarization of the applicable principles on the question

of voiding a statute for vagueness as contained in paras 130-131 of (1994) 3

SCC 569 Kartar Singh v. State of Punjab, which have to guide the

consideration by this Court. We may usefully extract paras 130 and 131

(also extracted in para 68 of Shreya Singhal), which read as follows:

PIL 24/2018 Page 93 of 196

"130. It is the basic principle of legal jurisprudence that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. It is insisted or emphasized that laws should give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Such a law impermissibly delegates basic policy matters to policemen and also judges for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. More so uncertain and undefined words deployed inevitably lead citizens to "steer far wider of the unlawful zone ... than if the boundaries of the forbidden areas were clearly marked.

131. Let us examine clause (i) of Section 2(1)(a). This section is shown to be blissfully and impermissibly vague and imprecise. As rightly pointed out by the learned counsel, even an innocent person who ingenuously and undefiledly communicates or associates without any knowledge or having no reason to believe or suspect that the person or class of persons with whom he has communicated or associated is engaged in assisting in any manner terrorists or disruptionists, can be arrested and prosecuted by abusing or misusing or misapplying this definition. In ultimate consummation of the proceedings, perhaps that guiltless and innoxious innocent person may also be convicted."

(Emphasis by us)

170. In the judgment reported at 408 US 104 (1972) Grayned v. City

of Rockford, the test laid down for examination of the issue of vagueness of

a statute is that the laws give a person of ordinary intelligence a reasonable

opportunity to know what is prohibited so that he may act accordingly. The

concern is that vague laws may result in entrapment of an innocent as they

do not provide fair warning. The second concern articulated in Grayned is

that laws must provide explicit standards for those who may apply them in

order to prevent arbitrary and discriminatory enforcement. The Court

observed that a vague law impermissibly delegates basic policy matters to

policemen, judges and juries for resolution on adhoc and subjective basis

PIL 24/2018 Page 94 of 196 which also has the attendant dangers of arbitrary and discriminatory

application.

171. The definitional clause in Section 2(a) of the J&K Prevention of

Beggary Act, 1960, is all inclusive and extremely generalized. We have no

manner of doubt that it is uncertain, completely vague and unintelligible.

172. The definition of begging under Section 2(a) does not

distinguish between begging which is peaceful; which does not entail any

intrusive action or threat, either physical or verbal or obstruction of any

kind. As discussed above, the alms which are received by the individuals are

either necessities in life or used to purchase basic essentials. Thus, statutory

provision, therefore, directly targets the content of the communications,

punishing requests by the individual for help for essential basic human

needs. At the same time, it protects requests for help made by the more

affluent persons for other less critical needs, say donations for charity (for

instance orphanages or school activity or such like purposes).

173. The clause is undoubtedly irredeemably and extraordinarily

over broad and over inclusive without criminalizing a particular act or

omission, simply making a reference to the condition of a person and merely

requiring the law enforcer to draw an arbitrary perception from the bare

appearance of a person, without anything more, for considering a person

liable for action under the penal provisions of the law. This law has

unfortunately criminalized what are otherwise absolutely normal activities

and has been framed in a manner so broad and inclusive that it has enabled

punishment for virtually anything that affronts the subjective sensturity of

PIL 24/2018 Page 95 of 196 the implementing authority. Visible dire poverty witnessed in public places

is enough to bring a person within the net of the criminality envisaged under

the Jammu & Kashmir Prevention of Beggary Act, 1960.

174. With regard to the distinction based on content of the message,

in a judgment of the Supreme Court of Massachusetts in Craig Benefit v.

City of Cambridge & Others 424 Mass. 918 (1997), the court ruled as

follows:

"(b) General Laws c. 272, s. 66, states a broad ban on begging that by its terms makes distinctions based on the content of the message conveyed. Under the statute, only communicative activity that asks for direct, charitable aid for the beggar constitutes a crime. The statute permits speech by those who ask in public places for money for other purposes, such as money for parking meters, change for the bus, money to make a telephone call, assistance where a wallet has been lost, donations for school teams and activities, money for all kinds of political and social causes, and money for newspapers and articles sold on the street. The conduct by the solicitor in all of these examples is the same: "wandering about" (in the parlance of the statute) in a public place, communicating with strangers, and requesting assistance of some kind. By prohibiting peaceful requests by poor people for personal financial aid, the statute directly targets the content of their communications, punishing requests by an individual for help with his or her basic human needs while shielding from government chastisement requests for help made by better-

dressed people for other, less critical needs. The statute is thus necessarily content based because the content of the individual's message determines criminal guilt or innocence."

(Emphasis supplied)

175. In Craig Benefit, the court also found that the legislation

favoured a particular view point. It was observed as follows:

"The statute may also be fairly characterized as viewpoint based because it favors the view that poor people should be

PIL 24/2018 Page 96 of 196 helped by organized groups and should not be making public requests for their necessities. See Hershkoff & Cohen, Begging to Differ : The First Amendment and the Right to Beg, 104 Harv. L. Rev. 896, 907 (1991) ("When the government prohibits begging, it takes one position among several existing views on charity and prohibits speech that implicitly promotes a contrary viewpoint"). [Note 5] These types of bans are not lightly permitted. "The First Amendment's hostility to content-based regulation extends not only to restrictions on particular viewpoints, but also to prohibition on public discussion of an entire topic."

Consolidated Edison Co. of N.Y. v. Public Serv. Comm'n of N.Y., 447 U.S. 530, 537, 100 S.Ct. 2326, 2333, 65 L.Ed.2d 319 (1980). See Turner Broadcasting Sys., Inc. v. FCC, 512 U.S. 622, 643, 114 S.Ct. 2445, 2459, 129 L.Ed.2d 497 (1994) (laws that "distinguish favored speech from disfavored speech on the basis of the ideas or views expressed are content-based"); R.A.V. v. St. Paul, 505 U.S. 377, 382, 112 S.Ct. 2538, 2542, 120 L.Ed.2d 305 (1992) ("[c]ontent-based regulations are presumptively invalid")."

(Emphasis by us)

176. That the ban directed by the statute applied at all public

places, legitimately expected to be accessible and therefore not

sustainable was discussed in Craig Benefit in the following terms.

"The statute directs its ban Statewide at all public places, and thus includes the public sidewalks where the plaintiff conducted his activity as well as public parks and other areas. These sites fall within the category of property traditionally held open to the public for expressive activity. Since we are concerned with a content-based prohibition on communicative activity occurring in what have historically been considered public forums, the statute must be subjected to strict scrutiny. See Commonwealth v. A Juvenile, 368 Mass. 580, 584, 334 N.E.2d 617 (1975)."

(Emphasis by us)

177. The court also rejected the State's defence that the

legislation served a compelling state interest and held that its

PIL 24/2018 Page 97 of 196 implementation rested on presumptions, observing thus (in Craig

Benefit):

"(c) It has not been shown that G.L. c. 272, s.66, is "necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end." Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983).

We reject the district attorney's argument that the statute supports the Commonwealth's compelling interest in preventing crime and in providing safe streets. There is no basis whatsoever in the record to support the assumption that those who peacefully beg are likely to commit crimes. It cannot "be seriously contended that because a person is without employment and without funds he constitutes a 'moral pestilence.' Poverty and immorality are not synonymous." Edwards v. California, 314 U.S. 160, 177, 62 S.Ct. 164, 168, 86 L.Ed. 119 (1941). Further, the government cannot make communicative activity criminal solely on the ground that the person engaging in the activity might commit a future crime.

"A presumption that people who might walk or loaf or loiter or stroll ... or who look suspicious to the police are to become future criminals is too precarious for a rule of law. The implicit presumption in these generalized vagrancy standards- that crime is being nipped in the bud-is too extravagant to deserve extended treatment." Papachristou v. Jacksonville, 405 U.S. 156, 171, 92 S.Ct. 839, 848, 31 L.Ed.2d 110 (1972). Nor are we impressed with the argument that the statute is justified because, to quote the district attorney's brief, it "create[s] an atmosphere where citizens may go about their way free from being accused, intimidated, or harassed." A listener's annoyance or offense at a particular type of communicative activity does not provide a basis for a law burdening that activity, see Texas v. Johnson, 491 U.S. 397, 408-09, (1989), especially because people are free to ignore or walk away from the beggar's request for money or attention. We conclude that no compelling State interest has been demonstrated that would warrant punishing a beggar's peaceful communication with his or her fellow citizens in a public place ....for some panhandlers, begging is a way to augment their meager sources. For a few, it may be their only source of income. Panhandling is therefore close to the center

PIL 24/2018 Page 98 of 196 of the personal liberty of some people in contemporary American society."

(Emphasis supplied by us)

178. In the judgment reported at 83 Nev 214, 427 P2d 642 Parker v.

Municipal Judge of Las Vegas, the court has stated that it was not a crime

to be unemployed, without funds, and in a public place. The court declared

unconstitutional an ordinance which made it a misdemeanour for one with

physical ability to work and no visible means of support to be in a public

place. It was concluded that to make the status of poverty, rather than

conduct, a crime, is to violate due process.

179. In the judgment reported at 353 Mass 287, 231 NE2d 201

Alegata v. Commonwealth, the court declared yet another similarly

vagrancy statute enacted in Massachusetts as unconstitutional again for the

reason that it was violative of the due process clause. It was again pointed

out that what the statute attempts to prescribe is not the commission of some

act or acts but seeks to punish a person because of his status, idleness and

poverty. Thus, the court held that it should not be treated as a criminal

offence.

180. Similarly, in the judgment reported at 224 Ga 255 Wallace v.

State, the Court observed that such statute made it a crime merely to be idle,

or merely to be loitering. This would be constitutionally defective which

defect could get cured if the statute is interpreted to require the presence of

several factors to sustain a conviction for vagrancy.

181. Clearly the legislation under examination has been imprecisely

drawn and per se suffers from the vice of vagueness.

PIL 24/2018 Page 99 of 196

182. We find that in Shreya Singhal, the court has also referred to

the judgment reported at AIR 1960 SC 633 The Superintendent, Central

Prison, Fatehgarh v. Ram Manohar Lohia, wherein the Court had struck

down Section 3 of the U.P. Special Powers Act, which penalized those who

instigated either expressly or by implication any person or class of persons

not to pay or to defer payment of any liability. The Court held that this

section also laid a wide net to cover a variety of acts of instigation ranging

from friendly advice to systematic propaganda, taking into its amplitude the

innocent as well as the guilty, bonafide or malafide would cover persons

who could be a legal adviser, a friend or a well wisher of the person

instigated. It was held that the section was not possible to predicate with

precision the different categories of instigation which fell within or without

the field of constitutional prohibitions. It was held that section must be

declared as unconstitutional as the offence made out would depend upon

uncertain factors.

183. In para 8 of AIR 1951 SC 118 Chintaman Rao v. State of

M.P., the Supreme Court invalidated the statute in question for the reason

that "the language employed is wide enough to cover restrictions both

within and without the limits of constitutionally permissible legislative

action affecting the right. So long as the possibility of its being applied for

purposes not sanctioned by the Constitution cannot be ruled out, it must be

held to be wholly void."

It is noteworthy that in this judgment the Supreme Court has

not referred to the concept of the legislation being overbroad specifically.

PIL 24/2018 Page 100 of 196

184. In Shreya Singhal the Supreme Court also applied the tests laid

down in Chintaman Rao and V. G. Row and thereafter held that Section

66A arbitrarily, excessively and disproportionately invaded the right of free

speech and upsets the balance between such right and the reasonable

restrictions that may be imposed on such right.

185. We also find that the vague definition in Section 2(a) results in

conferment of untrammeled and uncontrolled power on the police to

arbitrarily arrest citizens. As a result, persons remain confined in the homes

during the inquiry following a truncated summary procedure and, if found

guilty, thereafter, further detained.

186. The U. S. Supreme Court in Papachristou v. City of

Jacksonville considered this aspect of the vague criminal statute and noted

as follows:

"This aspect of the vagrancy ordinance before us is suggested by what this Court said in 1876 about a broad criminal statute enacted by Congress:

"It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large." (United States v. Reese, 92 U.S. 214, 92 U.S. 221).

"While that was a federal case, the due process implications are equally applicable to the States and to this vagrancy ordinance. Here, the net cast is large not to give the courts the power to pick and choose, but to increase the arsenal of the police. In Winters v. New York, 333 U.S. 507, the Court struck down a New York statute that made criminal the distribution of a magazine made up principally of items of criminal deeds of bloodshed or lust so massed as to become vehicles for inciting violent and depraved crimes against the person. The infirmity the Court found was vagueness--the absence of "ascertainable standards of guilt" in the (page 165) sensitive First Amendment area. Mr. Justice Frankfurter dissented. But concerned as he, and many others, had been over the vagrancy laws, he added:

PIL 24/2018 Page 101 of 196 "Only a word needs to be said regarding Lanzetta v. New Jersey, 306 U.S. 451. The case involved a New Jersey statute of the type that seek to control 'vagrancy'. These statutes are in a class by themselves, in view of the familiar abuses to which they are put......Definiteness is designedly avoided so as to allow the net to be cast at large, to enable men to be caught who are vaguely undesirable in the eyes of police and prosecution, although not chargeable with any particular offense. In short, these 'vagrancy statutes' and laws against 'gangs' are not fenced in by the text of the statute or by the subject matter so as to give notice of conduct to be avoided."(Id. At 333 U.S.540) Where the list of crimes is so all-inclusive and generalized as the one in this ordinance, those convicted (page 167) may be punished for no more than vindicating affronts to police authority:

"The common ground which brings such a motley assortment of human troubles before the magistrates in vagrancy-type proceedings is the procedural laxity which permits 'conviction' for almost any kind of conduct and the existence of the House of Correction as an easy and convenient dumping-ground for problems (page 168) that appear to have no other immediate solution." (Foote, Vagrancy-Type Law and Its Administration, 104 U.Pa. L. Rev. 603, 631). Another aspect of the ordinance's vagueness appears when we focus not on the lack of notice given a potential offender, but on the effect of the unfettered discretion it places in the hands of the Jacksonville police. Caleb Foote, an early student of this subject, has called the vagrancy-type law as offering "punishment by analogy." Id. At 609 Such crimes, though long common in Russia, are not compatible with our constitutional (page 169) system. We allow our police to make arrests only "probable cause", at Fourth and Fourteenth Amendment standard applicable to the State as well as to the Federal Government. Arresting a person on suspicion, like arresting a person for investigation, is foreign to our system, even when the arrest is for past criminality. Future criminality, however, is the common justification for the presence of vagrancy statutes. (Foote, Vagrancy-Type Law and Its Administration). Flordia has, indeed, construed her vagrancy statute "as necessary regulations," inter alia, "to deter vagabondage and prevent crimes." (Johnson v. State, 202 So.2d 852; Smith v. State, 239 So.2d 250, 251).

A direction by a legislature to the police to arrest all "suspicious" persons would not pass constitutional muster. A vagrancy prosecution may be merely the cloak for a conviction which could not be obtained on the real but

PIL 24/2018 Page 102 of 196 undisclosed grounds for the arrest.(Page 170) (People v. Moss, 309 N. Y. 429, 131 N.E.2d 717).

But as Chief Justice Hewart said in Frederick Dean, 18 Crim. App. 133, 134 (1924):

"It would be in the highest degree unfortunate if, in any part of the country, those who are responsible for setting in motion the criminal law should entertain, connive at or coquette with the idea that, in a case where there is not enough evidence to charge the prisoner with an attempt to commit a crime, the prosecution may, nevertheless, on such insufficient evidence, succeed in obtaining and upholding a conviction under the Vagrancy Act, 1824."

Those generally implicated by the imprecise terms of the ordinance--poor people, nonconformists, dissenters, idlers-- may be required to comport themselves according to the lifestyle deemed appropriate by the Jacksonville police and the courts. Where, as here, there are no standards governing the exercise of the discretion granted by the ordinance, the scheme permits and encourages an arbitrary and discriminatory enforcement of the law. It furnishes a convenient tool for "harsh and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure." (Thornhill v. Alabama, 310 U.S. 88, 310 U.S. 97-98). It results in a regime in which the poor and the unpopular are permitted to "stand on a public sidewalk.... Only at the whim of any police officer." (Shuttlesworth v. Birmingham, 382 U.S. 87, 382 U.S. 90). Under this ordinance, "If some carefree type of fellow is satisfied to work just so much, and no more, as will pay for one square meal, some wine, and a flophouse daily, but a court thinks this kind of living subhuman, the fellow can be forced to raise his sights or go to jail as a vagrant." (Amsterdam, Federal Constitutional Restrictions on the Punishment of Crimes of Status, Crimes of General Obnoxiousness, Crimes of Displeasing Police Officers, and the Like, 3 Crim. L. Bull. 205, 226 (1967)) (Page 405 U.S.

171).

A presumption that people who might walk or loaf or liter or stroll or frequent houses where liquor is sold, or who are supported by their wives or who look suspicious to the police are to become future criminals is too precarious for a rule of law. The implicit presumption in these generalized vagrancy standards--that crime is being nipped in the bud--is too extravagant to deserve extended treatment. Of course, vagrancy statutes are useful to the police. Of course, they are nets making easy the roundup of so-called undesirables. But the rule of law implies equality and justice in its application. Vagrancy laws of the Jacksonville type teach that the scales of justice are so tipped that even-handed administration of the law

PIL 24/2018 Page 103 of 196 is not possible. The rule of law, evenly applied to minorities as well as majorities, to the poor as well as the rich, is the great mucilage that holds society together."

(Emphasis by us)

187. These principles and observations squarely apply to the

provisions of the Jammu & Kashmir Prevention of Beggary Act, 1960, we

have no manner of doubt that the definition of begging and what constitutes

begging is vague, arbitrary and excessively overbroad. Thereby this

legislation clearly denies the constitutional guarantees of pluralism and

inclusiveness.

188. In fact, clearly the definition under Section 2(a) of the

enactment leaves it to the whim and fancy of the law enforcing agency as to

arbitrarily construe from the conduct or appearance of a person, or his very

way of life, as presuming a person liable for punishment under the Jammu &

Kashmir Prevention of Beggary Act, 1960.

(XII) Inevitable and chilling effect of the overbroad Statute

189. We have extracted above the Preamble as well as the Statement

of Objects and Reasons for the enactment of criminalizing beggary in

Jammu & Kashmir as also the statutory provisions and the rules thereunder.

190. The legislation has enabled any police officer or any other

person authorized in this behalf by the District Magistrate to arrest without

warrant any person who is found begging. Rule 4 of the Jammu and Kashmir

Prevention of Beggary Rules, 1964, provides the manner of getting a person

arrested. Sub-rule (1) of Rule 4 mandates that the officer-in-charge of the

PIL 24/2018 Page 104 of 196 police station "shall" cause a person arrested under Section 4 to be kept at

the police station until he is brought before a court.

So far as the remand of the person is concerned, the same would be to

the sick home, beggars' home or children home.

191. Thus, the immediate effect of the implementation of the

statutory provision is to remove the person perceived to be begging from the

society i.e. to eliminate them from the community. Simply put, the statutory

provisions and the rules render beggars invisible, only for the reason that

they are poor.

192. Such inhibiting effect was considered in the decision of the

Supreme Court reported at (1994) 6 SCC 632 R. Rajagopal v. State of

Tamil Nadu, wherein the Supreme Court considered the chilling effect on

the freedom of speech by allowing governmental institutions to sue for libel

in the following terms:

"19. The principle of Sullivan was carried forward -- and this is relevant to the second question arising in this case -- in Derbyshire County Council v. Times Newspapers Ltd, a decision rendered by the House of Lords. The plaintiff, a local authority brought an action for damages for libel against the defendants in respect of two articles published in Sunday Times questioning the propriety of investments made for its superannuation fund. The articles were headed "Revealed:

Socialist tycoon deals with Labour Chief" and "Bizarre deals of a council leader and the media tycoon". A preliminary issue was raised whether the plaintiff has a cause of action against the defendant. The trial Judge held that such an action was maintainable but on appeal the Court of Appeal held to the contrary. When the matter reached the House of Lords, it affirmed the decision of the Court of Appeal but on a different ground. Lord Keith delivered the judgment agreed to by all other learned Law Lords. In his opinion, Lord Keith recalled that in Attorney General v. Guardian Newspapers Ltd. (No. 2) popularly known as "Spycatcher case", the House of Lords had opined that "there are rights available to private citizens which

PIL 24/2018 Page 105 of 196 institutions of... Government are not in a position to exercise unless they can show that it is in the public interest to do so". It was also held therein that not only was there no public interest in allowing governmental institutions to sue for libel, it was "contrary to the public interest because to admit such actions would place an undesirable fetter on freedom of speech" and further that action for defamation or threat of such action "inevitably have an inhibiting effect on freedom of speech".

The learned Law Lord referred to the decision of the United States Supreme Court in New York Times v. Sullivan and certain other decisions of American Courts and observed -- and this is significant for our purposes--

"while these decisions were related most directly to the provisions of the American Constitution concerned with securing freedom of speech, the public interest considerations which underlaid them are no less valid in this country. What has been described as 'the chilling effect' induced by the threat of civil actions for libel is very important. Quite often the facts which would justify a defamatory publication are known to be true, but admissible evidence capable of proving those facts is not available."

Accordingly, it was held that the action was not maintainable in law."

(Emphasis supplied)

193. In Shreya Singhal, a recent decision of the Supreme Court

reported at (2010) 5 SCC 600 S. Khushboo v. Kanniammal has also been

considered, wherein it was observed as follows;

"47. In the present case, the substance of the controversy does not really touch on whether premarital sex is socially acceptable. Instead, the real issue of concern is the disproportionate response to the appellant's remarks. If the complainants vehemently disagreed with the appellant's views, then they should have contested her views through the news media or any other public platform. The law should not be used in a manner that has chilling effects on the "freedom of speech and expression".

(Emphasis by us)

194. In a judgment of the U. S. Supreme Court reported at 364 U.S.

339 (1960) Gomillion v. Lightfoot, the Supreme Court, sustained the

PIL 24/2018 Page 106 of 196 complaint which, if true, established that the "inevitable effects" of

redrawing of municipal boundaries, was to deprive the petitioners of their

right to vote for no reason other than that they were negro. It was held that

the inevitable effect "necessary scope and operation" of the legislation

abridged constitutional rights.

195. We have held above that begging constitutes exercise of the

right to freedom of speech and expression of the person engaging in the

activity. The impact of the criminalization of such activity by the impugned

legislation results in total prohibition of every type of begging, be it silent or

passive communication of the condition of beggar, a peaceful entreaty for

assistance or just the display of the pathetic condition of the beggar. A

purely content-based restriction stands imposed. The impact of the

prohibition is that it completely inhibits the freedom of speech and

expression of beggars and is certainly an undesirable fetter on their freedom

of speech. Criminalization of begging thus indubitably has a chilling effect

on begging which is induced by the threat of detention and criminal

prosecution under the impugned legislation.

196. In similar circumstances, the Supreme Court found Section 66A

of the Information Technology Act unconstitutional in Shreya Singhal

holding as follows:

"90. These two Constitution Bench decisions bind us and would apply directly on Section 66A. We, therefore, hold that the Section is unconstitutional also on the ground that it takes within its sweep protected speech and speech that is innocent in nature and is liable therefore to be used in such a way as to have a chilling effect on free speech and would, therefore, have to be struck down on the ground of overbreadth."

(Emphasis by us)

PIL 24/2018 Page 107 of 196

197. The inevitable effect of the implementation of the Jammu &

Kashmir Prevention of Beggary Act, 1960, and the Jammu & Kashmir

Prevention of Beggary Rules, 1964, is to render beggars invisible only for

the reason that they appear poor. Thus, on account of the width and sweep of

the definition of begging, the consequential impact of detention if perceived

to be begging or likely to beg, this law would deter and discourage all needy

persons from begging. Thus, the vague statute operates to completely inhibit

free exercise of the fundamental right of freedom of speech and expression,

which is the third concern articulated in Grayned v. City of Rockford. As a

result, because of its chilling effect on free speech as well, the impugned

legislation and the Rules thereunder have to be held unconstitutional and

struck down.

(XIII) Whether the legislation results in violation of the rights guaranteed under Article 14 of the Constitution of India?

198. The Beggary legislation has classified begging into that

permitted by the District Magistrate (exception to Section 2(a)(v)) and that

which is not (Section 2a(i) to (v)). The legislature has also bunched together

those begging of their own volition with such persons who have been

compelled to beg i.e., involuntary beggars.

199. The petitioner, Mr Suhail Rashid Bhat, has also complained that

the legislation results in violation of the protection afforded by Article 14 of

the Constitution of India.

200. Article 14 of the Constitution of India ensures equality before

the law to any person within the territory of India in the following terms:

PIL 24/2018 Page 108 of 196

"14. Equality before law.--The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India."

201. In the judgment of the Supreme Court reported at AIR 1952

SC 75 The State of West Bengal v. Anwar Ali Sarkar and another, a

challenge was laid to the validity of Section 5(1) of the West Bengal Special

Courts Act (X of 1950) on the ground that it offended Article 14 of the

Constitution as it laid down a procedure which was less advantageous to the

accused than the ordinary procedure and that it was based on an

unreasonable classification of persons to whom or the offence in respect of

which the special procedure laid down in the statute was to apply. The

majority of the Bench (Fazil Ali, Mahajan, B.K. Mukherjea, S. R. Dar,

Chandra Sekhara Aiyar and Bose JJ) held that the impugned legislation

offended Article 14 and was ultra vires of the Constitution of India. It was

observed that the impugned Act had completely ignored the principles of

classification followed in the Criminal Procedure and proceeded to lay down

a new procedure without making any attempt to particularize or classify the

offences or cases to which it applies (Para 24).

202. It was further held (in Anwar Ali Sarkar) that the Act itself laid

down a procedure which was less advantageous to the accused than the

ordinary procedure and this fact must in all cases be the root cause of the

discrimination which may result application of the Act (para 27).

It was held that it was no classification at all in the real sense of

the term as it was not based on any characteristics which are peculiar to

persons or cases which are to be subject to the special procedure prescribed

PIL 24/2018 Page 109 of 196 by the Act. The mere fact of classification was found not sufficient to relieve

a statute from the reach of the equality clause of Article 14. To get out of its

reach, it must appear that not only a classification has been made but also

that it is one based upon a reasonable ground on some difference which

bears a just and proper relation to the attempted classification and is not a

mere arbitrary selection. (Para 37).

203. It was also held (in Anwar Ali Sarkar) that speedy trial of

offences may be the reason and motive for the legislation but it does not

amount either to classification of offences of cases. The necessity of the

speedy trial was found to be too vague, uncertain and elusive classification

(para 37).

Even if it be said that the statute on the face of it is not

discriminatory, it is so in its effect and operation inasmuch as it vests in the

executive government un-regulated official discretion and, therefore, has to

be adjudged unconstitutional (para 38).

204. So far as the present consideration before us is concerned, an

important principle was laid down by Mukherjea, J in para 45 (of Anwar

Ali Sarkar) in the following terms:

"45. As regards the first point, it cannot be disputed that a competent legislature is entitled to alter the procedure in criminal trials in such way as it considers proper. Article 21 of the Constitution only guarantees that "no person shall be deprived of his life or personal liberty except in accordance with the procedure established by law." The word "law" in the Article means a State made law: A. K. Gopalan v. State of Madras, 1950 S.C.R. 88, but it must be a valid and binding law having regard not merely to the competency of the legislature and the subject it relates to, but it must not also infringe any

PIL 24/2018 Page 110 of 196 of the fundamental rights guaranteed under Part III of the Constitution. A rule of procedure laid down by law comes as much within the purview of Art. 14 as any rule of substantive law and it is necessary that all litigants, who are similarly situated, are able to avail themselves of the same procedural rights for relief and for defence with like protection and without discrimination : Weaver--Constitutional law, p.407 xxxxxxxxxxx."

(Emphasis supplied)

205. We may usefully advert to the pronouncement of the Canadian

Supreme Court reported at [1995] 2 SCR 513 : James Egan and John

Norris Nesbit v. Her Majesty The Queen in Right of Canada, wherein an

illuminating discussion and elaboration has been made by L'Heureux-Dube,

J, on Section 15 of the Canadian Charter of Rights and Freedoms, which

ensures equality before and under the law, equal protection and equal benefit

of the law without any discrimination to every individual, observed as

follows:

"To summarize, at the heart of s. 15 is the promotion of a society in which all are secure in the knowledge that they are recognized at law as equal human beings, equally capable, and equally deserving. A person or group of persons has been discriminated against within the meaning of s. 15 of the Charter when members of that group have been made to feel, by virtue of the impugned legislative distinction, that they are less capable, or less worthy of recognition or value as human beings or as members of Canadian society, equally deserving of concern, respect, and consideration. These are the core elements of a definition of "discrimination"-- a definition that focuses on impact (i.e. discriminatory effect) rather than on constituent elements (i.e. the grounds of the distinction).

Three clarifications should be made at this juncture. First, I acknowledge that the above definition essentially tries to put into words the notion of fundamental human dignity. Dignity being a notoriously elusive concept, however, it is clear that this definition cannot, by itself, bear the weight of s. 15 's task on its shoulders. It needs precision and elaboration. I shall attempt to demonstrate shortly how this approach to

PIL 24/2018 Page 111 of 196 discrimination can find more concrete and principled expression using many of the criteria that have in the past proven themselves to be highly apposite under the approach taken by this Court in Andrews. As such, it will become evident that the approach I suggest is far less a departure from that developed in Andrews than may appear at first blush. I believe many of those analytical tools to be valid. The problem, in my mind, lies not with the tools but with the framework within which they have in the past been employed. In short, if the framework is not perfectly suited for the tools, then we do not use the tools to their full potential.

Second, I note that although the utopian ideal would be a society in which nobody is made to feel debased, devalued or denigrated as a result of legislative distinctions, such an ideal is clearly unrealistic. The guarantee against discrimination cannot possibly hold the state to a standard of conduct consistent with its most sensitive citizens. Clearly, a measure of objectivity must be incorporated into this determination. This being said, however, it would be ironic and, in large measure, self-defeating to the purposes of s. 15 to assess the absence or presence of discriminatory impact according to the standard of the "reasonable, secular, able-bodied, white male". A more appropriate standard is subjective-objective -- the reasonably held view of one who is possessed of similar characteristics, under similar circumstances, and who is dispassionate and fully apprised of the circumstances. The important principle, however, which this Court has accepted, is that discriminatory effects must be evaluated from the point of view of the victim, rather than from the point of view of the state."

(Emphasis by us)

Thus, equality before the law and equal protection of law

envisages a guarantee against "discrimination" & "discriminatory" impact of

the action/ legislation which must be assessed from the perspective of the

victim, and not the State.

206. Making a reference to the pronouncement of the Canadian

Supreme Court reported at [1989] 1 SCR 143 Andrews v. Law Society of

British Columbia, L'Heureux-Dube, J, also analyzed the effect of impugned

legislative actions so far as discriminatory effect thereof was concerned and

observed thus:

PIL 24/2018 Page 112 of 196

"In order to realize fully the purpose of Charter rights, it is necessary to look to the effects of impugned legislative actions. In the context of s. 15 , no intention to discriminate need be demonstrated in order to render a particular distinction discriminatory. In Andrews, supra, in the course of his discussion on the nature of discrimination, McIntyre J. referred to the conclusions of this Court in the human rights case of Ontario Human Rights Commission v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536. I believe the following observation, at p. 173 of Andrews, to be at the core of this Court's philosophy regarding the notion of discrimination:

. . . no intent was required as an element of discrimination, for it is in essence the impact of the discriminatory act or provision upon the person affected which is decisive in considering any complaint. [Emphasis added.]"

(Emphasis by us)

207. The Supreme Court has considered the content and reach of the

great equalizing principle enunciated in Article 14 of the Constitution and

placing reliance on the pronouncement reported at (1974) 4 SCC 3 E.P.

Royappa vs. State of Tamil Nadu & Anr., observed as follows:

"7........Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be "right and just and fair" and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied."

(Emphasis by us)

208. The law on the contours of the protection against discrimination

as is guaranteed by Article 14 and the permissibility of creating classes for

differential treatment was also clearly established. In (1974) 4 SCC 3 E. P.

Royappa v. State of T. N, it has been authoritatively held that arbitrariness is

PIL 24/2018 Page 113 of 196 a well-accepted doctrine on which State action including legislation can be

struck down on the ground that same is violative of equality as guaranteed

under Article 14 of the Constitution of India. In the judgment by Bhagwati,

J., while considering the distinction between Articles 14 and 16, it has been

observed as follows:

"85. ........The basic principle which, therefore, informs both Articles 14 and 16 is equality and inhibition against discrimination. Now, what is the content and reach of this great equalising principle? It is a founding faith, to use the words of Bose. J., "a way of life", and it must not be subjected to a narrow pedantic or lexicographic approach. We cannot countenance any attempt to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be "cribbed, cabined and confined" within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14, and if it effects any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. They require that State action must be based on valid relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality. Where the operative reason for State action, as distinguished from motive inducing from the antechamber of the mind, is not legitimate and relevant but is extraneous and outside the area of permissible considerations, it would amount to mala fide exercise of power and that is hit by Articles 14 and 16. Mala fide exercise of power and arbitrariness are different lethal radiations emanating from the same vice: in fact the latter comprehends the former. Both are inhibited by Articles 14 and 16."

(Emphasis by us)

209. It is also well settled that even though a statutory provision

satisfies the requirements of other part III rights, it must meet the validity of

PIL 24/2018 Page 114 of 196 tests under Article 14 of the Constitution of India. In this regard, we may

refer to the following observations contained in para 6 & 7 of the

pronouncement of the Supreme Court reported at (1978) 1 SCC 248 Maneka

Gandhi v. Union of India.

"6......This Court also applied Article 14 in two of its earlier decisions, namely, The State of West Bengal v. Anwar Ali Sarkar (AIR 1952 SC 75) and Kathi Raning Rawat v. The State of Saurashtra (AIR 1952 SC 123) where there was a special law providing for trial of certain offences by a speedier process which took away some of the safeguards available to an accused under the ordinary procedure in the Criminal Procedure Code. The special law in each of these two cases undoubtedly prescribed a procedure for trial of the specified offences and this procedure could not be condemned as inherently unfair or unjust and there was thus compliance with the requirement of Article 21, but even so, the validity of the special law was tested before the Supreme, Court on the touchstone of Article 14 and in one case, namely, Kathi Raning Rawat's case, the validity was upheld and in the other, namely, Anwar Ali Sarkar's case, it was struck down. It was held in both these cases that the procedure established by the special law must not be violative of the equality clause. That procedure must answer the requirement of Article 14.

7. Now, the question immediately arises as to what is the requirement of Article 14: what is the content and reach of the great equalising principle enunciated in this article? There can be no doubt that it is a founding faith of the Constitution. It is indeed the pillar on which rests securely the foundation of our democratic republic. And, therefore, it must not be subjected to a narrow, pedantic or lexicographic approach. No attempt should be made to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits. We must reiterate here what was pointed out by the majority in E.P. Royappa v. State of Tamil Nadu [(1974) 4 SCC 3 : 1974 SCC (L&S) 165 : (1974) 2 SCR 348].

xxxxxxxxxxx"

(Emphasis by us)

PIL 24/2018 Page 115 of 196

210. It has been observed in AIR 2017 SC 4609 Shayara Bano v.

Union of India (at page 4822), that arbitrariness can be used to strike down

legislation under Article 14 as well. It is also well settled that arbitrariness in

legislation is very much a facet of unreasonableness in Article 19(2) to (6) as

has been laid down in several Judgments of the Supreme Court in the

following terms:

"(2) The second reason given is that a challenge under Article 14 has to be viewed separately from a challenge under Article 19, which is a reiteration of the point of view of A.K. Gopalan v. State of Madras, 1950 SCR 88: (AIR 1950 SC 27), that fundamental rights must be seen in watertight compartments.

We have seen how this view was upset by an eleven Judge Bench of this Court in Rustom Cavasjee Cooper v. Union of India, (1970) 1 SCC 248 : (AIR 1970 SC 564), and followed in Maneka Gandhi (AIR 1978 SC 597) (supra). Arbitrariness in legislation is very much a facet of unreasonableness in Article 19(2) to (6), as has been laid down in several Judgments of this Court, some of which are referred to in Om Kumar (infra) and, therefore, there is no reason why arbitrariness cannot be used in the aforesaid sense to strike down legislation under Article 14 as well."

(Emphasis by us)

211. Placing reliance on E. P. Royappa, the Supreme Court in

Shayara Bano considered several fundamental rights and observed that

fundamental rights must be read together and must overlap and fertilize each

other. The Supreme Court had also reiterated the position laid down in E. P.

Royappa that arbitrariness in State action was violative of Article 14 which

ensures fairness and equality of treatment and further that the principle of

reasonableness was an essential element of equality or non-arbitrariness

pervaded Article 14. It was specifically laid down that "procedure

contemplated by Article 21 must answer the test of reasonableness in order

to be in conformity with Article 14".

PIL 24/2018 Page 116 of 196

212. Before us, a challenge has been made to the "classification"

effected by the legislation. We find that Article 14 requires an examination

as to whether the legislation ensures 'equality' which this Constitutional

provision guarantees. The Supreme Court had occasion in the judgment

reported at (1979) 1 SCC 380 Special Courts Bill, 1978, In re, to examine

this aspect. While reiterating the permissibility of classification, the Supreme

Court had held that it was not open for the courts to insist on delusive

exactness or apply doctrinaire tests for determining the validity of

classification in any given case. However, at the same time, a classification

would be treated as justified only if it is not palpably arbitrary. The Supreme

Court had emphasized that the underlining principle in Article 14 of the

Constitution was to treat all persons similarly circumstanced alike, both in

privileges conferred and liabilities imposed. We may borrow the words of

the Supreme Court in para 72 in this regard as under:

"72......(4)...It only means that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed. Equal laws would have to be applied to all in the same situation, and there should be no discrimination between one person and another if as regards the subject matter of the legislation their position is substantially the same."

(Emphasis by us)

213. It is noteworthy that in In Re: Special Courts Bill, the Supreme

Court had reiterated the principle that the classification must not be arbitrary

but must be rational; that it must not only be based on some qualities or

characteristics which are to be found in all the persons grouped together and

not in others who were left out but such qualities and characteristics must

have a reasonable relationship to the object of the legislation.

PIL 24/2018 Page 117 of 196

214. The specific issue regarding permissibility of legislative

classification under Article 14 is also not res-integra. In the pronouncement

of the Supreme Court reported at (1981) 1 SCC 722 Ajay Hasia v. Khalid

Mujib Sehravardi, the court expounded on the scope of Article 14; the

permissibility of classification and also the guarantee against the

arbitrariness. The Supreme Court referred to the pronouncements in E. P.

Royappa as well as in Maneka Gandhi and laid down the distinction

between reasonableness and arbitrariness as also the contours of permissible

classification as do not negate equality. We extract para 16 of Ajay Hasia

which sheds valuable light on our consideration hereunder:

"16...... The true scope and ambit of Article 14 has been the subject-matter of numerous decisions and it is not necessary to make any detailed reference to them. It is sufficient to state that the content and reach of Article 14 must not be confused with the doctrine of classification. Unfortunately, in the early stages of the evolution of our constitutional law, Article 14 came to be identified with the doctrine of classification because the view taken was that that article forbids discrimination and there would be no discrimination where the classification making the differentia fulfils two conditions, namely, (i) that the classification is founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group; and (ii) that that differentia has a rational relation to the object sought to be achieved by the impugned legislative or executive action. It was for the first time in E.P.Royappa v. State of Tamil Nadu [(1974) 4 SCC 3, 38: 1974 SCC (L&S) 165, 200:(1974) 2 SCR 348] that this Court laid bare a new dimension of Article 14 and pointed out that that article has highly activist magnitude and it embodies a guarantee against arbitrariness.xxxxxx This vital and dynamic aspect which was till then lying latent and submerged in the few simple but pregnant words of Article 14 was explored and brought to light in Royappa case [(1975) 1 SCC 485: 1975 SCC (L&S) 99: (1975) 3 SCR 616] and it was reaffirmed and elaborated by this Court in Maneka Gandhi v. Union of India [(1978) 1 SCC 248] where this Court again speaking through one of us (Bhagwati, J.) observed: (SCC pp. 283-84, para 7)

PIL 24/2018 Page 118 of 196 xxxxxxxxx This was again reiterated by this Court in International Airport Authority case [(1979) 3 SCC 489] at p. 1042 (SCC p.

511) of the Report. It must therefore now be taken to be well settled that what Article 14 strikes at is arbitrariness because an action that is arbitrary, must necessarily involve negation of equality. The doctrine of classification which is evolved by the courts is not paraphrase of Article 14 nor is it the objective and end of that article. It is merely a judicial formula for determining whether the legislative or executive action in question is arbitrary and therefore constituting denial of equality. If the classification is not reasonable and does not satisfy the two conditions referred to above, the impugned legislative or executive action would plainly be arbitrary and the guarantee of equality under Article 14 would be breached.

Wherever therefore there is arbitrariness in State action whether it be of the legislature or of the executive or of an 'authority' under Article 12, Article 14 immediately springs into action and strikes down such State action. In fact, the concept of reasonableness and non-arbitrariness pervades the entire constitutional scheme and is a golden thread which runs through the whole of the fabric of the Constitution."

(Emphasis by us)

215. On this aspect, we may also usefully advert to the judicial

pronouncement reported at (1983) 1 SCC 305 D. S. Nakara v. Union of

India, wherein, after extracting the above observations of Bhagwati, J, in

Maneka Gandhi, the court observed thus:

"11. The decisions clearly lay down that though Article 14 forbids class legislation, it does not forbid reasonable classification for the purpose of legislation. In order, however, to pass the test of permissible classification, two conditions must be fulfilled, viz. (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of the group; and (ii) that that differentia must have a rational relation to the objects sought to be achieved by the statute in question [See Shri Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar & Ors.[5]]. The classification may be founded on differential basis according to objects sought to be achieved but what is implicit in it is that there ought to be a nexus, i.e. casual connection between the basis of classification and object of the statute under consideration. It is equally well settled by the decisions of this Court that Article 14 condemns

PIL 24/2018 Page 119 of 196 discrimination not only by a substantive law but also by a law of procedure."

(Emphasis by us)

Therefore, it is well settled that for a classification to be

permissible under Article 14 of the Constitution of India, it must be founded

on an intelligible differentia which clearly distinguishes persons/ things

which are grouped together from those left out from the group and secondly

such differentia must have a relation to the object sought to be achieved in

the statute in question.

216. It is also trite that (D. S. Nakara v. Union of India) a challenge

premised on an allegation of violation of Article 14 could be successfully

made on the ground of discrimination by not only the substantive law but

also the law of procedure.

217. That arbitrariness results in denial of equality and equal

protection of law, was also considered by the Supreme Court in (1984) 3

SCC 316 A. L. Kalra v. Project and Equipment Corpn., when it held as

follows:

"19...... It thus appears well-settled that Article 14 strikes at arbitrariness in executive/administrative action because any action that is arbitrary must necessarily involve the negation of equality. One need not confine the denial of equality to a comparative evaluation between two persons to arrive at a conclusion of discriminatory treatment. An action per se arbitrary itself denies equal of (sic) protection by law."

(Emphasis by us)

218. An argument has been pressed before us that both the

substantive statute as well as the rules framed thereunder suffer from

arbitrariness and must be struck down for violation of Article 14 of the

PIL 24/2018 Page 120 of 196 Constitution of India. The submission was that merely because a person

appears to be poor or was perceived to be poor, he was presumed to be a

beggar and the stringent penal provisions of the anti-begging law kicked in

exposing such person to the worst possible consequences including detention

in the police station or prison.

Therefore, a person, though actually poor, but did not appear to

be so, say for instance a taddily dressed beggar, can freely "wander about"

in public places without suffering any of the penal consequences. This

would be possible as he would not appear poor or be so perceived. Thus, the

entire classification is premised on appearance of a person and the

classification rests on an arbitrary perception by the enforcing agency that

the person was begging for alms.

219. It is also necessary to note that the legislation itself recognizes

that all solicitation of alms is not illegal. Section 2(a)(v) of the Jammu &

Kashmir Prevention of Beggary Act, itself recognizes that "soliciting money

or fee or gift for a purpose authorized by any law.............by the District

Magistrate" is not covered under the definition of begging as contained in

Section 2(a).

220. Thus, the legislation itself permits such begging as for which a

licence stands issued by the District Magistrate under Rule 3 of the Rules of

1964. A person begging for alms for himself and someone begging for a

cause for which he has a licence, are actually undertaking the same activity

i.e., seeking alms for charity. There is no justification at all for the

distinction which has been drawn for this classification.

PIL 24/2018 Page 121 of 196

221. In this regard, we may usefully advert to the remarks contained

in the judgment reported at 617 NYS 2d 429 State of New York v. Eric

Schrader that "no rational distinction can be made between the message

involved, whether the person standing in the corner says 'Help me, I am

homeless' or 'help the Homeless'"

222. We have observed that the legislation in the instant case has

also drawn no distinction between voluntary and involuntary begging. Even

the classification between persons begging for themselves and those seeking

alms for others with permission from the District Magistrate is neither based

on any intelligible differentia nor does it have any relationship to the object

sought to be achieved under the statute in question.

223. In (2001) 2 SCC 386 (at page 400-401) Om Kumar v. Union of

India, it has been held that the validity and adequacy of the differences is

actually application of the principles of proportionality in the following

terms:

32. So far as Article 14 is concerned, the courts in India examined whether the classification was based on intelligible differentia and whether the differentia had a reasonable nexus with the object of the legislation. Obviously, when the courts considered the question whether the classification was based on intelligible differentia, the courts were examining the validity of the differences and the adequacy of the differences. This is again nothing but the principle of proportionality. There are also cases where legislation or rules have been struck down as being arbitrary in the sense of being unreasonable [see Air India v. Nergesh Meerza [(1981) 4 SCC 335: 1981 SCC (L&S) 599] (SCC at pp. 372-373)]. But this latter aspect of striking down legislation only on the basis of "arbitrariness" has been doubted in State of A.P. v. McDowell and Co. [(1996) 3 SCC 709] ."

(Emphasis by us)

PIL 24/2018 Page 122 of 196

224. In the same context we may usefully refer to the observations of

the Supreme Court as contained in para 273 of the pronouncement reported

at AIR 2017 SC 4609 Shayara Bano v. Union of India (at page 4825)

which reads thus:

"273. The thread of reasonableness runs through the entire fundamental rights Chapter. What is manifestly arbitrary is obviously unreasonable and being contrary to the rule of law, would violate Article 14. Further, there is an apparent contradiction in the three Judges' Bench decision in McDowell (supra) when it is said that a constitutional challenge can succeed on the ground that a law is "disproportionate, excessive or unreasonable", yet such challenge would fail on the very ground of the law being "unreasonable, unnecessary or unwarranted". The arbitrariness doctrine when applied to legislation obviously would not involve the latter challenge but would only involve a law being disproportionate, excessive or otherwise being manifestly unreasonable. All the aforesaid grounds, therefore, do not seek to differentiate between State action in its various forms, all of which are interdicted if they fall foul of the fundamental rights guaranteed to persons and citizens in Part III of the Constitution."

(Emphasis by us)

225. In the light of the detailed discussion above, we have no

manner of doubt that the classification made by Section 2(a) of the Jammu &

Kashmir Prevention of Beggary Act, 1960, is arbitrary, irrational and

discriminatory. It has no nexus at all with the object sought to be achieved. It

fails to ensure equality before the law to the persons whom it targets.

(XIV) Right to life-the Constitutional guarantee under Article 21 of the Constitution of India-Impact of the legislation

226. We may briefly conduct an examination of another very

important constitutional protection to all persons. Article 21 of the

Constitution of India guarantees as a fundamental right that "no person shall

PIL 24/2018 Page 123 of 196 be deprived of his life or personal liberty except according to procedure

established by law".

227. Article 21 of the Constitution of India ensures that no person

shall be deprived of his life or personal liberty except by procedure

established by law. In this case, the impugned law enables detention of a

person perceived to be a beggar for the purposes of conducting the inquiry

into the allegations, resulting in deprivation of his liberty. The present

consideration therefore necessarily entails an inquiry into the question as to

whether the legislation results in violation of or impact on the right to life

guaranteed to all person under Article 21 of the Constitution of India as well.

228. Before examining as to whether the impugned legislation

infracts this valuable constitutional guarantee, it is essential to understand

the contours and concomitants of Article 21 of the Constitution of India, as

judicially recognized.

Concomitants of the guarantee under Article 21

229. In a judgment of the Supreme Court reported at (1978) 1 SCC

248 Maneka Gandhi v. Union of India (a seven Judge bench decision) P.

N. Bhagwati, J as his lordship then was, had observed that the expression

"personal liberty" in Article 21 is of the widest amplitude covering a variety

of rights which go to constitute the personal liberty of man and some of

which stand raised to the status of distinct fundamental rights and given

additional protection under Article 19.

230. In (1981) 1 SCC 608 Francis Coralie Mullin v. Administrator,

Union Territory of Delhi and others, the Supreme Court expounded on the

PIL 24/2018 Page 124 of 196 essentialities which comprise the right to life including the right to dignity.

The judgment was authored by P. N. Bhagwati, J, who observed as follows:

"....... We think that the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings. ......... Every act which offends against or impairs human dignity would constitute deprivation pro tanto of this right to live and it would have to be in accordance with reasonable, fair and just procedure established by law which stands the test of other fundamental rights." [para 8 of SCC]"

(Emphasis by us)

231. It is noteworthy that the Preamble of the Constitution of India

assures the "dignity of the individuals", Justice V. R. Krishna Iyer, J, in the

judgment reported at (1980) 3 SCC 526 Prem Shankar Shukla v. Delhi

Admn, pointing out that that the expression "dignity of the individual" is

mentioned in the Preamble to the Constitution of India, had observed that the

guarantee of human dignity forms a part of our constitutional culture.

232. What constitutes 'dignity' of a person? L'Heureux-Dube, J,

in a judgment of the Supreme Court of Canada reported at (1995) 29 CRR

(2nd) 79 at 106 Egan v. Canada, had observed that dignity is a notoriously

elusive and difficult concept to capture in precise terms but it needs no

elaboration that dignity necessarily entails an acknowledgement of the

knowledge and worth of every single individual as a member of our society.

The dignity of an individual would comprise recognition of the autonomy of

a person's private will, his freedom of choice and of action. Such choice and

PIL 24/2018 Page 125 of 196 autonomy is an essential part of right of life of every individual and has to be

respected irrespective of the economic and social standing of the person.

233. An extremely informative exposition of the meaning of

human dignity is found in a judgment of the Supreme Court of Canada

reported at (1999) 1 S.C.R. 497 Law v. Canada (Ministry of Employment

and Immigration) when it has been observed as follows:

"Human dignity means that an individual or group feels self- respect and self-worth. It is concerned with physical and psychological integrity and empowerment. Human dignity is harmed by unfair treatment premised upon personal traits or circumstances which do not relate to individual needs, capacities, or merits. It is enhanced by laws which are sensitive to the needs, capacities, and merits of different individuals, taking into account the context underlying their differences. Human dignity is harmed when individuals and groups are marginalized, ignored, or devalued, and is enhanced when laws recognise the full place of all individuals and groups within Canadian society."[at para 53] (Emphasis by us)

234. We find a valuable elaboration of the rights ensured by Article

21 in the judgment of the Supreme Court reported at AIR 1984 SC 802

Bandhua Mukti Morcha v. Union of India and others wherein the Court

held as follows:

"10. ... This right to live with human dignity enshrined in Article21 derives its life breath from the Directive Principles of State Policy and particularly clauses (e) and (f) of Article 39 and Articles 41 and 42 and at the least, therefore, it must include protection of the health and strength of workers, men and women, and of the tender age of children against abuse, opportunities and facilities for children to develop in a healthy manner and in conditions of freedom and dignity, educational facilities, just and humane conditions of work and maternity relief. These are the minimum requirements which must exist in order to enable a person to live with human dignity and no State -- neither the Central Government nor any State

PIL 24/2018 Page 126 of 196 Government -- has the right to take any action which will deprive a person of the enjoyment of these basic essentials."

(Emphasis by us)

235. In the judgment reported at (1990) 1 SCC 520 Shantistar

Builders v. Narayan Khimalal Totame, placed by Mr Suhail Rashid Bhat,

the petitioner before us, the Supreme Court explained that the right of food,

clothing, environment and shelter are essential components of the right to

life in the following terms:

"9. Basic needs of man have traditionally been accepted to be three -- food, clothing and shelter. The right to life is guaranteed in any civilized society. That would take within its sweep the right to food, the right to clothing, the right to decent environment and a reasonable accommodation to live in. The difference between the need of an animal and a human being for shelter has to be kept in view. For the animal it is the bare protection of the body; for a human being it has to be a suitable accommodation which would allow him to grow in every aspect -- physical, mental and intellectual. The Constitution aims at ensuring fuller development of every child. That would be possible only if the child is in a proper home. It is not necessary that every citizen must be ensured of living in a well-built comfortable house but a reasonable home particularly for people in India can even be mud-built thatched house or a mud-built fire-proof accommodation."

(Emphasis by us)

236. The right to education has also been held to be flowing from

Article 21 of the Constitution of India and stands so recognized in the

judgment reported at (1993) 1 SCC 645 Unni Krishnan J.P. v. State of

Andhra Pradesh, when the Supreme Court held thus:

"226. ...........1. The citizens of this country have a fundamental right to education. The said right flows from Article 21. This right is, however, not an absolute right. Its content and parameters have to be determined in the light of Articles 45 and 41. In other words every child/citizen of this

PIL 24/2018 Page 127 of 196 country has a right to free education until he completes the age of fourteen years. Thereafter his right to education is subject to the limits of economic capacity and development of the State."

(Emphasis by us)

237. It is noteworthy that above pronouncement led to a

Constitutional amendment and incorporation of Article 21A in Part-III of the

Constitution of India, which provides the right to free and compulsory

education for all children between the ages of 6 to 14 as a fundamental right.

Pursuant to this valuable amendment, the Right of Children to Free and

Compulsory Education Act, 2009, was enacted to implement the spirit,

object and intendment of the constitutional amendment.

238. Yet another valuable right as part of the right to life was

recognized by the Supreme Court in the judgment reported at (1997) 2 SCC

83 State of Punjab & Ors. v. Mohinder Singh Chawla & Ors, when it was

observed that "it is now settled law that right to health is integral to the

right to life. Government has a constitutional obligation to provide health

facilities".

Entitlement to protection of dignity, privacy and liberty

239. The right to personal liberty and entitlement to protection of

privacy is yet another important concomitant of and flowing from the right

to life guaranteed under Article 21 of the Constitution of India. It is also

derived from the right to freedom of speech and expression in Article

19(1)(a) of the Constitution and right to freedom of movement as contained

in Article 19(1)(d).

PIL 24/2018 Page 128 of 196

240. As to what would constitute the meaning and content of

personal liberty in Article 21 and the interplay amongst the other rights

guaranteed under Part III of the Constitution of India, we may usefully

advert to the observations of P. N. Bhagwati, J, in the pronouncement of the

Supreme Court reported at (1978) 1 SCC 248 Maneka Gandhi v. Union of

India, in the following terms:

"5. It is obvious that Article 21, though couched in negative language, confers the fundamental right to life and personal liberty. So far as the right to personal liberty is concerned, it is ensured by providing that no one shall be deprived of personal liberty except according to procedure prescribed by law. The first question that arises for consideration on the language of Article 21 is : what is the meaning and content of the words 'personal liberty' as used in this article ? This question incidently came up for discussion in some of the judgments in A. K. Gopalan v. State of Madras (AIR 1950 SC 27) and the observations made by Patanjali Sastri, J., Mukherjee, J., and S. R. Das, J., seemed to place a narrow interpretation on the words 'personal liberty' so as to confine the protection of Article 21 to freedom of the person against unlawful detention. But there was no definite pronouncement made on this point since the question before the Court was not so much the interpretation of the words 'personal liberty' as the inter- relation between Article 19 and 21. It was in Kharak Singh v. State of U.P. & Ors. (AIR 1963 SC 1295) that the question as to the, proper scope and meaning of the expression personal liberty' came up pointedly for consideration for the first time before this Court. The majority of the Judges took the view "that personal liberty' is used in the article as a compendious term to include within itself all the varieties of rights which go to make up the personal liberties' of man other than those dealt with in the several clauses of Article 19(1). In other words, while Article 19(1) deals with particular species or attributes of that freedom, 'personal liberty' in Article 21 takes in and comprises the residue". The Minority judges, however, disagreed with this view taken by the majority and explained their position in the following words: "No doubt the expression 'personal liberty' is a comprehensive one and the right to move freely is an attribute of personal liberty. It is said that the freedom to move freely is carved out of personal liberty and, therefore, the expression 'personal liberty' in Article 21 excludes that attribute. In our view, this is not a correct approach. Both are independent fundamental rights,

PIL 24/2018 Page 129 of 196 though there is overlapping. There is no question of one being carved out of another. The fundamental right of life and personal liberty has many attributes and some of them are found in Article 19. If a person's fundamental right under Article 21 is infringed, the State can rely upon a law to sustain the action, but that cannot be a complete answer unless the said law satisfies the test laid down in Article 19(2) so far as the attributes covered by Article 19(1) are concerned". There can be no doubt that in view of the decision of this Court in R. C. Cooper v. Union of India [(1970) 2 SCC 298] the minority view must be regarded as correct and the majority view must be held to have been overruled.xxxxxxxxx"

(Emphasis by us)

241. Article 12 of the Universal Declaration of Human Rights

(1948) refers to privacy stating thus:

"No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks."

242. India is also a party to the International Covenant of Civil and

Political Rights, Article 17 whereof refers to privacy in the following terms;

"No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home and correspondence, nor to unlawful attacks on his honour and reputation."

243. We may also usefully advert to the European Convention on

Human Rights, which mentions the following rights:

"1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority except such as is in accordance with law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the protection of health or morals or for the protection of the rights and freedoms of others."

PIL 24/2018 Page 130 of 196 (Emphasis by us)

244. So far as the development of the law of privacy in India is

concerned, we find the same considered in judgments on legislation

permitting domiciliary visits by authorities. In the judgment of the Supreme

Court reported at (1964) 1 SCR 332 Kharak Singh v. The State of U.P., the

Supreme Court was concerned with domiciliary visits under the U.P.

Regulations. The majority of the Bench referred to a pronouncement of the

U. S. Supreme Court reported at 94 US 113 (1877) Munn v. Illinois and

held that even though the Constitution of India does not make an express

right to privacy, it could be traced from the right to life as contained in

Article 21 of the Constitution.

All the seven judges constituting the Bench held that "right to

privacy" was an essential part of the right to life guaranteed under Article 21

of the Constitution. The Court held that Clause 236 of the U.P. Regulations

was bad in law as it offended Article 21 for the reason that there was no law

permitting interference in the right to privacy by such visits.

It is noteworthy that Subba Rao, J, while concurring that the

fundamental right to privacy was a part of the right to liberty as contained in

Article 21; observed that it was also a part of right to freedom of speech and

expression as contained in Article 19(1)(a) and the right to movement in

Article 19(1)(d) and held that the regulations permitting the surveillance

violated the fundamental right to privacy.

245. The next judgment on this issue thereafter was the celebrated

judgment of the Supreme Court reported at (1975) 2 SCC 148 Gobind v.

PIL 24/2018 Page 131 of 196 State of M.P. Placing reliance on well-known pronouncements of the

Supreme Court of United States of America reported at 381 US 479 (1965)

Griswold v. State of Connecticut and 410 US 113 (1973) Jane Roe v. Wade,

the Supreme Court of India had, in para 20, observed thus:

"There can be no doubt that the makers of our Constitution wanted to ensure conditions favourable to the pursuit of happiness. They certainly realized as Brandeis, J. said in his dissent in Olmstead v. United States, 277 US 438, 471 the significance of man's spiritual nature, of his feelings and of his intellect and that only a part of the pain, pleasure, satisfaction of life can be found in material things and therefore they must be deemed to have conferred upon the individual as against the Government a sphere where he should be let alone." [para 20 of SCC]

246. In this judgment Mathew, J. held that privacy and dignity

claims had to be examined with care and were to be denied only when an

important countervailing interest was shown to be superior or where a

compelling state interest was shown. If the Court finds that the claimed right

is entitled to protection as a fundamental privacy right, a law infringing it

must necessarily satisfy the compelling state interest test. The question

which would require to be answered is as to whether the state interest is of

such paramount importance as would justify an infringement of the right.

Therefore, the right was not absolute and also that the same had to be

examined on case to case basis.

247. In (1994) 6 SCC 632 R. Rajagopal v. State of Tamil Nadu, the

Supreme Court reiterated that the right to privacy was implicit in the right to

life and liberty guaranteed to the citizens of India by Article 21. This

necessarily included "the right to be left alone". A citizen has the right to

safeguard, amongst others, the privacy of his self.

PIL 24/2018 Page 132 of 196

248. The right to privacy stands accepted as implied in the

Constitution in the judgments reported at (1997) 1 SCC 301 People's Union

for Civil Liberties v. Union of India and (2003) 4 SCC 493 Sharda v.

Dharampal.

249. Most of the judgments on the subject in India have again

referred to some important judgments of the Supreme Court of the United

States. While the right to privacy in a challenge to wire-tapping or electronic

surveillance in the Supreme Court of United States was held not to be

subject to Fourth Amendment restrictions in the judgment reported at 277

US 438 (1928) Olmstead v. United States, however, in the dissent authored

by Justice Brandeis, the learned Judge had opined that the Fourth

amendment protected the right to privacy which meant "the right to be left

alone", and its purpose was "to secure conditions favourable to the pursuit

of happiness". While recognizing "the significance of man's spiritual nature,

of his feelings and intellect"; the right sought "to protect Americans in their

beliefs, their thoughts, their emotions and their sensations",

250. This minority view was accepted and became the law more than

forty years thereafter when by the judgment reported at 381 US 479 (1965):

Griswold v. State of Connecticut, the Supreme Court of USA invalidated

the State law prohibiting the use of drugs or devices of contraception and

counseling or aiding and abetting the use of contraceptives. The Court

referred to the protected interest as a right to privacy. These rights were

reiterated in the subsequent judgments reported at 405 US 438 (1972)

Eisenstadt v. Baired and in the off cited pronouncement reported as 410 US

113 (1973) Jane Roe v. Wade.

PIL 24/2018 Page 133 of 196 251. In the judgment of the US Supreme Court reported at 505 US

833 (1992) Planned Parenthood of Southeastern Pa v. Casey, the Supreme

Court explained the respect demanded by the Constitution for the autonomy

of the person in making certain personal choices stating as follows:

"These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State."

[page 851] (Emphasis supplied)

252. In Abbotsford (City) v. Shantz (2015) BCSC 1909, the concept

of liberty as part of human dignity recognized by the Canadian charter

stands elaborated upon. Reference has been made to observations made by

La Forest J. in the judgment of the Supreme Court of Canada reported at

(1995) 1 SCR 315 (R.B) entitled R. B. v. Children's Aid Society of

Metropolitan Toronto (para 80), which deserve to be considered in extenso

and read as follows:

"The above cited cases give us an important indication of the meaning of the concept of liberty. On the one hand, liberty does not mean unconstrained freedom; see Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486 (per Wilson J., at p.524); R. V. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713 (per Dickson C.J., at pp.785-86). Freedom of the individual to do what he or she wishes must, in any organized society, be subjected to numerous constraints for the common good. The state undoubtedly has the right to impose many types of restraints on individual behavior, and not all limitations will attract Charter scrutiny. On the other hand, liberty does not mean mere freedom from physical restraint. In a free and democratic society, the individual must be left room for personal autonomy to live his or her own life and to make decisions

PIL 24/2018 Page 134 of 196 that are of fundamental personal importance. In R. V. Morgentaler [1988] 1 S.C.R. 30, Wilson J. noted that the liberty interest was rooted in the fundamental concepts of human dignity, personal autonomy, privacy and choice in decisions going to the individuals fundamental being. She stated, at p.166:

Thus, an aspect of the respect for human dignity on which the Charter is founded is the right to make fundamental personal decisions without interference from the state. This right is a critical component of the right to liberty. Liberty, as was noted in Singh, is a phrase capable of a broad range of meaning. In my view, this right, properly construed, grants the individual a degree of autonomy in making decisions of fundamental personal importance."

(Emphasis supplied)

Thus, right to live with dignity as well as the right to privacy

are critical components of the right to liberty, all of which are essential

concomitants of the right to life guaranteed under Article 21 of the

Constitution of India.

253. On this aspect, we may also extract from the concurring

judgment of Dr. D. Y. Chandrachud, J. in (2018) 10 SCC 1 Navtej Singh

Johar v. Union of India (at page 231), wherein his Lordship has elaborated

on the linkage between the right to privacy, liberty and human dignity in the

following terms:

"462. The right to privacy is intrinsic to liberty, central to human dignity and the core of autonomy. These values are integral to the right to life under Article 21 of the Constitution. A meaningful life is a life of freedom and self- respect and nurtured in the ability to decide the course of living. In the nine judge Bench decision in Puttaswamy, this Court conceived of the right to privacy as natural and inalienable. The judgment delivered on behalf of four judges holds: (SCC p.365, para 42)

PIL 24/2018 Page 135 of 196 "42. Privacy is a concomitant of the right of the individual to exercise control over his or her personality. It finds an origin in the notion that there are certain rights which are natural to or inherent in a human being. Natural rights are inalienable because they are inseparable from the human personality. The human element in life is impossible to conceive without the existence of natural rights."

Bobde, J., in his exposition on the form of the "right to privacy" held thus: (K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, para 392) "392........Privacy, with which we are here concerned, eminently qualifies as an inalienable natural right, intimately connected to two values whose protection is a matter of universal moral agreement: the innate dignity and autonomy of man."

Nariman, J. has written about the inalienable nature of the right to privacy: (K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, para 490) "490...Fundamental rights, on the other hand, are contained in the Constitution so that there would be rights that the citizens of this country may enjoy despite the governments that they may elect. This is all the more so when a particular fundamental right like privacy of the individual is an "inalienable" right which inheres in the individual because he is a human being. The recognition of such right in the fundamental rights chapter of the Constitution is only a recognition that such right exists notwithstanding the shifting sands of majority governments."

Sapre, J., in his opinion, has also sanctified "privacy" as a natural right: (K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, para 557) "557. In my considered opinion, "right to privacy of any individual" is essentially a natural right, which inheres in every human being by birth... It is indeed inseparable and inalienable...it is born with the human being..."

PIL 24/2018 Page 136 of 196 These opinions establish that the right to privacy is a natural right.

xxxxxxxxxxxxxxxx"

469. Citizens of a democracy cannot be compelled to have their lives pushed into obscurity by an oppressive colonial legislationxxxxxxxxxx."

(Emphasis by us)

254. The Supreme Court has therefore recognized what are the

primary and basic needs of every human being. Thus, the protection of

health, freedom, food, clothing, shelter, educational facilities, just and

humane conditions of work and maternity benefits, privacy, dignity and

liberty are amongst the minimum requirements essential to ensure the right

to live.

255. The constitutionality of vagrancy/ anti begging legislations in

different parts of Canada (similar to the Jammu & Kashmir Prevention of

Beggary Act, 1960) have also been tested by courts in Canada. Judgments in

these cases also shed valuable light on the matter under consideration before

us.

256. The Supreme Court of British Columbia, Canada in Abbotsford

(City) v. Shantz (2015) BCSC 1909 has held that in view of protection

accorded to the right to life by the Canadian Constitution Act, 1982, the

Sections 14 and 15 of the Consolidated Parks Bylaw, and subsection 2.7(d)

of the Good Neighbour Bylaws are required to be struck down as not having

any force or effect to the extent that they apply to the City's homeless and

prohibit sleeping or being in a City park overnight or erecting a temporary

shelter without permits. The Court held as follows:

PIL 24/2018 Page 137 of 196

"Certain kinds of regulation of public spaces, which by definition limit citizens' fundamental freedoms, may be necessary and justifiable. But the protection of s. 7 (right to life) rights and freedoms will advance the dignity and autonomy of the City's homeless, by safeguarding their safety and security...I find, however, that the impugned Bylaws fail to minimally impair DWS' members' s.7 freedoms and rights, and lack overall proportionality between the benefits and the burdens of the effects of those regulations as they do almost nothing to accommodate the City's homeless' s.7 freedoms and rights. In the result, I conclude that the City has failed to justify the infringement of the s.7 rights of the City's homeless."

(Emphasis by us)

257. Again in Federated Anti-Poverty Groups of BC v. Vancouver

(City), (2002)BCSC 105, the Supreme Court of British Columbia, Canada

has held that general panhandling is the ability to provide for one's self (and

at the same time deliver the "message") and is an interest that falls within

the ambit of the constitutionally protected necessity of life.

258. The high value of human dignity and the worth of every human

life, irrespective of his financial health, stands recognized almost 40 years

ago by the Supreme Court of India in the judgment reported at (1980) 2 SCC

360 Jolly George Varghese v. Bank of Cochin. This was an appeal by

judgment debtors whose personal freedom was endangered because the court

below had issued warrants for their arrest and detention in civil prison on

account of their inability to make payment of an amount due to a bank which

claim of the bank had ripened into a decree and the liability not discharged

by the appellant. While considering the legality of the fetters on the personal

liberty of the appellants in the context of impoverished circumstances, the

Supreme Court had placed reliance on the obligations of the State under

international instruments including the Universal Declaration of Human

PIL 24/2018 Page 138 of 196 Rights and the International Covenant of Civil and Political Rights in

addition to the rights guaranteed to every person under Article 21 of the

Constitution of India and held as follows;

"10. Equally meaningful is the import of Article 21 of the Constitution in the context of imprisonment for non-payment of debts. The high value of human dignity and the worth of the human person enshrined in Article 21, read with Article 14 and 19, obligates the State not to incarcerate except under law which is fair, just and reasonable in its procedural essence. Maneka Gandhi case [(1978) 1 SCC 248] as developed further in Sunil Batra v. Delhi Administration [(1978) 4 SCC 494 :

1979 SCC (Cri) 155], Sita Ram v. State of U.P. [(1979) 2 SCC 656 : 1979 SCC (Cri) 576 : (1979) 2 SCR 1085] and Sunil Batra v. Delhi Administration [WP No. 1009 of 1979, decided on December 20, 1979] lays down the proposition. It is too obvious to need elaboration that to cast a person in prison because of his poverty and consequent inability to meet his contractual liability is appalling. To be poor, in this land of daridra Narayana, is no crime and to recover debts by the procedure of putting one in prison is too flagrantly violative of Article 21unless there is proof of the minimal fairness of his willful failure to pay in spite of his sufficient means and absence of more terribly pressing claims on his means such as medical bills to treat cancer or other grave illness.

Unreasonableness and unfairness in such a procedure is inferable from Article 11 of the Covenant. But this is precisely the interpretation we have put on the proviso to Section 51 CPC and the lethal blow of Article 21 cannot strike down the provision, as now interpreted."

(Emphasis by us)

259. With regard to the requirement of mandatory detention of a

person perceived to be begging and confinement irrespective of his

innocence or guilt, we are reminded of the observations of Krishna Iyer, J, in

the judgment reported at AIR 1981 SC 674 Gopalanachari v. State of

Kerala, when he stated thus:

".......If men can be whisked away by the police and imprisoned for long months and the court can keep the cases pending without thought to the fact that an old man is lying in cellular confinement without hope of his case being disposed of, Article

PIL 24/2018 Page 139 of 196 21, read with Articles 14 and 19 of the Constitution, remain symbolic and scriptural rather than a shield against unjust deprivation. Law is not a mascot but a defender of the faith. Surely, if law behaves lawlessly, social justice becomes a judicial hoax."

(Emphasis by us)

260. We may also advert to the position under international

instruments. Article 23(1) of Universal Declaration of Human Rights, 1948

provides as under:

"(1) Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment."

261. Article 6(1) of the International Covenant of Civil and

Political Rights, provides as under:

"1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life."

262. We may also extract Article 11 of the International Covenant

of Civil and Political Rights, which reads as follows:

"No one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation."

263. Thus, it would appear that the international instruments have

militated against deprivation of personal freedom for non-payment of

amount due under a contract. They also seek to guarantee means of

economic empowerment by guaranteeing right to work, free choice of

employment as well as protection against employment.

PIL 24/2018 Page 140 of 196

264. We may also note that the provisions of the Constitution of

Jammu & Kashmir, 1956, which sought to achieve for its citizens the

following:

"13. State to establish a socialist order of society for the promotion of welfare of the people The prime object of the State consistent with the ideals and objectives of the freedom movement envisaged in "New Kashmir" shall be the promotion of the welfare of the mass of the people by establishing and preserving a socialist order of society wherein all exploitation of man has been abolished and wherein justice- social, economic and political-shall inform all the institutions of national life."

(Emphasis by us)

265. Thus, there is a constitutional mandate under the Constitution

of Jammu & Kashmir, 1956, upon the State to ensure its citizens justice-

social economic and political and a society that promotes welfare of all.

266. Further, Section 19(a) and (d) of the State Constitution enjoin upon the State the following:

"19. Right to work and to public assistance in certain cases The State shall, within the limits of its economic capacity and development, make effective provision for securing-

(a) that all permanent residents, men and women equally, have the right to work, that is, the right to receive guaranteed work with payment for labour in accordance with its quantity and quality subject to a basic minimum and maximum wages established by law;

(b) xxxxxxxxxxxxx

(c) xxxxxxxxxxxxx

(d) that all permanent residents have adequate maintenance in old age as well as in the event of sickness, disablement, unemployment and other cases of undeserved want by providing social insurance, medical aid, hospitals, sanatoria and health resorts at State expense.

Xxxxxxxxxxxxxx"

(Emphasis by us)

PIL 24/2018 Page 141 of 196

267. The State thus was constitutionally required to make

provisions for securing amongst others the right to work, adequate

maintenance in the event of unemployment and other cases of undeserved

want by providing social insurance etc.

268. We may also note Section 23 of the Constitution of Jammu

& Kashmir, 1956 which provides as follows:

"23. Protection of educational, material and cultural interests of socially and economically backward sections The State shall guarantee to the socially and educationally backward sections of the people special care in the promotion of their educational, material and cultural interests and protection against social injustice."

(Emphasis by us)

269. It is manifest therefrom that the residents of Jammu &

Kashmir stood constitutionally protected against social injustice.

270. We have noted that a person is compelled to beg on account of

abject poverty and unable to secure sustenance. Mr Sheikh Feroz Ahmad,

learned Dy.AG, is unable to point out anything in the counter affidavit

which would show that the State Government had discharged the

constitutional mandate under Section 19(a) and (d) of the Constitution of

Jammu and Kashmir to make any provision for securing the "right to work"

or any measures providing social insurance which would enable adequate

maintenance in the event of unemployment and other cases of undeserved

want of the citizens. The State has not discharged its obligation to secure the

protection of persons in Jammu & Kashmir against the social injustice as

warranted under Section 23 of the Constitution.

PIL 24/2018 Page 142 of 196 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 as is required

under Section 13 of the State Constitution.

271. We also find that no effort stands made by the State or its

agencies to discharge its obligation to identify, deal with the causes of

destitution of the beggars and to address the same.

272. 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.

273. Legislations which clothe and empower authorities and

agencies with drastic powers, have been found generally to contain "good

faith" clauses which are intended to insulate bonafide actions of these

authorities/ officers working the enactment from prosecution of the same.

For instance, Section 18 of the Lepers Act, 1898, contains the protection to

persons acting bona fide under Act- It states that no suit, prosecution or

other legal proceeding shall lie against any officer or person in respect of

anything done in good faith or intended to be done under, or in pursuance of,

the provisions of this Act. Similar protection is found in Section 18 of the

Unlawful Activities Prevention Act, 1967; Section 16 of the National

Security Act, 1980; Section 428 of the Companies Act, 2013, amongst other

legislations.

PIL 24/2018 Page 143 of 196

The Jammu & Kashmir Prevention of Beggary Act, does not

contain any such protection suggesting legislative arrogance in that it does

not expect any complaint against the authorities working this law in view of

the powerless status of the targeted population.

274. It is obvious that the legislation is steeped in prejudice against

poverty and premised on an absolute presumption of potential criminality of

those faced with choicelessness, necessity and undeserved want of those

who have no support at all, institutional or otherwise and are bereft of

resources of any kind. The legislation in fact manifests the complete apathy

of the State and abdication of the Constitutional functions and public law

obligations, when instead of providing support, it has criminalized poverty

and exposed the extreme poor and marginalized to penal prosecutions and

punishment.

275. The criminalization of begging, undeniably adversely impacts

the most vulnerable people in the society i.e., that group of people who do

not have access to basic essentialities as food, shelter, health and

criminalization of begging ignores the reality that persons who are begging

are the poorest of the poor and the most marginalized in the society.

Criminalization of poverty results in further deprivation and social

exclusion.

276. Denial of the right to beg i.e. to ask for alms will push this

group of extreme poor to further deprivation, let alone upholding or enabling

their right to entitlement and right to decent living conditions.

PIL 24/2018 Page 144 of 196

277. Poverty, and the consequential begging, is not out of choice but

compelled out of the circumstances. The impugned legislation treats the

targeted population, that is beggars, as having no personal autonomy or

entitlement to the freedom to make a choice so far as their life and conduct is

concerned. The dignity of the targeted individuals is irreparably harmed by

the unfair treatment wielded out to them which is directly based on their

circumstances. The treatment is completely insensitive to the individual

needs and fails to take into account the fact that these are persons who are

already marginalized in life, living on the fringes of the communities

without the bare essentials for mere existence.

278. The United Nations Special Rapporteur in a report on "Extreme

Poverty and Human Rights Magdalena Sepulveda Carmona, 32, U.N.

Doc. A/66/265 (Aug. 4, 2011)" has conducted an in-depth analysis on

extreme poverty and human rights as well as several laws, regulations and

practices that punish, segregate, control and undermine the autonomy of a

person's living in poverty. It has been found in this report that:

"5. States have long recognized that poverty is a complex human condition characterized by sustained or chronic deprivation of the resources, capabilities, choices, security and power necessary for the enjoyment of an adequate standard of living and other economic, civil, cultural, political and social rights. Poverty is not an autonomous choice, but rather a multifaceted situation from which it may be difficult, if not impossible, to escape without assistance. Persons living in poverty are not to blame for their situation; accordingly, States must not punish or penalize them for it. Rather, States must adopt wide-reaching measures and policies designed to eliminate the conditions that cause, exacerbate or perpetuate poverty, and ensure the realization of all economic, social, cultural, civil and political rights of those living in poverty.

6. Penalization policies reflect a serious misunderstanding of the realities of the lives of the poorest and most vulnerable

PIL 24/2018 Page 145 of 196 and ignorance of the pervasive discrimination and mutually reinforcing disadvantages that suffer.

7. Penalization measures respond to discriminatory stereotypes that assume that persons living in poverty are lazy, irresponsible, indifferent to their children's health and education, dishonest, undeserving and even criminal.xxxxxxx"

(Emphasis by us)

279. The report also notes the disproportionate impact of poverty on

women and that they are particularly vulnerable to penalization measures. It

also records that "Bans on begging and vagrancy represent serious

violations of the principles of equality and non-discrimination. Such

measures give law enforcement officials wide discretion in their application

and increase the vulnerability of persons living in poverty to harassment and

violence. They serve only to contribute to the perpetuation of discriminatory

societal attitudes towards the poorest and most vulnerable."

280. It is not justifiable to imprison a person who has been

compelled to resort to begging as a means of subsistence especially when the

State is itself responsible on account of economic or other factors to

implement the constitutional guarantee of a society which is free from all

forums and deprivation.

281. We find that even liberty guaranteed under Article 21 has been

subjected to principles of proportionality. In (2001) 2 SCC 386 (400) Om

Kumar v. Union of India, the Supreme Court had observed thus:

31. Article 21 guarantees liberty and has also been subjected to principles of "proportionality". Provisions of the Criminal Procedure Code, 1974 and the Indian Penal Code came up for consideration in Bachan Singh v. State of Punjab [(1980) 2 SCC 684 : 1980 SCC (Cri) 580] the majority upholding the legislation. The dissenting judgment of Bhagwati, J.

(see Bachan Singh v. State of Punjab [(1982) 3 SCC 24 : 1982

PIL 24/2018 Page 146 of 196 SCC (Cri) 535]) dealt elaborately with "proportionality" and held that the punishment provided by the statute was disproportionate.

(Emphasis by us)

282. Section 3 of the Act, 1960, which makes begging an offence;

Section 4 which enables mandatory arrest without a warrant, detention and

imprisonment; Section 5 which permits a summary inquiry and detention for

purpose therefore; Section 6 which permits imposition of a penalty and

Section 7 which envisages punishment for escaping from the place of

detention of persons who are compelled to beg in order to meet the basic

needs for bare survival which is way below even the minimum level of

sustenance, have a clearly disproportionately impact and violate rights of

these persons guaranteed under Article 21 of the Constitution of India and

cannot be sustained.

283. Rule 4 of the J&K Prevention of Begging Rules, 1964,

prescribes the manner of detention of the person; Rule 5 provides for a

summary procedure thereof. Rule 6 completely strips the person detained of

his privacy and dignity by compelling him to submit to medical examination

without any option.

284. Rule 6(a)(ii) mandates every person is detained to submit

"trimming or shaving of the hair on any part of the person" as may "in the

opinion of the medical officer" be necessary. The detenue has no option

whatsoever in the matter. Similarly, under sub-rule (iii) of Rule 6(a), it is

mandated that every person detained in the home shall submit to "cleansing

and washing of the body with such materials as may be provided and the

complete removal of clothing in order to secure this object". The detenue

PIL 24/2018 Page 147 of 196 has no volition either as to the cleansing or washing or to the materials with

which he is required to do so. The delegated legislation requires "complete

removal of clothing" to secure the object of the rule. Under clause (b) of

Rule 6(1), the detenue is mandated to "wear such clothes as the Officer-in-

Charge of the Home may from time to time direct".

285. To secure compliance of the above provisions, Rule 6(2) even

enables the authorities "use of minimum physical force" for the purpose.

286. Under Rule 8, money, valuables and other articles found with the

person detained are required to be entered in a register.

287. The proviso to sub-rule (2) of Rule 8, however, enables the

Officer-in-Charge of the Home to destroy clothing, bedding or articles as are

considered on hygienic grounds or if the same is "ragged" or suffering from

any contagious disease. Again, as to whether an article is ragged or not is

left to the absolute discretion of the Officer-in-Charge of the Home while the

owner thereof i.e. the person detained has no say or option in the matter at

all.

288. Rule 9 of the Jammu & Kashmir Prevention of Beggary Rules,

1964, inter alia enumerates that person detained shall not refuse to receive

any training arranged or ordered for him or do the work allotted to him.

289. Rule 9 vests absolute power over the detained person in the

authorities at the Sick Home/ Beggar's Home/ Children Home and gives

unchecked power to the authorities manning these facilities over the person

detained.

PIL 24/2018 Page 148 of 196

290. The deprivations and compulsions imposed under Rules 6, 8,

and 9 as stand envisaged and permitted under the Rules of 1964 in the

detention centers are also an extreme intrusion on the privacy of the detained

person and tantamounts to infringement of his right to privacy assured under

Article 21 of the Constitution of India. These Rules enable treating the

detained person with utmost disdain and disrespect, violate his dignity, thus

also eroding his self worth and are an assault on the guarantee contained in

Article 21 of the Constitution of India.

291. We thus hold that the mandate under the Jammu & Kashmir

Prevention of Beggary Rules, 1964, violates the privacy and dignity of the

person detained in the most intrusive manner possible infringing all the

rights of the person under Article 21 of the Constitution of India.

(XV) Directive Principles of State Policy

292. It is also essential to note that Part IV of the Constitution of

India enlists the "Directive Principles of State Policy". These principles

obligate the State to take positive action in certain circumstances so as to

promote the welfare of the people and achieve economic democracy.

Guidance and direction is given to the legislatures as well as the executive as

to the manner in which they should exercise their power (Ref: (1996) 4 SCC

37 Paschim Banga Khet Mazdoor Samity v. State of Bengal). It has been

stated that while fundamental rights seek to introduce an egalitarian society

and to ensure liberty for all, the directive principles seek to achieve a welfare

state. The two together constitute the conscience of the Constitution (Ref:

MP Jain "Indian Constitution Law, 6th Edition page 1972).

PIL 24/2018 Page 149 of 196 293. Social and economic justice stands raised to the level of a

fundamental right (Ref: (1997) 9 SCC 377 Air India Statutory Corpn. V.

United Labour Union; (1996) 4 JT (SC) 555 Dalmia Cement (Bharat) Ltd.

v. Union of India; (1992) 1 SCC 441 : C.E.S.C. Ltd. v. S. C. Bose).

294. In the judgment of the Supreme Court reported at (1997) 11

SCC 121 Ahmedabad Mun. Corp. v. Nawabkhan Gulab Khan, the

Preamble of the Constitution of India, the fundamental rights guaranteed

under Part III and the Directive Principles under Part IV of the Constitution

have been characterized as the 'trinity' of the Constitution of India.

295. Article 39 has enumerated the object towards which the State

should direct its policy. We extract hereunder the relevant extract thereof:

"39. Certain principles of policy to be followed by the State.- The State shall, in particular, direct its policy towards securing-

"(a) that the citizens, men and women equally, have the right to an adequate means of livelihood;

(b) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good;

(c) that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment;

(d) xxxxxxxxxxx

(e) that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength;"

(Emphasis supplied)

The Constitution of India has thus specifically mandated that

the State should aim its policies towards providing social security to meet all

cases.

PIL 24/2018 Page 150 of 196

296. It is well settled that a court will not issue an order or writ of

mandamus to the Government to fulfill a directive principle (Ref: (1983) 3

SCC 307 : Ranjan Dwivedi v. Union of India; (2000) 6 SCC 224 : Lily

Thomas v. Union of India). However, courts are bound to "evolve, affirm

and adopt principles of interpretation which will further and not hinder the

goals set out in the Directive Principles of State Policy." (Ref: U.B.S.E.

Board v. Hari Shankar : AIR 1979 SC 65 at 69 : (1978) 4 SCC 16; P. M.

Ahswathanarayand v. State of Karnataka, Ibid., at 109; See also Steel

Authority of India Ltd. v. National Union Waterfront Workers, (2001) 7

SCC 1, at page 17 : AIR 2001 SC 3527; Orissa Textile & Steel Ltd. v. State

of Orissa, (2002) 2 SCC 578, at page 594 : AIR 2002 SC 708; Ashoka

Smokeless Coal India (P) Ltd. v. Union of India, (2007) 2 SCC 640, at page

682 : (2007) 1 JT 125; State of U.P. v. Jeet S. Bisht, (2007) 6 SCC 586, at

page 614 : (2007) 8 JT 59).

297. Thus, the Directive Principles of State Policy would guide the

exercise of legislative power without controlling the same. (Ref: Deep

Chand v. State of Uttar Pradesh, AIR 1959 SC 648, 664 : 1959 Supp (2)

SCR 8. In re Krishnadas Mondal, AIR 1981 Cal 11).

298. Directive Principles of the State policy have been enumerated

in Part IV of the Constitution of Jammu & Kashmir, 1954, which read thus:

12. Application of the principles contained in this Part The provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the State and it shall be the duty of the State to apply these principles in making laws.

13. State to establish a socialist order of society for the promotion of welfare of the people

PIL 24/2018 Page 151 of 196 The prime object of the State consistent with the ideals and objectives of the freedom movement envisaged in "New Kashmir" shall be the promotion of the welfare of the mass of the people by establishing and preserving a socialist order of society wherein all exploitation of man has been abolished and wherein justice-social, economic and political-shall inform all the institutions of national life.

14. Economy of the State to be developed in a planned manner Consistently with the objectives outlined in the foregoing section, the State shall develop in a planner manner the productive forces of the country with a view to enriching the material and cultural life of the people and foster and protect--

(a) the public sector where the means of production are owned by the State;

(b) the co-operative sector where the means of production are co-operatively owned by individuals or groups of individuals; and

(c) the private sector where the means of production are owned by an individual or a corporation employing labour; provided that the operation of this sector is not allowed to result in the concentration of wealth or of the means of production to the common detriment.

15. Stat to ensure speedy improvement in standard of living of rural masses.

The State shall endeavour to organize and develop agriculture and animal husbandry by bringing to the aid of the cultivator the benefits of modern and scientific research and techniques so as to ensure a speedy improvement in the standard of living as also the prosperity of the rural masses.

19. Right to work and to public assistance in certain cases The State shall, within the limits of its economic capacity and development, make effective provision for securing-

(a) that all permanent residents, men and women equally, have the right to work, that is, the right to receive guaranteed work with payment for labour in accordance with its quantity and quality subject to a basic minimum and maximum wages established by law;

(b) that the health and strength of workers, men and women and the tender-age of children are not abused and that permanent residents are not forced by economic necessity to enter avocations unsuited to their sex, age or strength;

(c) that all worker, agricultural, industrial or otherwise, have reasonable, just and humane conditions of work

PIL 24/2018 Page 152 of 196 with full enjoyment of leisure and social and cultural opportunities;

(d) that all permanent residents have adequate maintenance in old age as well as in the event of sickness, disablement, unemployment and other cases of undeserved want by providing social insurance, medical aid, hospitals, sanatoria and health resorts at Stat expense.

21. Rights of children The State shall strive to secure--

(a) to all children the right to happy childhood with adequate medical care and attention; and

(b) to all children and youth equal opportunities in education and employment, protection against exploitation and against moral or material abandonment.

22. Rights of women The State shall endeavour to secure to all women--

(a) the right to equal pay for equal work;

(b) the right to maternity benefits as well as adequate medical care in all employments;

(c) the right to reasonable maintenance, extending to cases of married women who have been divorced or abandoned;

(d) the right to full equality in all social, educational, political and legal matters;

(e) special protection against discourtesy, defamation, holliganism and other forms of misconduct.

23. Protection of educational, material and cultural interests of socially and economically backward sections The State shall guarantee to the socially and educationally backward sections of the people special care in the promotion of their educational, material and cultural interests and protection against social injustice.

24. Duty of the State to improve public health The State shall make every effort to safeguard and promote the health of the people by advancing public hygiene and by prevention of disease through sanitation, pest and vermin control, propaganda and other measures, and by ensuring widespread, efficient and free medical services throughout the State and, with particular emphasis, in its remote and backward regions."

PIL 24/2018 Page 153 of 196

299. So far as the enforceability of these principles is concerned, the

jurisprudence with regard to the Constitution of India would squarely apply

to these Directive Principles as well.

300. It is trite that the values underlying the Directive Principles

must necessarily creep into interpretation of economic and social welfare

legislation. We find that the prescription under Article 39 of the Constitution

of India and Part IV of Constitution of Jammu & Kashmir has been

completely overlooked while enacting and implementing the provisions of

the Jammu & Kashmir Prevention of Beggary Act, 1960, and the Rules

framed thereunder.

(XVI) Obligations under International Instruments

301. We have heretofore adverted to the article 12 of the Universal

Declaration of Human Rights and Article 6(1) and 17 of the International

Convention on Civil and Political Rights which India has ratified. These

instruments impose obligations on the States to protect all individuals from

violations of the stated rights.

302. The legislation which we are examining results in violation of

the rights of the most marginalized in the community. We have found that

the working of the law in question impacts the right to life, which includes

their right to the privacy and dignity of the individuals and violates their

right to freedom from discrimination. The implementation of the law results

in denial of equal protection of the law to the persons who are prosecuted

under this law.

PIL 24/2018 Page 154 of 196

303. Penal provisions must conform to the principles of the

International Law and instruments that India has ratified while guaranteeing

the rights guaranteed to all individuals under the Constitution of India.

304. The above discussion manifests that the criminal law provisions

that, so far as beggars are concerned, fail to even recognize the rights

ensured to all individuals under the afore stated international instruments.

(XVII) Working of Anti Begging Legislations

305. In order to ensure that justice results from the outcome of our

consideration, it is necessary to consider the working of the existing laws

which have criminalized begging and the outcome of their implementation.

We do not have any empirical study on this subject or statistical data nor do

we have the benefit of jurisprudential developments within the country.

306. What further can this court examine for completing meaningful

examination of the Challenge? Reference may usefully be made to the

principles laid down by the Supreme Court in the pronouncement reported at

AIR 1960 SC 554 Hamdard Dawakhana and anr. v. Union of India and

others, wherein authoritative delineation of the matters which are required to

be taken into consideration while examining a challenge to the

constitutionality of an enactment have been laid down. The Supreme Court

has laid down the principles thus:

"8. Therefore, when the constitutionality of an enactment is challenged on the ground of violation of any of the articles in Part III of the Constitution, the ascertainment of its true nature and character becomes necessary, i.e., its subject matter, the area in which it is intended to operate, its purport and intent have to be determined. In order to do so it is legitimate to take into consideration all the factors such as history of the

PIL 24/2018 Page 155 of 196 legislation, the purpose thereof, the surrounding circumstances and conditions, the mischief which it intended to suppress, the remedy for the disease which the legislature resolved to cure and the true reason for the remedy; Bengal Immunity Company Ltd. v. The State of Bihar, 1955-2 SCR 603 at pp.632: ((S) AIR 1955 SC 661 at p.674); R. M. D. Chamarbaughwala v. Union of India, 1957 SCR 930 at p.936:

((S) AIR 1957 SC 628 at p. 631); Mahant Moti Das v. S. P. Sahi, AIR 1959 SC 942 at p.948..

9. Another principle which has to borne in mind in examining the constitutionality of a statute is that it must be assumed that the legislature understands and appreciates the need of the people and the laws it enacts are directed to problems which are made manifest by experience and that the elected representatives assembled in a legislature enact laws which they consider to be reasonable for the purpose for which they are enacted. Presumption is, therefore, in favour of the constitutionality of an enactment.

12. In England as far back as 1889, an Act called the Indecent Advertisements Act (52 and 53 Viet. Ch. 18) was passed to suppress indecent advertisements in which advertisements relating to syphilis, gonorrhoea, nervous debility or other complaints or infirmity arising from intercourse was prohibited. In 1917 the Venereal Diseases Act (7 and 8 Geo. V Ch. 21) was passed in England. This placed restrictions on advertisements relating to treatment for venereal diseases.

In 1941, The Pharmacy and Medicine Act, 1941 (4 and 5 Geo. VI Ch. 42) was passed which corresponds in material particulars to the impugned Act. It cannot be said that there was no material before Parliament on the basis of which it proceeded to enact the impugned legislation. This material shows the history of the legislation, the ascertained evil intended to be cured and the circumstances in which the enactment was passed. In Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar, 1959 SCR 279 at p.297: (AIR 1958 SC 538 at p.548), Das C. J., observed:-

"that in order to sustain the presumption of constitutionality the court may take into consideration matters of common knowledge, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation;"

Thus it is open to the court for the purpose of determining the constitutionality of the Act to take all these facts into consideration and in the present case we find that there was the evil of self-medication, which both in this country and in other countries, the medical profession and those, who were

PIL 24/2018 Page 156 of 196 conversant with its dangers, had brought to the notice of the people at large and the Government in particular. They had also warned against the dangers of self-medication and of the consequences of unethical advertisement relating to proprietary medicines particularising those diseases which were more likely to be affected by the evil. There is reason, therefore, for us to assume that the state of facts existed at the time of the legislation which necessitated the Act. These facts we have already set out and it is not necessary to reiterate them."

(Emphasis by us)

307. Guided by the above authoritative principles, we have therefore

undertaken a search for any studies on similar existing legislations. Some

light is shed on this aspect in writings by different authors on the subject. In

an article published in: 43/44 Economic and Political Weekly 33(2008) titled

"Ostensible Poverty, Beggary and the Law", Dr. Usha Ramanathan has

assimilated episodical evidence about the impunity that has developed

through the apathy and casual disregard of law in dealing with ostensible

poverty. Dr Ramanathan examined available material regarding the Bombay

Prevention of Begging Act, 1959, in Delhi and Mumbai and has specifically

commented that the anti-beggary legislation bears "bold signatures of

unconstitutionality which, if it had affected classes more proximate to

power, would assuredly have faced severe tests in court, legislatures and on

the streets of democratic protest." The article critiques the legislation for the

powers vested on the authorities on which we have also commented herein.

Dr Ramanathan concludes:

"The logic of the law relating to beggar would be elusive unless the route to understanding it meanders through the perception of the poor as potential criminals rendered so by their poverty; as irritants to the forces of law and urban order; as nuisances to those to whom they appeal for alms.

Xxxxxxxxxxx

PIL 24/2018 Page 157 of 196 Beggary laws have begun to demonstrate how the law may be made, continued, expanded and practised when the constituency affected by the laws are powerless-so rendered by the illegality that the law visits on them, the prejudice that poverty provokes, the distance between privilege and poverty, and the vanishing obligations of the state. Appraising the law, and the practices that have developed in its shadow, will reveal the patterns of impunity, callousness and despair that ow constitute this law. This is a law whose logic is long deceased, if such ever existed. Yet, it persists on the law books despite mounting evidence of abuse and malpractice and the incapacity that the law has demonstrated for doing any good It is, by any reckoning, a ruthless assertion of untrammeled power over classes of people who do not possess the capacity to resist, who have been rendered choiceless, and whom prejudice and callousness have consigned to the margins of human existence and beyond the bounds of citizenship."

(Emphasis by us)

308. We are informed in this writing about the documentation by a

student investigation into the administration of the Beggary Law in Delhi

conducted between 1976 and 1979, which documents the experience of one

Chottan Choudhary, a man in frail health who had lost his right arm below

the elbow and which natural disability exposed him to a very high degree of

risk of arrest under this law. (Ref: Vagrants, Beggars and Status Offenders

in Law and Poverty: Critical Essays, P 248 at pp 251 et Seq. (Upendra Baxi

(ed) 1988). He had been so arrested several times, although the students

were able to track his livelihood to a small grocery store that he ran.

309. The second instance documented by Dr. Ramanathan is that of

a Public Interest Litigation being Writ Petition no.1639/1990, which was

filed before the Bombay High Court by Manjula Sen, challenging the

constitutionality of the Bombay Prevention of Begging Act, 1959 and the

tyranny under the law that had become standard practice. Manjula Sen cited

the case of Rajguru who was 16 years of age, a bootblack, who was caught

PIL 24/2018 Page 158 of 196 outside the Churchgate station while he was sleeping during the day on

November 15, 1989. He protested that he was not a beggar but a shoe-

polisher but to no effect. Although he was a child under the Juvenile Justice

Act 1986, his age was deliberately entered as 19. Manjula Sen commented

that the interesting thing was that Rajguru was handicapped. He had only

one hand. Because of this fact he was presumed to be a beggar and arrested

under the Anti Beggary law.

310. We also find in the documentation, an assessment of two

Beggars' Homes in Delhi done by a senior civil servant of the Delhi

government following reports of inhuman conditions in the institutions. The

civil servant Gyanendra Dhar Badgaiyan wrote, in March 2001, as follows:

"Wrong people are being arrested by the anti-beggary squad. One reason for this possibly is that the squads are venal. This was established beyond doubt by an internal inquiry [conducted by Mr A. K. Sinha, District Officer, Social Welfare Department]. It confirmed that in the case of one Mr Gyan Chand Gupta, a retired clerk, the squad released him after snatching Rs.9,000 of the pension money that he was carrying. His only crime was that he was dressed shabbily. That this may not have been an isolated case was pointed out by the inquiry itself, which suggested that the squad regularly indulged in such malpractices. During interviews....., inmate after inmate complained that they were hauled up only because they could not pay the hundred rupees bribe demanded of them. Some of them at least, like the retired clerk referred to above, may not be beggars but may have just looked like one at the time of their arrest."

(Emphasis by us)

311. It appears that in the Writ Petition No. 1639/1990, which was

filed by Manjula Sen, the Bombay High Court had appointed a committee

which accompanied the police squad and followed through on the working

of the begging enactment on the street. The Committee submitted its report

PIL 24/2018 Page 159 of 196 (Report on the Procedure followed in arrest of beggars under the BPBA

1959). The conclusions of the Committee as cited in the aforesaid article

inter alia read thus:

"(1) The arrest is made of the people who are found on the street in dirty clothes and wandering. They are not actually found begging.......

(4) Large number of wrong arrests are made which is inhumane and unjustice.

........

(7) There is no criteria to decide as to who is a beggar, who is sick, physically handicapped or in need of economic help."

312. The fourth instance cited in the article (by Dr Ramanathan) is

that of a criminal complaint lodged by the New Delhi Bar Association in

July, 2006 in the Court of the Additional Metropolitan Magistrate, New

Delhi, on the stated provocation and harassment of one of its member by

lepers at the Ashram Crossing near Maharani Bagh, New Delhi. This

complaint was referred by way of a letter registered as Referral no. 324,

ACMM/ND to the High Court of Delhi by the then ACMM, New Delhi, on

3rd August, 2006. ( New Delhi Bar Association v. Commissioner of Police,

New Delhi, also referred to as Court on its Own Motion v. Commissioner of

Police, New Delhi). The complaint makes the following submission:

"submitted that on February 13, 2006, the leper in a blue lungi who used to harass and threaten our member at the Ashram Crossing again threatened (her) with dire consequences in case (she) reported the matter to the police in order to stop him from begging at the Ashram Crossing. The leper in blue lungi told our member to give him money, otherwise (she) would be kidnapped and taken to the basti of lepers where (she) would be touched by the lepers so that (she) would get affected by the disease of leprosy."

PIL 24/2018 Page 160 of 196 313. A further complaint regarding the beggars at Ashram Crossing

was made wherein, it was stated thus:

"Our member again saw the same leper who had threatened (her).... Our member was scared and mentally disturbed that the leper might try to take revenge and may harm as he had earlier threatened our member. A further reappearance of the beggars, after a temporary cessation of their activities following sustained pressure on the police to act, had "our member....again threatened and (she) apprehends danger to life as (she) has been threatened that (she) can even be murdered in case (she) report the matter to the police".

There were references in the letter of referral to the high court by the ACMM

-to some, unspecified, member of the New Delhi Bar Association being accosted and threatened by beggars;

-to reports in "some news channels including Channel 7 and CNN-IBN" on July 29, 2006 and July 30, 2006 "regarding the involvement of some doctors in a racket of cutting health limbs of human being for the purposes of begging;

-the "illegal activities" of "anti-social elements and goondas"

increasing "at the Ashram Crossing and in the nearby localities as is evident from the murder of two lady advocates" of the Delhi High Court."

314. It is noteworthy that the murder of the two lady advocates

referred in the above complaint reportedly was resolved and it was found

that it was a domestic handyman and his friends who have been implicated

for the same and there was no involvement of beggars at all. The reaction of

the authorities, however, to the above complaint was a series of raids and

apprehension of beggars in the city of Delhi and reporting of the efforts

regarding removal of beggars in the referral proceedings pending before the

High Court.

315. Dr Ramanathan's observations on the presumption of potential

criminality of the poor is a telling commentary on the prejudice of the State

PIL 24/2018 Page 161 of 196 and society against poverty. So far as the working of the anti-begging

legislations is concerned, she summed up thus:

"Beggary laws have begun to demonstrate how the law may be made, continued, expanded and practised when the constituency affected by the laws are powerless--so rendered by the illegality that the law visits on them, the prejudice that poverty provokes, the distance between privilege and poverty, and the vanishing obligations of the State."

316. Gautam Bhatia, in the above noted post dated 10th August,

2018, has referred to his experience while inspecting a court file in the

Patiala House (New Delhi District Courts), where he came across a charge

sheet where in the requirement of individual's particulars, it was listed thus

"Residence; Vagabond". This incident is cited to illustrate the incapability

of linguistics to deal with the range of issues which could arise in society in

the context of dealing with poverty, let alone addressing them in any

meaningful way. This instance manifests' the inherent arbitrariness in the

description of the conduct which has been rendered penal under the Anti-

Beggary enactment and the width of behavior, circumstances and condition

of a person which would render him culpable for penal action.

317. Several experts have commented on the fact that despite the

excesses which have resulted on account of enforcement of beggary

enactments, there has been no prosecution or punishment of those abusing

the power or exploiting the marginalized and vulnerable.

318. The above real time accounts establish beyond doubt that

criminalization of begging does not withstand constitutional scrutiny. On the

other hand, it results in extreme marginalization and violation of the rights of

PIL 24/2018 Page 162 of 196 the poorest of the poor, those who are already barely surviving on fringes of

our society.

319. It is evident that the law under examination does not require

any specific act or behavior or omission on the part of a person to acquire

attributes of criminality. Abject poverty visible in the public domain attracts

the penalty of the law. The legislation enables such detention of persons who

may not be begging but are perceived by the enforcing authority to be

beggars or begging. In order to avoid the operation of the penal provisions of

the beggary law, a poverty-stricken person is thus required to make his

poverty invisible or to obtain gainful employment or acquire a façade of

affluence as socially perceived.

320. We are reminded here of an observation in an Article in "The

Guardian" wherein it was observed:

"...A society that sees legislating inequality and homelessness into invisibility has unquestionably lost its way..."

321. The criminalization of begging is the outcome of extremely

prejudiced social constructs of presumption of criminality against the poor

and baseless stereotypes, which have developed in ignorance of the extreme

exclusion and disadvantages faced by the poor who are struggling to survive.

322. We also find that a similar test based on perceptions of conduct

considered deviant by the majority ("popular acceptance") stands rejected in

(2018) 10 SCC 1 Navtej Singh Johar, v. Union of India (para 521) when

the Supreme Court affirmed the view taken in K. S. Puttaswamy v. Union of

India in the following terms:

PIL 24/2018 Page 163 of 196

"464. Puttaswamy (K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1) rejected the "test of popular acceptance" employed by this Court in Koushal (National Legal Services Authority v. Union of India, (2014) 5 SCC 438) and affirmed that sexual orientation is a constitutionally guaranteed freedom:

"144...The guarantee of constitutional rights does not depend upon their exercise being favourably regarded by majoritarian opinion. The test of popular acceptance does not furnish a valid basis to disregard rights which are conferred with the sanctity of constitutional protection. Discrete and insular minorities face grave dangers of discrimination for the simple reason that their views, beliefs or way of life do not accord with the 'mainstream'. Yet in a democratic Constitution founded on the rule of law, their rights are as sacred as those conferred on other citizens to protect their freedoms and liberties..........

(Emphasis by us)

323. It is high time that society and legislation evolved to ensure that

no law is legislated which results in an individual being deprived of his

constitutional rights by operation of law and that justice (social, economic

and political); liberty (of thought, expression, belief, faith and worship);

equality (as a guarantee against arbitrary treatment of individuals) and

fraternity (which assures a life of dignity to every individual) are ensured to

the most marginalized of all in society; that no person has to beg for

sustenance and survival.

(XVIII) Challenge to the procedure prescribed by the law

324. In the present case, we have noted the restrictive impact of the

impugned legislation on the rights of the beggars under Article 14, 19 and 21 PIL 24/2018 Page 164 of 196 of the Constitution. Can the constitutionality of the legislation and the rules

thereunder be challenged on grounds of any procedural unreasonableness?

325. In the judgment of the Constitution Bench reported at AIR 1950

SC 211 N. B. Khare v. State of Delhi, the Supreme Court also emphasized

reasonableness of the procedural part of the law by which exercise of a

fundamental right may be restricted, in the following terms:

"While the reasonableness of the restrictions has to be considered with regard to the exercise of the right, it does not necessarily exclude from the consideration of the Court the question of reasonableness of the procedural part of the law. It is obvious that if the law prescribes five years externment or ten years externment, the question whether such period of externment is reasonable, being the substantive part, is necessarily for the consideration of the court under clause (5). Similarly, if the law provides the procedure under which the exercise of the right may be restricted, the same is also for the consideration of the Court, as it has to determine if the exercise of the right has been reasonably restricted."

(Emphasis by us)

326. On the aspect of permissibility of a judicial review of the

procedural aspects of an impugned restrictive law, in the judgment of the

Supreme Court reported at AIR 1952 SC 196 State of Madras v. V. G. Row,

also the Supreme Court has observed as follows:

"This Court had occasion in Dr. Khare's case (1950) S.C.R. 519 to define the scope of the judicial review under clause (5) of Article 19 where the phrase "imposing reasonable restriction on the exercise of the right" also occurs and four out of the five Judges participating in the decision expressed the view (the other Judge leaving the question open) that both the substantive and the procedural aspects of the impugned restrictive law should be examined from the point of view of reasonableness; that is to say, the Court should consider not only factors such as the duration and the extent of the restrictions, but also the circumstances under which and the manner in which their imposition has been authorised. It is important in this context to bear in mind that the test of reasonableness, where ever prescribed, should be applied to each, individual statute impugned and no abstract standard,

PIL 24/2018 Page 165 of 196 or general pattern of reasonableness can be laid down as applicable to all cases."

(Emphasis by us)

In V.G. Row, the Supreme Court has clearly laid down the

factors to be examined while examining a challenge to the constitutionality

of a statute.

327. So far as any law which has the effect of interfering with the

"personal liberty" of a person, in (1978) 1 SCC 248 Maneka Gandhi v.

Union of India, it stands declared that such law has to satisfy the following

triple test:

(i) it must prescribe a procedure;

(ii) the procedure necessarily withstands a test of one or more of

the fundamental rights conferred under Article 19 which may be applicable in a given situation; and

(iii) it must be liable to be tested with reference to Article 14.

328. We also find that the tests propounded for the Article 14

examination prevail the Article 21 consideration as well. Thus, the law and

procedure which authorizes interference with personal liberty must also be

just and fair and not arbitrary, fanciful or oppressive. If the procedure

prescribed does not satisfy the requirement of Article 14, it would not be a

procedure at all within the meaning of Article 21.

329. Having held that Section 2(a) of the Jammu & Kashmir

Prevention of Beggary Act creates an offence which is vague, therefore, void

and unconstitutional under Article 19(1)(a) and not saved by Article 19(2) as

well as violative of the rights guaranteed under Article 21, it becomes

necessary to also consider as to whether procedure prescribed under the

PIL 24/2018 Page 166 of 196 Jammu & Kashmir Prevention of Beggary Act, 1960, and rules framed

thereunder suffers from any procedural unreasonableness.

330. Section 3 unequivocally declares that if any person is found

begging within the area to which the Act applies, he "shall" be guilty of an

offence under the Act. Section 4 empowers any police officer or other

person authorized in this behalf by the District Magistrate to arrest "without

a warrant" any person who is found begging.

331. Sub-section 2 of Section 4 does requires that Section 61 of the

Code of Criminal Procedure shall apply to every arrest under this section

and that the officer-in-charge of the police station shall cause an arrested

person to be kept in the prescribed manner until he can be brought before the

court. Undoubtedly drastic, completely unregulated and absolute unguided

power is vested in the police officer or the authorized person to arrest a

person found begging or even subjectively perceived by such person to be

begging.

332. Once the person is produced before the Court, Section 5 of the

statute mandates that the court shall make a "summary inquiry" as regards

the allegation that he was found begging. The court is empowered under

sub-section (2) of Section 5 to adjourn the inquiry if it could not be

completed, from time to time, and order that the person to be remanded to

such place and custody as may be convenient. Upon making the above

inquiry, if the "court is satisfied that such person was found begging", the

court is mandatorily required to make a declaration that the person is a

beggar; also determine, after making an inquiry, whether the person was

PIL 24/2018 Page 167 of 196 born in the State of Jammu & Kashmir and ordinarily resides therein

including the findings and relations thereto in its declaration.

333. Thereafter, under Section 5(5), the court is required to order the

person who has been declared as a beggar under sub-section (4) to be

detained in a Sick Home, Children's Home or a Beggar's Home, as the

case may be, for a period "not less than one year" and "not more than three

years" in the case of first offence.

334. In the event of a person being found begging for a second time,

the court is mandatorily required to detain him in a Sick Home/ Beggar's

Home/ Children's Home, as the case may be, for "not less than three years"

and "not more than seven years". A proviso has been provided in sub-

section 2 of Section 6 to the effect that if the court, at any time, after passing

of the sentence, on its own motion or on an application is satisfied that the

person sentenced under Section 6(2) or Section 5(2) is not likely to beg

again, it may release the said person after "due admonition on a bond for

his abstaining from begging and being of good behavior, being executed

with or without sureties, as the Court may require".

335. Sections 5 and 6 make no reference to the circumstances of the

beggar which may have caused him to take to begging. It makes no

reference to the age or character of the beggar or the circumstances and

conditions in which such beggar was living. No reference is made to

examination of the reasons for which the person resorted to begging.

336. Section 8 enables the Government to direct release of a person

who has been convicted under Section 5 or 6 and committed to one of the

PIL 24/2018 Page 168 of 196 detention homes if he "has been cured of disease or is in a fit state of health

to earn his living or is otherwise fit to be discharged before the expiry of the

period for which he has been committed". This provision, however, is

inconsequential inasmuch as a person who has been begging on account of

financial penury would not have developed the capacity to secure his living

by means other than begging while under detention.

337. It is noteworthy that the provisions of the Bombay Prevention

of Begging Act, 1959, and the Delhi Prevention of Begging Rules, 1960,

mandate that in passing any order under the Act, including the order under

Section 5(4) and 5(5), the court is required to have regard to all the

circumstances mentioned therein including the consideration of the age and

character of the beggar which encompasses all antecedents of the person. It

has been held that the court was required to consider the circumstances and

conditions in which the beggar was living; a report from the Probation

Officer was required to be called and a wide latitude stands given to the

courts in passing orders under the statute. Section 5(7) of the Bombay Act

requires communication of the report of the Probationary Officer to the

beggar concerned who has to be given an opportunity of producing evidence

relevant to the matter stated in the report.

Unfortunately, no such requirement is prescribed under the

provisions of the Jammu & Kashmir Prevention of Beggary Act, 1960 or the

Rules framed thereunder. Rule 5 of the Jammu & Kashmir Prevention of

Beggary Rules, 1964, simply prescribes that so far as the inquiry under sub-

section (1) of Section 5 is concerned, the procedure prescribed in the Code

PIL 24/2018 Page 169 of 196 of Criminal Procedure, for the trial of summons cases, and for recording

evidence therein, shall be followed under Rule 5(1).

338. The procedure which is prescribed under Section 5 of the Act

under challenge would show that even in order to undertake the summary

inquiry, the person is mandatorily required to be detained, first arrested

under Section 4; then, while undergoing the summary inquiry, "remanded to

such place and custody as may be convenient" under Section 5(2).

339. Implicit in this requirement is that, if, on making the inquiry as

referred to under Section 5(1) of the Act, the court is not satisfied that the

person was found begging, it shall order such person be released forthwith.

Therefore, as per the scheme of the enactment, in order to ascertain the

innocence of a person, the law mandates his arrest first, and, thereafter his

remand till completion of the inquiry, in order to enable determination of his

innocence. Thus, innocent persons are required to be deprived of their liberty

without following any process of law. Clearly there is a serious infraction of

the rights of the persons detained guaranteed under Article 21 of the

Constitution of India.

340. In the aforenoticed report submitted by the United Nations

Special Rapporteur on extreme poverty and human rights, a critical

consequence of poverty is reported as follows:

"12. A significant obstacle in breaking this cycle of penalizationand poverty is the inability of persons living in poverty to access legal assistance, as they are unable to afford private legal representation and legal aid is often unavailable or inadequate. Without access to competent, comprehensive legal assistance, the poorest and most excluded are further disadvantaged in their dealings with authorities not only when

PIL 24/2018 Page 170 of 196 they are facing criminal charges, but also with respect to administrative procedures such as child protection cases, benefit fraud matters or eviction and immigration proceedings.

13. When persons living in poverty do not have access to legal representation or advice, particularly in circumstances where they are unfamiliar with complex legal language, they are more likely to receive and accept unfair or unequal treatment. There is a higher likelihood that they will be detrimentally affected by corruption or asked to pay bribes, will be detained for longer periods of time and, if facing trial, will be convicted. Even when legal assistance is available, discrimination and linguistic barriers are powerful obstacles in the way of those seeking access to justice and redress."

(Emphasis by us)

341. Beggars don't have a voice in society. They are definitely least

equipped to have a voice in any informal inquiry conducted against them.

We have no manner of doubt that they cannot effectively represent

themselves in the summary inquiry contemplated under the Act and the

Rules. The lack of effective legal representation is yet another access barrier

which works against them.

342. An extremely detailed and in-depth analysis of the barriers

faced by poor people in accessing justice is to be found in Law, Poverty and

Legal Aid: Access to Criminal Justice by Dr. S. Muralidhar.

343. The presumption in the minds of the authorities and the

equation of a state of poverty with criminality as well as the extreme

inequality of power in activating the law and seeking judicial remedies so far

as beggars is concerned, is writ large on the operationalisation of the anti-

begging enactments. The legislation as well as its working is entrenched in a

deep prejudice without any consideration of the rights of the people who are

impacted thereby. The enactment and its working highlights the

unsurmountable gap between the privileged and the extreme poor.

PIL 24/2018 Page 171 of 196

344. The constitutionality of Section 6(2) which provides for a

mandatory minimum sentence of detention of three years which can extend

up to seven years has been assailed on the ground that this provision violates

Article 20 of the Constitution of India.

Article 20 of the Constitution provides thus:

"20. Protection in respect of conviction for offences.--(1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.

(2) No person shall be prosecuted and punished for the same offence more than once.

(3) No person accused of any offence shall be compelled to be a witness against himself."

345. We also find substance in the submission made by Mr Suhail

Rashid Bhat on the constitutionality of Section 6(2) for the reason that

though the Section purports to provide for repeat conviction, however, the

same tantamounts to actually penalization of a person for second time for

what is really a continuation of his previous act. Section 5 enables arresting

anybody who looks poor and appears to be soliciting alms. There is nothing

laced before us which shows that the person who is so detained is either

empowered or economically uplifted when he is released even after his

detention. We are unable to fathom as to how the appearance of a beggar

would change merely because of his detention in a detention centre.

Therefore, even after his release after undergoing the detention, the beggar

would continue to look the same, inviting action under Section 6 again and

again premised on the same presumptions and conjectures. The detention as

prescribed under Section 6 results in the worst kind of deprivation of

constitutional rights that a poor person could be subjected to.

PIL 24/2018 Page 172 of 196

346. In Ram Lakhan v. State, it has been pointed out that if a person

is begging out of share necessity, what would be the purpose of his detention

in a sick home/ children's home/ beggar's home without any effort to

mitigate such person's need and uplift him economically even upon a second

conviction as under Section 6 of the present statute? These very questions

can be asked with regard to the detention of a beggar under the Jammu &

Kashmir Prevention of Beggary Act, 1960. What would be the utility or

efficacy of releasing such person under the proviso to Section 6(2) after an

admonition or after procuring a bond for his abstaining from begging and

being of good behavior?

347. We find that Section 5(5) prescribes a minimum sentence of not

less than one year to a person who is declared to be a beggar by the court.

Section 6(2) prescribes a minimum sentence of three years for a person

convicted for a second time. We find that while prescribing punishments

under the Ranbir Penal Code, even for serious offences such as voluntarily

causing hurt (Section 323); voluntarily causing hurt by dangerous weapons

(Section 324); grievous hurt (Section 325); voluntarily causing grievous hurt

to extort property or to constrain to an illegal act (Section 329); causing

grievous hurt to extort confession or to compel restoration of property

(Section 331) amongst others, no minimum sentences have been prescribed

amongst other. The unfairness of the prescription of sentence in Sections

5(5) and 6(2) is glaring on the face of these comparisons. The prescription of

mandatory sentence completely takes away the judicial discretion in

imposing the sentence.

PIL 24/2018 Page 173 of 196

348. The decision of the Supreme Court in Sunil Batra was

followed by yet another Constitution Bench judgment reported at (1983) 2

SCC 277 : Mithu v. State of Punjab, wherein Section 303 of IPC laying

down mandatory sentence of death to be imposed on life convicts who

commit murder in jail was challenged on the ground that it was arbitrary and

oppressive so as to be violative of the fundamental rights conferred by

Article 21 of the Constitution of India. The court held that Section 303

created a particular class of persons who are deprived of the opportunity

under Section 235(2) of the Cr.P.C. to show cause as to why they should not

be sentenced to death and it also relieved the court of its obligation under

Section 354(3) of the Code to state special reasons for imposing the sentence

of death. In para-18, the Supreme Court held that the deprivation of these

rights and safeguards which were bound to result in injustice is "harsh,

arbitrary and unjust". In para 19, the Supreme Court further held that

prescription of the mandatory sentence of death for the second of such

offences for the reason that the offender was under the sentence of life

imprisonment for the first of such offences, is arbitrary and beyond the

bounds of all reason.

349. The court posed the question which the court would be required

to frame if Section 235(2) of Cr.P.C. were applicable to the cases observed

as follows:

"19.......Assuming that Section 235(2) of the Criminal Procedure Code were applicable to the case and the court was under an obligation to hear the accused on the question of sentence, it would have to put some such question to the accused:

"You were sentenced to life imprisonment for the offence of forgery. You have committed a murder

PIL 24/2018 Page 174 of 196 while you were under that sentence of life imprisonment. Why should you not be sentenced to death?"

The question carries its own refutation. It highlights how arbitrary and irrational it is to provide for a mandatory sentence of death in such circumstances.

23. On a consideration of the various circumstances which we have mentioned in this judgment, we are of the opinion that Section 303 of the Penal Code violates the guarantee of equality contained in Article 14 as also the right conferred by Article 21 of the Constitution that no person shall be deprived of his life or personal liberty except according to procedure established by law."

(Emphasis by us)

350. The observations of Chinnappa Reddy, J., in the concurring

judgment striking down the law in Mithu v. State support the above

observations made by this Court on the challenge to the procedure

prescribed under Section 5 of the Act and the mandatory sentence under

Section 6 of the Act for a repeat offence in the present case and deserve to

be extracted in extenso. These observations of the Learned Judge read thus:

"25. Judged in the light shed by Maneka Gandhi [(1978) 1 SCC 248] and Bachan Singh [(1980) 2 SCC 684], it is impossible to uphold Section 303 as valid. Section 303 excludes judicial discretion. The scales of justice are removed from the hands of the Judge so soon as he pronounces the accused guilty of the offence. So final, so irrevocable and so irrestitutable is the sentence of death that no law which provides for it without involvement of the judicial mind can be said to be fair, just and reasonable. Such a law must necessarily be stigmatised as arbitrary and oppressive. Section 303 is such a law and it must go the way of all bad laws. I agree with my Lord Chief Justice that Section 303, Indian Penal Code, must be struck down as unconstitutional."

(Emphasis by us)

351. We may well briefly examine what is the outcome of the

detention first under Section 5 and then for a repeat misdemeanor under

Section 6 of the Jammu & Kashmir Prevention of Beggary Act, 1960. The

PIL 24/2018 Page 175 of 196 person detained is deprived of his right to life. His liberty and freedom of

expression is absolutely curtailed. He is removed from the company of his

family and near and dear ones and compelled to exist under the strict

regimentation of the authorities in the detention home.

352. The legislature while enacting the Jammu & Kashmir

Prevention of Beggary Act, 1960, has completely ignored the fact that there

may be persons dependent who was detained for begging. As a result of the

mandatory detention under the legislation, all rights of the persons who are

dependent on him would also result in extreme deprivation.

353. We may also advert to an unusual provision contained in

Section 9 of the Bombay Prevention of Begging Act, 1959, which reads as

follows:

"S.9 Court may order detention of persons wholly dependent out beggar-(1) When the Court has ordered the detention of a person in a Certified Institution under section 5 or 6 it may after making such inquiry as it thinks fit, order any other person who is wholly dependent on such person to be detained in a Certified Institution for a like period:

Provided that before such order is made such dependent person shall be given an opportunity of showing cause why it should not be made.

(2) Where the dependent person is a child the Court shall forward him to a Juvenile Court which shall deal with him under section 40 of the Bombay Children Act, 1948 (Bom LXXt of (948), as if the child were a person described in clause (a) of that section:

Provided that where the dependent person in the beggar's child, being a child who is under the age of five years, and the beggar is an able bodies mother, not being a contagious leper or a lunatic, the child may be ordered to be detained in a Certified Institution without being separated from the mother as regards the place of detention, until it attains the age of five years-and thereafter dealt with as provided in this sub-section. (3) For the purpose of this section the court may if necessary cause the dependent person to be arrested and brought before

PIL 24/2018 Page 176 of 196 itself and caused to be examined by a medical officer. The provisions of section 61 of the Code of Criminal Procedure, 1898 (V of 1898) shall apply to every arrest under this sub-

section, and the officer in charge of the police station or section shall cause the arrested person to be kept in the prescribed manner until he can be brought before a court.

(Emphasis by us)

354. While enacting the Bombay Prevention of Begging Act, 1959,

the legislature had anticipated the fact that there may be persons who are

wholly dependent on the person who was detained because he was found

begging. It has enacted Section 9 mandating that even the person who is

wholly dependent on the person detained for begging has to be detained in a

Certified Institution for a like period.

We are not commenting hereby upon the reasonableness,

fairness or constitutionality of Section 9 of the Bombay Prevention of

Begging Act. This provision has been noticed only to point out that detention

of a beggar impacts persons dependent on him, who would suffer on account

thereof as well.

We may also note that this Section 9 of the Bombay Act, as was

applicable to Delhi, has been declared unconstitutional by the Delhi High

Court in the judgment dated 8th August, 2018 in WP(C) No.10498/2009

entitled Harsh Mander v. Union of India and others.

355. No consideration of the rights or impact on dependents of a

detained beggar is to be found in the Jammu & Kashmir Prevention of

Beggary Act, 1960. As a result of the detention of the beggar all rights of the

persons who are dependent on the beggar would also face extreme

deprivation.

PIL 24/2018 Page 177 of 196

356. So far as the challenge to the rules framed under the legislation

is concerned, in AIR 2017 SC 4609 Shayara Bano v. Union of India (at

page 4830 in para 282), the Supreme Court relied upon the judgment

reported in (2016) 7 SCC 703 (AIR 2016 SC 2336) Cellular Operators

Association of India v. Telecom Regulatory Authority of India and held

thus:

"282. To complete the picture, it is important to note that subordinate legislation can be struck down on the ground that it is arbitrary and, therefore, violative of Article 14 of the Constitution. In Cellular Operators Association of India v. Telecom Regulatory Authority of India, (2016) 7 SCC 703, this Court referred to earlier precedents, and held:

"Violation of fundamental rights

42. We have already seen that one of the tests for challenging the constitutionality of subordinate legislation is that subordinate legislation should not be manifestly arbitrary. Also, it is settled law that subordinate legislation can be challenged on any of the grounds available for challenge against plenary legislation. (See Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India [(1985) 1 SCC 641: 1985 SCC (Tax) 121], SCC at p. 689, para 75 : (AIR 1986 SC 515, at p.542, para 73)).

43. The test of "manifest arbitrariness" is well explained in two judgments of this Court. In Khoday Distilleries Ltd. v. State of Karnataka [(1996) 10 SCC 304], this Court held: (SCC p. 314, para 13) : (AIR 1996 SC 911 at p.915).

"13. It is next submitted before us that the amended Rules are arbitrary, unreasonable and cause undue hardship and, therefore, violate Article 14 of the Constitution. Although the protection of Article 19(1)(g) may not be available to the appellants, the Rules must, undoubtedly, satisfy the test of Article 14, which is a guarantee against arbitrary action. However, one must bear in mind that what is being challenged here under Article 14 is not executive action but delegated legislation. The tests of arbitrary action which apply to executive actions do not necessarily apply to delegated legislation. In order that delegated legislation can be struck down, such legislation must be manifestly arbitrary; a law

PIL 24/2018 Page 178 of 196 which could not be reasonably expected to emanate from an authority delegated with the law-making power. In Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India [(1985) 1 SCC 641 : 1985 SCC (Tax) 121 : (AIR 1986 SC

515)], this Court said that a piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent legislature. A subordinate legislation may be questioned under Article 14 on the ground that it is unreasonable; 'unreasonable not in the sense of not being reasonable, but in the sense that it is manifestly arbitrary'. Drawing a comparison between the law in England and in India, the Court further observed that in England the Judges would say, 'Parliament never intended the authority to make such Rules; they are unreasonable and ultra vires'. In India, arbitrariness is not a separate ground since it will come within the embargo of Article 14 of the Constitution. But subordinate legislation must be so arbitrary that it could not be said to be in conformity with the statute or that it offends Article 14 of the Constitution."

44. Also, in Sharma Transport v. State of A.P. [(2002) 2 SCC 188], this Court held:

(SCC pp. 203-04, para 25) : (AIR 2002 SC 322 at pp.330-331, para 23).

"25. ... The tests of arbitrary action applicable to executive action do not necessarily apply to delegated legislation. In order to strike down a delegated legislation as arbitrary it has to be established that there is manifest arbitrariness. In order to be described as arbitrary, it must be shown that it was not reasonable and manifestly arbitrary. The expression "arbitrarily" means: in an unreasonable manner, as fixed or done capriciously or at pleasure, without adequate determining principle, not founded in the nature of things, non-rational, not done or acting according to reason or judgment, depending on the will alone." (at pages 736-737) : (at pages 2356-2357 of AIR)."

(Emphasis by us)

357. In para 282 of Shayara Bano the Supreme Court summed up

the applicable principles thus:

"It will be noticed that a Constitution Bench of this Court in Indian Express Newspapers v. Union of India, (1985) 1 SCC 641, stated that it was settled law that subordinate legislation can be challenged on any of the grounds available for challenge against plenary legislation. This being the case, there is no rational distinction between the two types of

PIL 24/2018 Page 179 of 196 legislation when it comes to this ground of challenge under Article 14."

(Emphasis by us)

358. We have held above the procedure provided in the Jammu &

Kashmir Prevention of Beggary Act, 1960 and Rules thereunder thus treats a

beggar with utmost indignity, impact his personal autonomy, liberty and

privacy, impinging on matters most personal to him or her, without giving

any option in these matters. We have held the law therefore, adversely

impact the constitutionally ensured as right to life (Article 21) of the

beggars.

359. We further find that for impacting the valuable rights as well as

the guarantees under Articles 14 & 19, the procedure prescribed by the law

impugned is a summary truncated procedure which does not ensure a level

playing field to the person affected. Even to establish his innocence, the

detenu is detained in the police station. Even if the beggar could procure

effective legal representation, he is deprived of the opportunity to do so by

his confinement.

360. Therefore, even if it could be held that the restrictions imposed

by the substantive law were Constitutional and had to be sustained, we have

no hesitation in holding that the procedure prescribed for imposing these

restrictions is arbitrary and unreasonable and so liable to be struck down.

361. We also have no manner of doubt that Sections 3, 4, 5, 6, 7 and

8 of the Jammu & Kashmir Prevention of Beggary Act, 1960, and Rules 3,

4, 5, 6, 8 and 9 of the Jammu & Kashmir Prevention of Begging Rules,

1964, making begging an offence; prescribing a mandatory detention on the

PIL 24/2018 Page 180 of 196 mere perception of the law enforcer (Section 4); mandatory incarceration

even to establish innocence; mandatory sentence upon a second conviction

(Section 6) and further conviction on conclusion of a summary inquiry

(Section 5), are arbitrary, beyond the bounds of reason. The provisions

which take away the complete judicial discretion, cannot be considered fair,

just and reasonable. For all these reasons, these statutory provisions violate

the rights guaranteed to a person under Article 14 of the Constitution of

India and are so held to be unconstitutional.

362. In view of the above discussion, we also hold that the

provisions of Rules 3 4, 5, 6, 7, 8 and 9 of Jammu & Kashmir Prevention of

Beggary Rules, 1964, are unreasonable and so manifestly arbitrary that they

offend Article 14 of the Constitution of India.

(XIX) Defence of necessity to explain an act of begging

363. Another interesting aspect of the matter merits consideration.

We have noticed herein as to the reasons why people are compelled to beg,

the main reason being their extreme poverty and inability to provide or

sustain their own and dependents minimal needs and essentials.

364. So far as their defence against criminal implication and

imposition of penalty, an interesting discussion is found on the probable

defence of necessity which could be available to them in the Single Bench

judgment of the Delhi High Court reported at (2007) 137 DLT 173 Ram

Lakhan v. State. Reference has been made to jurisprudence from the

Supreme Court of Canada and England which deserves to be usefully

considered herein.

PIL 24/2018 Page 181 of 196

365. In Ram Lakhan, reference stands made to the judgment of the

Supreme Court of Canada reported at [1955] 2 SCR 973 (at page 1012)

Hibbert v. The Queen, Lamer, G, observed as follows:

"the defences of self-defence, necessity and duress all arise under circumstances where a person is subject to an external danger, and commits an act that would otherwise be criminal as a way of avoiding the harm the danger presents. In the case of self-defence and duress, it is the intentional threats of another person that are the source of the danger, while in the case of necessity the danger is due to causes, such as forces of nature, human conduct and other than intentional threats of bodily harm, etc. Although this distinction may have important practical consequences, it is hard to see how it could act as the source of significant juristic differences between the three defences."

(Emphasis by us)

366. Another judgment referred stands reported at [1987] AC 417 (at

page 429), (1987) 2 WLR 568; (1086) 4 KHL 4, (1987) 85 Cr App R 32 R

vs. Howe, Lord Hailsham made the following similar observations:

"there is, of course, an obvious distinction between duress and necessity as potential defences; duress arises from the wrongful threats or violence of another human being and necessity arises from any other objective dangers threatening the accused. This, however, is, in my view, a distinction without a relevant difference, since on this view duress is only that species of the genus of necessity which is caused by wrongful threats. I cannot see that there is any way in which a person of ordinary fortitude can be excused from the one type of pressure on his will rather than the other."

(Emphasis by us)

367. We have discussed above four reasons why a person may solicit

alms. So far as the beggar falling in the third category i.e. the beggar who is

being exploited and compelled to beg by a begging racket is concerned, he

would be begging under the compulsion of fear of harm from those

exploiting him. Such beggar would have available the defence of 'duress'.

PIL 24/2018 Page 182 of 196 On the other hand in a criminal prosecution, under the Anti begging

legislation, a beggar who begs on account of homelessness, poverty and

extreme need, would have available the defence of 'necessity' to him.

368. In Ram Lakhan, it is noted that in both kinds of begging and

defences, there is no element of volition of the beggar in the act of begging.

The person lacks legitimate alternatives and hence an element of

involuntariness is attached to his conduct.

369. Such conduct has been considered in the majority opinion of

the Supreme Court of Canada in the judgment reported at [1984] 2 SCR 232

Perka v. The Queen, and it is observed that "given that the accused had to

act, could he nevertheless realistically have acted to avoid the peril or

present the harm, without breaking the law? Was there a legal way out? I

think this is what Bracton means when he lists "necessity" as a defence,

providing the wrongful act was not "avoidable". The question to be asked

is whether the agent had any real choice: could he have done otherwise?

If there is a reasonable legal alternative to disobeying the law, then the

decision to disobey becomes a voluntary one, impelled by some

consideration beyond the dictates of "necessity" and human instincts."

(Emphasis by us)

370. So far as the beggar is concerned, even to establish such

defence in his prosecution, he has to be detained. We have noted above the

absolute barrier faced by the poverty stricken detenu in establishing his case

in the summary inquiry. Certainly to establish such defences would be a

challenge for him.

PIL 24/2018 Page 183 of 196 (XX) Legality of order dated 23rd May, 2018, passed by the District Magistrate, Srinagar.

371. On 23rd of May, 2018, the following order came to be passed by

District Magistrate, Srinagar:

"Whereas, Srinagar being the summer capital of the State of Jammu & Kashmir holds great importance in the socio- economic landscape of the State of Jammu & Kashmir. Being the capital city of the state with a vast population, it is contingent upon the administration to take all measures necessary to make the district more citizen friendly & to prevent public nuisance at all costs. Further being a prime tourist destination, it is home to tourists both domestic and foreign.

Whereas, it has been observed that off late there is a proliferation of beggars on the streets of Srinagar which creates massive nuisance for the general public.

Whereas, begging at any public place or places of worship whether or not under any pretence is repugnant to the Jammu & Kashmir Prevention of Beggary Act, 1960.

Whereas, being an offence under that Act, it is imperative that strict necessary action under law be initiated against the offenders.

Now therefore, I, Dr. Syed Abid Rasheed Shah, District Magistrate Srinagar do hereby order, by the powers vested in me under the Jammu & Kashmir Prevention of Beggary Act, 1960 with immediate effect that any person found:-

soliciting alms in a public place, or in or about a mosque, temple or other place of public worship, whether or not under any pretence;

entering on any private premises for the purpose of soliciting alms;

exposing or exhibiting with the object of obtaining or extorting alms, any sore, wound, injury, deformity or disease whether of human being or an animal;

having no visible means of subsistence and wandering about or remaining in any public place or in a temple, mosque or other place of public worship in such condition or manner as makes it like that the person doing so exists by soliciting alms;

allowing himself to be used as an exhibit for the purpose of soliciting alms, does not include soliciting money or fee or gift for a purpose authorized by law or authorized in the prescribed manner by the District Magistrate,

PIL 24/2018 Page 184 of 196 shall be immediately arrested under Section 4 of the Jammu & Kashmir Prevention of Beggary Act, 1960 read with Section 61 of the Code of Criminal Procedure, Svt 1989.

Senior Superintendent of Police, Srinagar and Senior Superintendent of Police, Budgam shall implement this order in letter & spirit and report the number of such arrests on a daily basis."

(Emphasis by us)

372. As stated in the order, it was intended as a measure to "make

Srinagar District more citizen friendly and to prevent public nuisance at all

costs". The order observes that there was proliferation of beggars on the

streets of Srinagar. The District Magistrate has presumed that such

proliferation ipso facto "creates massive nuisance for the general public".

This order extracts the definition of begging under Section 2(a) of the

Jammu & Kashmir Prevention of Beggary Act and in exercise of the powers

vested under Section 4 thereof, the District Magistrate has notified the public

that any person found indulging in the stated acts shall be immediately

arrested.

373. 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. We have also found

unconstitutional the provisions of Jammu & Kashmir Prevention of Beggary

Act, 1960 which incorporate such prohibitions. The order dated 23rd May,

2018 which is based on prejudice that beggars are per se nuisance is,

therefore, unsustainable for the detailed reasons which we have recorded

PIL 24/2018 Page 185 of 196 above with regard to the constitutionality legislation and has to be struck

down and quashed.

(XXI) Impact of notification dated 5th August, 2019 (Re-organization Act)

374. Post reservation of this judgment, the Government of India has

proposed to reorganize the State of Jammu & Kashmir in terms of the

Jammu & Kashmir Re-organization Act, 2019. This enactment was

introduced before the Rajya Sabha on 5th August, 2019 and passed on the

same date. Thereafter, on 6th August, 2019, the Lok Sabha granted its assent

to this law. The enactment received the assent of the President on 6th August,

2019. As per Sections 3 and 4 of the Act, on and from the appointed day, the

existing State of Jammu & Kashmir would stand re-organized into two

Union Territories being the Union Territory of Jammu & Kashmir and

Union Territory of Ladakh.

375. The Government of India has issued a notification being SO

No. 2889(E) declaring that the appointed day has been fixed as 31 st October,

2019.

376. In so far as the extant laws applicable to the State of Jammu &

Kashmir are concerned, in terms of Section 95(2) of the Re-organization

Act, the same shall be made applicable in the manner as appears in the

relevant table in the First Schedule.

377. So far as the Jammu and Kashmir Prevention of Beggary Act,

1960, is concerned, the same is mentioned as Entry No.103 in table IV of the

5th Schedule which is concerned with State Acts including Governors Act

PIL 24/2018 Page 186 of 196 that shall remain in force in the Union Territory of Jammu & Kashmir and

Union Territory of Ladakh. Therefore, the enactment, the constitutionality

where of is being subjected to scrutiny by us, has been made applicable to

the Union Territories declared by the Government in terms of the Jammu &

Kashmir Re-organization Act 2019.

378. As such, the present challenge survives despite the

reorganization of the State into Union Territories.

(XXII) Compelling another to beg is not penal

379. The respondents have also adverted to the objects of the law as

intended to underline acts of begging "some organized gangs are exploiting

children" and forcing them to go for begging; that children are kidnapped

and forced to beg and a huge amount of money is collected. In this regard,

we may advert to the scheme of the Jammu & Kashmir Prevention of

Beggary Act 1960. The Act does not criminalize kidnapping or exploitation

of any children or person and their being compelled to beg. Instead, under

clause (v) of sub-section (a) of Section 2 of the Act "allowing himself to be

used as an exhibit for the purpose of soliciting alms" has been made an

offence. Therefore, the victim who has been compelled to beg has been

made an offender under the statutory scheme.

380. Similar legislations in other States in India penalize not only

begging, but also compelling others to beg. In this regard, we may usefully

refer to the provisions of Section 11 of the Bombay Prevention of Begging

Act, 1959, which reads thus:

PIL 24/2018 Page 187 of 196

"S.11 Penalty for employing or causing persons to beg or using them for purposes of begging: Whoever employs or causes any person to solicit or receive alms, or whoever having the custody, charge or care of a child, continues at or encourages the employment or the causing of a child to splice, or receive alms or whoever poses another person as an exhibit for the purpose of begging shall on conviction be punished with imprisonment for a term which may extend to three years but which shall not be less than one year."

381. By this provision, anybody who employs any person to solicit

or receive alms is liable on conviction to be punished with imprisonment for

a term which may extend to three years but it shall not be less than one year.

Thus, a minimum sentence of imprisonment stands prescribed for employing

or causing any person to beg.

382. The Jammu & Kashmir Prevention of Beggary Act, thus does

not penalize the person who is compelling or exploiting another person for

begging. It thus draws no distinction between voluntary and involuntary

begging. The legislation does not penalize the person who compels another

to beg or is running a racket or controlling a syndicate of begging.

383. Criminal law is founded on "Actus Reus Non Facit Reum Nisi

Mens Sit Rea". However, the impugned legislation also does not require any

element of mensrea on the part of person implicated to invite penal liability

or consequences.

(XXIII) A word for the petitioer

384. Before parting with this case, we must acknowledge the

contribution made by the petitioner, Mr Suhail Rashid Bhat, is a fresh law

graduate who has been enrolled as an advocate only on 17.08.2017. We are

impressed with his engagement with such an important social cause as raised

PIL 24/2018 Page 188 of 196 by him in the writ petition. He has displayed extreme sensitivity to the cause

of the marginalized and impressed us with his deep analysis of the

Constitutional and legal issues which have arisen for consideration. We

place on record our appreciation for the sensitivity of the petitioner, his

application to law, comprehension of the issues examined by us and his

ability to apply judicial precedents to the propositions raised.

(XXIV) Conclusions

385. In view of the above, we hold as under:

(I) Poverty is human rights issue. The poor are entitled to a

meaningful right of life which includes health, freedom, food,

clothing, shelter, educational facilities, just and humane

conditions of work and maternity benefits, privacy, dignity and

liberty. It is primarily on account of deprivation of the

essentialities of life that poor people are compelled to resort to

begging to make out their sustenance.

(II) Criminalization of begging is the outcome of extremely

prejudiced social constructs of presumption of criminality

against the poor and baseless stereotypes, in ignorance of the

extreme exclusion and disadvantages faced by the poor who are

struggling to survive. The criminalization of begging which

makes poverty an offence, is intended to remove poor people

from public spaces, deprive them of the Constitutional

guarantees of inclusiveness and pluralism and results in further

deprivation to them.

PIL 24/2018 Page 189 of 196 (III) Unlike other legislations which clothe and empower authorities

with drastic powers, the Jammu & Kashmir Prevention of

Beggary Act, 1960, does not contain a "no faith" clause which

protects officials against civil and criminal actions in respect of

anything intended to be done or done pursuant to the provisions

of law, suggesting legislative arrogance in that it does not

expect any complaint against the authorities working this law in

view of the powerless status of the targeted population.

(IV) Section 3 of the enactment which makes begging, as defined

under Section 2(a) of the Jammu & Kashmir Prevention of

Beggary Act, 1960, an offence does not require any element of

mens rea.

(V) Begging involves peaceful communication with strangers,

verbal or non-verbal, whereby a beggar conveys a request for

assistance. Such communicative activity is essentially part of

the valuable right of freedom of speech and expression

guaranteed to all under Article 19(1)(a) of the Constitution of

India.

(VI) The definition of begging under Section 2(a) of the enactment

criminalizes people for what they are rather than what they do.

The criminal sanction under Section 3 of the Act, 1960, on the

communicative activity is content based and premised on

presumption of criminality of the poor under Section 2(a)

thereof. It results in banning of permissible activity in

PIL 24/2018 Page 190 of 196 traditionally public forums and, therefore, essentially is subject

to strict scrutiny. The definition of the offence is vague,

overbroad and not narrowly tailored so as to achieve the object

of the Act.

(VII) The irredeemably broad and vague definition confers

completely unchecked and untrammeled powers on the law

enforcing authorities to apply the drastic powers to detain

people. The definition of begging has the chilling effect on free

speech and expression of the beggars.

(VIII) The prohibition of communicative activity by beggars in public

spaces is violative of their rights guaranteed under Article

19(1)(d) of the Constitution and not sustainable for this reason

as well.

(IX) 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 of free speech and expression guaranteed under Article

19(1)(a) and (d) of the Constitution. The law also upsets the

balance between the rights guaranteed and such reasonable

restrictions, that Article 19(2) constitutionally permits, as may

be imposed thereon. Such restrictions are not in the interest of

public.

(X) The restrictions imposed by the Jammu & Kashmir Prevention

of Beggary Act, 1960 and the Jammu & Kashmir Prevention of

PIL 24/2018 Page 191 of 196 Beggary Rules, 1964 and the curtailment of the right of

freedom of speech and speech are also disproportionate to the

object of the legislation and the situation sought to be

addressed. The restrictions imposed are in a manner more

intrusive than necessary. The restrictions are inappropriate and,

for this reason as well, are not saved as permissible regulation

under Article 19(2) of the Constitution of India.

(XI) The classification under Section 2(a) of the Act based on no

intelligible differentia is impermissible and invalid

classifications. They do not have any nexus with the object of

the legislation let alone a reasonable nexus thereto. The

classification is arbitrary and irrational and fails to ensure

equality before the law to the persons who are targeted resulting

in their discrimination and, as such, is violative of rights of the

beggars under Article 14 of the Constitution of India.

(XII) Sections 3, 4, 5, 6, 7 and 8 of the Jammu & Kashmir Prevention

of Beggary Act, 1960, and Rules 3, 4, 5, 6, 8 and 9 of the

Jammu & Kashmir Prevention of Begging Rules, 1964, which

make begging an offence (Section 3); prescribing a mandatory

detention on the mere perception of the law enforcer (Section

4); mandatory incarceration even to establish innocence

(Section 5); mandatory sentence upon a second and further

conviction (Section 6); the nature of the summary inquiry

(Section 5); punishment for escaping from the place of

detention of persons who are compelled to beg in order to meet

PIL 24/2018 Page 192 of 196 the basic needs for bare survival (Section 7) which is way

below even the minimum level of sustenance; drastic powers

vested in the institutions to which the perceived offenders are

required to be committed; undignified treatment and procedures

following the awarding of the sentence (Sections 8 and 9), are

arbitrary beyond the bounds of reason. Those provisions taking

away the judicial discretion completely cannot be considered

fair, just and reasonable. As such, these statutory provisions

violate the rights guaranteed to a person under Article 14 of the

Constitution of India and are held to be unconstitutional.

(XIII) Begging manifests the failure of the State to ensure basic

entitlements of health, food, clothing, shelter, just and humane

conditions of survival, opportunity to work which are all

essential concomitants of Article 21 of the Constitution of

India. The J&K Act of 1960 and the Rules of 1964 result in

disproportionate infringement of the right to a meaningful life,

dignity, privacy and liberty guaranteed under Article 21 of the

Constitution of India of the poor.

(XIV) Section 6(2) which provides for a mandatory detention upon a

second conviction is held to be specifically inflicted with

procedural unfairness. It is an unreasonable restriction on the

rights conferred by Article 19(1), is punitively outrageous,

rehabilitatively counter-productive, unreasonable, arbitrary,

unfair unjust and is voided as being also violative of Article 14

and the right to life conferred by Article 21.

PIL 24/2018 Page 193 of 196 (XV) The deprivations and compulsions imposed, envisaged and

permitted under Rules under Rules 6, 8, and 9 of Rules of 1964

in the detention centers enable treating the detained person with

utmost disdain and disrespect, violate his dignity, thus also

eroding his self worth, are also an extreme intrusion on the

privacy of the detained person and are an assault on the

guarantee assured to all persons as in contained in Article 21 of

the Constitution of India.

(XVI) The prescription under Article 39 of the Constitution of India,

has been completely overlooked while enacting and

implementing the provisions of the Jammu & Kashmir

Prevention of Beggary, Act, 1960 and the Jammu & Kashmir

Prevention of Beggary Rules, 1964.

(XVII) The State Government has failed to ensure discharge of the

Constitutional mandate under Section 13 of the Constitution of

India as well the Constitution of the Jammu & Kashmir State,

to ensure the citizens of the State justice-social, economic and

political and a society that promotes welfare of all; that

Sections 19(a) and (d) which enjoins upon the State to make

provisions for securing amongst others the right to work,

adequate maintenance in the event of unemployment and other

cases of undeserved want by providing social insurance;

Section 23 which guarantees to the socially and educationally

backward section of people special care, and, inter alia,

protection against social injustice.

PIL 24/2018 Page 194 of 196 (XVIII) The prescription under Article 39 of the Constitution of India

and Part IV of Constitution of Jammu & Kashmir has been

completely overlooked while enacting and implementing the

provisions of the Jammu & Kashmir Prevention of Beggary

Act, 1960, and the Rules framed thereunder.

(XIX) As a result of the above, all prosecutions under the enactment

against the persons alleged to have committed offences of

begging would not survive. The power to do so would

appropriately vest in the court seized of such prosecution. We

are hereby confining ourselves to the present observation that

the fate of the prosecutions, if any, has to abide by the present

judgment and our observations and findings herein contained.

(XX) The order dated 23rd May, 2018, passed by the District

Magistrate, Srinagar, is based on no material at all, is premised

on sheer prejudice and violates the rights of beggars guaranteed

under Article 14, 19 and 21 of the Constitution of India. The

same is legally unsustainable.

(XXV) Result

386. In the result, we declare that the provisions of the Jammu &

Kashmir Prevention of Beggary Act, 1960 and the Jammu & Kashmir

Prevention of Beggary Rules, 1964, are unconstitutional and hereby strike

them down.

PIL 24/2018 Page 195 of 196

387. As a result of the above, all prosecutions under the enactment

against the persons alleged to have committed offences of begging would

not survive. The power to do so would appropriately vest in the court seized

of such prosecution. We are hereby confining ourselves to the present

observation that the fate of the prosecutions, if any, has to abide by the

present judgment and our observations and findings herein contained.

388. The impugned order dated 23rd May, 2018, passed by the

District Magistrate, Srinagar, is hereby quashed.

This writ petition is allowed in the above terms.

(RAJESH BINDAL) (GITA MITTAL) JUDGE CHIEF JUSTICE Date: .10.2019 Abdul Qayoom, PS

i) Whether approved for reporting in Yes Law journals etc.:

ii) Whether approved for publication Yes in press:

PIL 24/2018 Page 196 of 196 ABDUL QAYOOM LONE 2019.10.25 14:54 I attest to the accuracy and integrity of this document