The Delhi High Court order striking down the Begging Act heeds the Constitution’s transformative nature
In 1871, the colonial regime passed the notorious Criminal Tribes Act. This law was based upon the racist British belief that in India there were entire groups and communities that were criminal by birth, nature, and occupation. The Act unleashed a reign of terror, with its systems of surveillance, police reporting, the separation of families, detention camps, and forced labour. More then six decades after independent India repealed the Act, the “denotified tribes” continue to suffer from stigma and systemic disadvantage. The Delhi High Court’s judgment marks a crucial step forward in dismantling one of the most vicious and enduring legacies of colonialism. It is as significant and important as a judgment delivered by the same court more than nine years ago, when it decriminalised homosexuality ( Naz Foundation v. NCT of Delhi ). It is perhaps fitting that this judgment comes just a few days before the Supreme Court is likely to vindicate Naz Foundation after a 10-year legal battle. Both Naz Found ation and Harsh Mander recognise that our Constitution is a transformative Constitution, which seeks to undo legacies of injustice and lift up all individuals and communities to the plane of equal citizenship.
However, it remains only one step forward. Hopefully, other High Courts will follow suit and the constitutionality of vagrancy laws as well as other provisions in the Indian Penal Code that criminalise status will also be called into question. Nonetheless, it is important to remember one thing: a court can strike down an unconstitutional law, but it cannot reform society. Poverty — as the Chief Justice recognised in her judgment — is a systemic and structural problem. The Delhi High Court has done its job in striking down a vicious law that criminalised poverty. But it is the task of the Legislative Assembly and the government to replace the punitive structure of the (now defunct) Begging Act with a new set of measures that genuinely focusses on the rehabilitation and integration of the most vulnerable and marginalised members of our society.