Our inherently anti-poor vagrancy laws

During the colonial times, vagrancy laws were widely enacted in many European colonies, including the British Raj. In the erstwhile Bengal, the Raj enacted the Vagrancy Act, 1943 (Bengal Act), which specifically dealt with the issue of begging as an issue of vagrancy. Interestingly, it was also enacted at a time when Bengal was experiencing a devastating famine. Notably, since antiquity, vagrancy laws have always been used as a pretext for arresting people based merely on suspicions, often as a pre-emptive measure. Another peculiarity is that the laws allow the arrest of a person for their status, instead of the acts they have committed. Thus, it penalises the poor, marginalised and the 'other' people of our society, who cannot afford a home and lead an iterant life. The arrest and detention of persons because they are poor stems from the stereotypical views held by society towards poverty as a source of criminality. In effect, it limits the freedom of movement of the itinerant workers, and the fear of detention forces them to find work even at lower wages by reducing their bargaining capabilities, while the rich never has to face similar treatment under the law.

Again, the fakirs, sadhus, sanyasis and darvesh have a long tradition of living an itinerant life, inspired by their spirituality and beliefs. These laws, besides penalising the labour class, also operate to suppress the people who do not conform to the mainstream society and thus undermine the cultural and religious diversity of particular regions. Hence, the laws do not merely have an 'anti-poor' character, but also an intersectionally harmful dimension.

In our jurisdiction, the two most-cited laws used to arrest or detain the vagrants are (i) the Code of Criminal Procedure, 1898 (CrPC) and (ii) the Vagrants and Shelterless People (Rehabilitation) Act, 2011 (VSPR). Section 55(b) of CrPC defines a 'vagabond' as someone 'who has no ostensible means of subsistence, or who cannot give a satisfactory account of himself' and allows the officer-in-charge of a police station to arrest or cause him/her to be arrested within the limits of such station. The provision specifies that the arrest may be made in the same manner as in section 54, i.e. without a warrant or an order from the Magistrate. Thus, it places the offence of vagrancy in the same category as a cognisable offence as in section 54. Moreover, it also gives to the police broad powers to arrest a person.

On the other hand, the VSPR Act provides a broad definition of vagrants, terming them as 'person who has no fixed place or space for living or overnight stay or creates public disturbance by wandering around aimlessly or engages in begging from own or being induced by others; but does not include any person who collects and utilises money, food or aid for charitable, religious or publicly beneficial causes.' The definition, besides being overly broad, is vague as well and fails to contemplate the peculiar circumstances a person may be in. An internally displaced person, for example, who has lost homes due to natural disasters or social, political or economic reasons may be considered a vagrant and thus be subjected to detention under this Act. Furthermore, the provision arbitrarily excludes the people who collect money for charitable, religious and publicly beneficial purposes, but includes people engaged in begging in general, however poor they may be. Hence, despite the use of the term 'rehabilitation' in the title of the law, the law in effect operates as a deterrent against the poor and homeless class.

Now, these laws have serious human rights implications, in relation to both the civil and political rights, and the economic, social and cultural rights. Apart from making arbitrary arrests and detention, these laws not only restrict a person's freedom of movement (per Article 12, Covenant on Civil and Political Rights or CCPR) but also make it harder to enjoy fair wages and remuneration (per Article 7, Covenant on Economic, Social, and Cultural Rights or CESCR) due to loss of bargaining power. In the worst case, it forces them to do jobs they do not freely choose, thereby violating their right to work (per Article 6, CESR).  Again, per Article 26 of the CCPR, effective protection against discrimination on any ground, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status must be guaranteed by the State. It requires equality before the law and equal treatment of law for all. However, selective penalisation by the vagrancy laws of people based on their economic condition, the poor in particular, reveals its discriminatory and disproportionate nature, and violates the principles of equality and non-discrimination.

To conclude, the vagrants and homeless should be given a chance to find work and lead a dignified life, rather than arbitrary arresting them or penalising them for their socioeconomic status. Displacing them arbitrarily does not eradicate the root cause of the problem, it conceals the responsibility of the State towards the poor. Instead, a more humane and compassionate approach is necessary for their integration into the society.

The writer works at Law & Our Rights, The Daily Star.