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2019 Supreme(J&K) 292
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Gita Mittal, Rajesh Bindal, JJ.
Suhail Rashid Bhat – Appellant
Versus
State of Jammu and Kashmir and Others – Respondents
PIL No. 24 of 2018
Decided On : 25-10-2019
For the Respondent: Mr. Sheikh Feroz Ahmad.
Headnote:
(A) Jammu & Kashmir Prevention of Beggary Act, 1960 – Sections 2(a), 3, 4, 5, 6, 7 and 8 – Jammu & Kashmir Prevention of Beggary Rules, 1964 – Rules 3, 4, 5, 6, 8 and 9 – Constitutionality of – Provisions of Jammu & Kashmir Prevention of Beggary Act, 1960 and Jammu & Kashmir Prevention of Beggary Rules, 1964, are unconstitutional and hereby struck down – Criminalization of begging is outcome of extremely prejudiced social constructs of presumption of criminality against poor and baseless stereotypes, in ignorance of extreme exclusion and disadvantages faced by poor who are struggling to survive – All prosecutions under the enactment against persons alleged to have committed offences of begging would not survive – Power to do so would appropriately vest in court seized of such prosecution – Impugned order passed by District Magistrate, Srinagar, quashed. (Paras 386, 387, 388, 290, 291, 319 and 385)
(B) Constitution of India – Article 14 – Right to equality – For a classification to be permissible under Article 14 of 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 such differentia must have a relation to object sought to be achieved in statute in question – Challenge premised on an allegation of violation of Article 14 could be successfully made on the ground of discrimination by not only substantive law but also law of procedure. (Paras 215, 216 and 222)
JUDGMENT :
Gita Mittal, J.
1. 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.
2. 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.”
3. The petitioner thus challenges the constitutionality of the enactment on the ground that it violates Articles 14, 19, 20, 21 and 22 of the 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
4. 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:-
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| 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 & Kashmir | 25 to 32 |
| V | Scope of Judicial Review | 33 to 34 |
| VI | Historical analysis and rationale behind the legislation | 35 to 42 |
| VII | What is begging and reasons for it | 43 to 55 |
| VIII | What is entailed in begging-whether any recognized right is involved? | 56 to 64 |
| IX | Inter-relationship of the fundamental rights guaranteed under part-III of the Constitution of India. | 65 to 73 |
| X | Whether the legislation curtails any of the right guaranteed under Article 19 of the Constitution | 74 to 128 |
| XI | The definition of begging-its broad sweep and vagueness | 129 to 188 |
| XII | Inevitable and chilling effect of the overbroad Statute | 189 to 197 |
| XIII | Whether the legislation results in violation of the rights guaranteed under Article 14 of the Constitution of India? | 198 to 225 |
| XIV | Right to life-the Constitutional guarantee under Article 21 of the Constitution of India-Impact of the legislation | 226 to 228 |
| Concomitants of the guarantee under Article 21 | 229 to 238 | |
| Entitlement to protection of dignity, privacy and liberty | 239 to 291 | |
| 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 the District Magistrate, Srinagar. | 371 t |
