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The Hindu Notes for 13 August 2018

Undoing a legacy of injustice

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 More then six decades after independent India repealed the Act, the “denotified tribes” continue to suffer from stigma and systemic disadvantage.

Instance of dehumanisation

The Act was one strand of a web of colonial laws that dehumanised communities and ways of life. The colonial administrators were particularly concerned about nomadic and itinerant communities, which by virtue of their movements and lifestyle were difficult to track, surveil, control, and tax. Through laws such as the Criminal Tribes Act, and other legal weapons such as vagrancy laws, the regime attempted to destroy these patterns of life, by using criminal laws to coerce communities into settlements and subjecting them to forced labour.

Independence brought with it many changes, but also much continuity. Despite the birth of a Constitution that promised liberty, equality, fraternity, and dignity to all, independent India’s rulers continued to replicate colonial logic in framing laws for the new republic. They continued to treat individuals as subjects to be controlled and administered, rather than rights-bearing citizens. One of the most glaring examples of this is the Bombay Prevention of Begging Act. The Begging Act was passed in 1959 by the State of Bombay, and has continued to exist in as many as 20 States and two Union Territories. But last week, in a remarkable, landmark and long overdue judgment, the Delhi High Court struck it down as inconsistent with the Constitution.

The minutiae

What does the Begging Act do? It criminalises begging. It gives the police the power to arrest individuals without a warrant. It gives magistrates the power to commit them to a “certified institution” (read: a detention centre) for up to three years on the commission of the first “offence”, and up to 10 years upon the second “offence”. Before that, it strips them of their privacy and dignity by compelling them to allow themselves to be fingerprinted. The Act also authorises the detention of people “dependant” upon the “beggar” (read: family), and the separation of children over the age of five. Certified institutions have absolute power over detainees, including the power of punishment, and the power to exact “manual work”. Disobeying the rules of the institution can land an individual in jail.

From its first word to the last, the Begging Act reflects a vicious logic. First, there is the definition of “begging”. The Act defines it to include “soliciting or receiving alms, in a public place whether or not under any pretence such as singing, dancing, fortune telling, performing or offering any article for sale” and “having no visible means of subsistence and wandering about or remaining in any public place in such condition or manner, as makes it likely that the person doing so exist soliciting or receiving alms.”

Not only do these vague definitions give unchecked power to the police to harass citizens but they also reveal the prejudices underlying the law. The pointed reference to “singing, dancing, fortune telling, performing or offering any article for sale” makes it clear that the purpose of the Act is not simply to criminalise the act of begging (as commonly understood), but to target groups and communities whose itinerant patterns of life do not fit within mainstream stereotypes of the sedentary, law-abiding citizen with a settled job. And the reference to “no visible means of subsistence and wandering about” punishes people for the crime of looking poor — but it also reflects the lawmakers’ desire to erase from public spaces people who look or act differently, and whose presence is perceived to be a bother and a nuisance. The Begging Act encodes into law the vicious prejudice that recently saw a prominent institution putting up spikes outside its Mumbai branch, to deter rough sleeping (they were removed after public outrage).

Once individuals fall within its clutches, the Begging Act effectively renders them invisible, by confining them to “certified institutions” after a truncated, summary judicial procedure. Like the poorhouses of 19th century Europe, it is based on a philosophy of first criminalising poverty, and then making it invisible by physically removing “offenders” from public spaces. Effectively, it places a cordon sanitaire around the poor and the “undesirable”, keeping them from accessing spaces reserved for the use of “respectable” citizens. For these people, the constitutional guarantees of pluralism and inclusiveness do not exist.

The authorities have not hesitated to use the Begging Act as a weapon. Just before the 2010 Commonwealth Games, the Delhi government was engaged in combing operations to take beggars off the street, lest their presence embarrass the nation in the eyes of foreigners. Such operations are also a regular part of preparing for national events, such as Independence Day and Republic Day.

The judicial view

In its judgment delivered last week (Harsh Mander v. Union of India and Karnika Sawhney v. Union of India), a Bench of the Delhi High Court presided over by the Chief Justice, held that the Begging Act violated Article 14 (equality before law) and Article 21 (right to life and personal liberty) of the Constitution. In oral argument, the government conceded that it did not intend to criminalise “involuntary” begging. The High Court noted, however, that the definition of begging under the Act made no such distinction, and was therefore entirely arbitrary. More importantly, it also held that under Article 21 of the Constitution, it was the state’s responsibility to provide the basic necessities for survival — food, clothing, shelter — to all its citizens. Poverty was the result of the state’s inability — or unwillingness — to discharge these obligations. Therefore, the state could not turn around and criminalise the most visible and public manifestation of its own failures — and indeed, penalise people who were doing nothing more than communicating the reality of their situation to the public.

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 Foundation 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.

The inexorable wheels of justice

India’s legal history is replete with interesting cases of religious faith versus the law

The recent hearings in the Supreme Court relating to the Sabarimala case have turned the spotlight on the status of religious faith in a system governed by the rule of law and the Constitution. Any attention bestowed on such discussions by a person of faith and belief appears to leave the observer with an uneasy feeling that the Constitution is the prime suspect in these proceedings. It leaves him with the uncomfortable thought that from the time of the advent of the Constitution, no religious practice has been safe in a system of Constitution-controlled governance. Nothing could be farther from the truth. The clash between religious faith and the law is not of recent origin and it would be unfair to lay the blame at the doorstep of the Constitution. On the other contrary, it is an inevitable consequence of human evolution.

For centuries, religious faith and the principles it enunciated were the “law” that regulated society. But in a democracy with the Constitution as a guiding force, it is natural that the new order would challenge the old, and the litigative battles that we see in court today are the struggles between that old order and the new in the path of human evolution.

This is, however, not to say that the struggle between the law and religious faith did not exist before the Constitution came into existence. There were people who asserted the supremacy of the law over religious belief even in the pre-Constitution days. One such example was the “Tirupathi Mahant case” in the Madras High Court.

The Tirupathi case

Its facts are as follows. The East India Company, till the middle of the 19th century, oversaw the management and administration of the properties of the deity, Venkateswara or Srinivasa (or Balaji). After the Madras Regulation of 1817 was passed, the temple came under the Board of Revenue which supervised it through the District Collector. However, a movement in England (around 1840) disapproved a Christian company (the East India Company) administering Hindu and Muslim religious institutions. Consequently, the administrative reform management of the temple was handed over to a mahant who, as the head of that mutt, had his headquarters in Tirupathi. He was also commonly referred to as the Mahant of Tirupathi.

When a flagstaff for the temple was erected, devotees donated large sums of money to acquire gold coins. These were to be placed in a vessel which was then buried at the base of the flagstaff. But soon a charge of criminal breach of trust and misappropriation was made against the mahant, with the allegation that the coins had been substituted with copper coins.

Such a charge could have been proved or disapproved only by digging up the base of the flagstaff. But religious faith proved to be an obstacle. The mahant pleaded that the flagstaff could not be dug up after it had been sanctified and installed and such a course would prove calamitous to the sentiments of worshippers.

Interestingly, the high priest, much against public sentiment, persevered and filed an application to have the vessel produced. The Magistrate ordered the application as prayed for. Against the order of the Magistrate, a revision petition was filed before the Madras High Court which in turn led to one of the most sensational cases in its history.

A legal battle ensued between two of the greatest legal luminaries. Subramania Iyer (who went on to become a judge of the Madras High Court) appeared for the high priest, while Eardley Norton, a formidable barrister, appeared for the mahant. The case was heard by the Bench of Chief Justice Arthur Collins and Justice Muthusami Iyer.

Upholding justice

P.S. Sivasamy Iyer, an advocate general and another High Court luminary, had a ringside view of the proceedings. In his memoirs he recalled: “He (Norton) invoked the religious sanctity of flagstaff and he appealed to the court to avoid a sacrilege, which could ring throughout the orthodox world, and he advanced every possible argument against digging up the site of the flagstaff. Norton went on for three hours. Sir Subramania Iyer’s turn then came. He spoke for less than an hour, but the effect was electric. All of Norton’s arguments were smashed completely within the span of less than half an hour. He wound up his magnificent speech, a speech of real eloquence, with that well-known saying, Fiat justitia ruat caelum which means as you know, ‘Let justice be done even though the heavens fall’. It was one of the best speeches I have ever heard from him, compact, condensed, and full of vigour and eloquence, just like him.”

The Bench upheld the Magistrate’s order, (with the judgment delivered by Justice Muthuswami Iyer). It was a revelation. The vessel had no gold, just base metals.

Therefore, even before the adoption of the Constitution, our legal history is replete with interesting cases of religious faith versus the law. If for any reason the Sabarimala case were to induce heartburn among its ardent devotees, whatever be their sentiments, they must bear in mind that the Constitution cannot be blamed. For in the ultimate analysis, as Subramania Iyer appropriately observed, “Fiat justitia ruat caelum.

The house that Naipaul built

It is not his travel writing that makes him one of the greatest writers of the 20th century, it is his fiction

The joke, considered by some to be factual, runs like this. An Englishman, an admirer of the descriptive writing of the blind Ved Mehta, goes to a literary party in London in the 1980s because he has heard that Mehta would be there. The Englishman suspects that any writer who is so good at description cannot be truly blind. On arriving, he asks the hostess if Mr. Mehta is in the room. She says, yes, I think he is sitting on a sofa at the back of the hall. The Englishman navigates his way through the crowd and reaches the back. He spots an Asian sitting alone on a sofa. Sneaking up, the Englishman waves his hands in front of the Asian’s face. No response. The Englishman pulls faces. No response. Just then the hostess passes by, so the Englishman turns to her and whispers, “You know, Mr. Mehta there is really blind”. “But that is not Mr. Mehta,” she replies. “That is V.S. Naipaul.”

Like all good jokes, there are elements of truth in this one. V.S. Naipaul, or Sir Vidia as he was called after receiving his knighthood, winner of the Nobel Prize for Literature, was a man who did his own stuff, and seemed to be blind to those who pulled faces at him. This was misleading: he could see them and was often highly conscious of what they were doing. But he would not condescend to respond to them, except indirectly in his writing. This was an indication of his greatness as a writer.

Naipaul’s hurt

Born on a small Caribbean island to a family of Indian origin, Naipaul made himself a major writer with a rare single-mindedness of purpose. He also brought this concentration, this ability to observe without seeming to be moved, to the best of his works. Of course, this ability was misleading. “Mad Ireland hurt you into poetry,” W.H. Auden wrote of W.B. Yeats. The madness of the world was also essential to Naipaul’s oeuvre. But while Yeats, the poet influenced by a Romantic sensibility, wore his hurt on his literary sleeve, Naipaul kept it deeply hidden. That is why Yeats’s hurt translates into beautiful, lyrical poetry with little humour in it, and Naipaul’s hurt translates into humorous, ironic or satirical fiction at its best.

Despite the fact that Western critics focus inordinately on it, it is not Naipaul’s travel writing that makes him one of the greatest writers of the 20th century, it is his fiction. His travel writing comes across as hasty at times. I suspect the reason so many Western journalists do not see this is that, at a far higher level of accomplishment, Naipaul’s travel books move through the non-West with something of the burden of received opinions and impatience that Western journalists often display in their incursions.

But even here, there is a difference. Naipaul’s highly accomplished non-fiction was flawed not as much by what he saw critically and impatiently in other cultures, for these insights were often acute despite being politically unsavoury, but what he chose not to see in them — and in himself. This had to do with his hurt; his, at times, desperate trajectory from the margins to the centre, and its consequences.

The hurt that Naipaul does not easily show — or shows only as criticism, humour, satire — is revealed in the nature of the two of his greatest books, which are among the greatest ‘novels’ of the 20th century: A House for Mr Biswas (1961) and The Enigma of Arrival (1987). In very different ways, both occupy that particularly fruitful space between fiction and memoir. A House for Mr Biswas, with a story inspired by Naipaul’s father’s warped intellectual struggles in a discouraging postcolonial environment, is one of those rare recent novels in which the protagonist is basically conservative and yet gains the reader’s sympathy. The Enigma of Arrival is the story of the writer V.S. Naipaul, told by the writer V.S. Naipaul: a memoir dressed up as a novel, or a novel dressed up as a memoir, depending on how you choose to look at it. Selecting deceptively from actual autobiographical facts, this ‘novel’ (which is what Naipaul chose to call it) is correctly read by critics as examining the ambiguities of leaving or arriving ‘home’.

But what also needs to be recalled is that the place where Naipaul arrives, or fails to arrive, in this novel is next to Stonehenge, the very heart of England, so to say. This trajectory remains central to any understanding of Naipaul as a person and a writer. It relates to the hurt I have mentioned, which is primarily that of a great artist seeking to escape — and all artists seek this, consciously or not — the whirlwind of time. This might also mean escaping the lesser storms of ugliness, pettiness, disorder. For writers who feel, as the younger Naipaul obviously did, caught on the margins of history, to be ‘post’ not just the colonial but also at times the sensible, this hurt assumes compulsive force. It is an index of Naipaul’s artistic greatness that he shaped it into highly honed creativity and did not allow it to seep, as it often does in postcolonial circles, into insistence, rhetoric, bitterness and resentment.

Contested politics

Naipaul’s politics, especially but not only in his non-fiction, has been often indigestible to many, including, at times, me. This does not detract from his stature as a writer, especially a writer of fiction. But it cannot be ignored. In Naipaul’s defence, one has to add that he often seemed to operate with a basic assumption that was anathema to the Left but that is largely justified. The Left (much more so in the past) operates on the assumption that if only the poor and the deprived could assume power, we would overcome the problem of power being abused. In all his writing, indirectly but clearly, Naipaul scoffs at this idea. For him, the fact that you are poor is no guarantee that you will be just if you assume power; the fact that you were deprived does not mean that, given a chance, you won’t deprive others.

Hence, while acutely aware of the abuse of power within any conservative status quo, finally Naipaul prefers a coherent status quo to radical or revolutionary change. This explains his sympathy for extant English and (to a certain extent) Brahminical-centric tendencies over radical religious, social and political ideologies. Perhaps like Mr Biswas in his long-sought and finally half-achieved house, Naipaul knew that our house is not perfect and that it is ludicrously incomplete, but he preferred living ironically in it to pulling it down. Who, honestly speaking, can claim that he was entirely wrong? Who, in any case, with a roof over his head?

Making data speak

As a lot of information provided in a small box can be difficult to read, data stories should be given more space

Sridhar Venkatraman, a subscriber of the e-paper from Milton Keynes in the U.K., wrote to us with a few interesting questions about data visualisation in news stories and on the oped page. He said: “First, hats off to the graphics team for making interesting charts and maps and introducing variety to the readers. The charts and maps help in understanding numbers better than tables do. However, the circle-style graph is becoming repetitive. And in some cases, the circles are too small and the text on them is so tiny that I have to zoom in to read. If I zoom in, the context of the entire graphic is lost and I can see only one or two points in close up. As a reader, I am not interested in zooming in and seeing every single State in the country.” Mr. Venkatraman then listed seven data stories to substantiate his argument.

Using scatter plots

The reader makes an important point about the inherent problems with data visualisation. The charts which he refers to are called scatter plots. The data team uses scatter plots specifically for those stories that require multiple variables to explain the complex nature of interplay.

The data team explained the rationale for relying on scatter plots rather than the usual pie charts for the stories cited by Mr. Venkatraman. For instance, in the story “Karnataka sees 300% jump in FDI inflows” (July 24), the data team used a scatter plot to show changes in FDI equity inflows between 2016-17 and 2017-18, respectively, for major States (represented by their Reserve Bank of India circle offices). The scatter plot sought to answer some questions: Which were the States with the highest and lowest FDI inflows? And among States within the high and low FDI inflow categories, which were the ones that registered an increase or decrease and what was the magnitude of those changes?

“By plotting the variables on a scatter plot and setting the graph with a trend line, we were able to isolate States above the trend line (increase in FDI) and below (decrease in FDI). With varying circle sizes in the plot (called bubbles), we indicated the percentage increase in FDI inflow. And by plotting the States on an x-y axis, we managed to show which States had the highest and lowest FDI inflows. All these were conveyed in a 2.5 column and 5 cm space. With the text, we managed to restrict the graphic to a rectangle of 3 column and 10 cm space,” said a data team member.

The data team also explained a data story, “Mutually dependent”, that appeared on the oped page in the ‘Data Point’ section on July 24. “We used a scatter plot to show that a higher number of patents are granted in States that have a flourishing start-up environment and vice versa. Data points have a fixed space of about 2 column x 9 cm. If we had not used scatter plots, we would not have conveyed the entire picture. The Data Point would have only managed to show either the number of patents granted per State or the number of start-ups there. It would have been a simple visualisation — a map of States or a bar chart that showed the States with the highest and lowest number. But it would have missed the bigger picture. The scatter plot, therefore, was again chosen specifically to enhance the information,” he said.

Content and visual appeal

Space is a major constraint in print stories as the newspaper has to accommodate many stories on one page. The scatter plot is a useful device to conserve space and maximise information without missing out any important component. According to textbooks, data visualisation is defined as “the use of computer supported, interactive, visual representations of data to amplify cognition”. While the primary focus of these academic exercises is to find out how to make numbers accessible, the aesthetic experience of the reader and the ease of reading is not given due consideration.

It is true that content comes first in a newspaper and visual aesthetics next. However, in the case of infographics, it is the visual appeal that invites the readers to a data set. Increasing the space for data stories may be an answer to this conundrum.

Exclusionary state

The plight of inter-State migrants is not very different from that of refugees who lack citizenship rights

In India, you do not have to be excluded from the National Register of Citizens to experience a sense of loss of territory, identity, belongingness and livelihood. You could just as easily feel that way if you were a rural-to-urban migrant worker facing dislocation and “uprootedness” — a state of constant threat and anxiety with no sense of control over your spatial and temporal existence. This is akin to the experience of refugees who lack citizenship rights.

A large chunk of migrant labourers’ shelter and work are deemed “illegal” within Indian cities. The 2011 Census pegs the total number of internal migrants in the country, including those who have moved within and across States, at a staggering 139 million.

The state’s role is not as dormant as it appears, when it comes to undocumented workers. It is proactive in allowing the absorption of cheap labour into cities, to serve the bulging demand of the urban middle class. Sometimes these labourers are exploited, required to work below subsistence levels, and reside in subhuman conditions, which is then perceived as encroachment.

When the onus of “giving back” is on the state — of providing migrant workers with proper documents, secure jobs, housing and provisioning of other public utilities — the state often consciously and systematically derecognises them, and conveniently brackets them as “illegal”. Illegality, in turn, results in labels such as “criminals” that must be dealt with by the state again, to protect its “full” citizens, and to exclude the migrants further from the fruits of this “full” citizenship.

Consider the Smart Cities Mission of 2015 that proposed investment allocations of ₹2,039 billion to convert 99 Indian cities into smart cities. A mere 8% of the intended projects have been completed so far in the past three years, according to the recent report released by Housing and Land Rights Network. Interestingly, many smart city proposals identify slums as a “threat” to the city in their “SWOT” (Strengths, Weaknesses, Opportunities, Threats) analysis while totally failing to account for migrant labour in the schemes. The report documents forced evictions and shelter demolitions in 32 out of the 99 proposed smart cities so far. Politically, inter-State migrants do not matter at all anyway because their votes do not count in the destination city.

The national obsession with bringing order to international boundaries could also be applied within nation states, cities and neighbourhoods. The state’s role in ensuring equality, basic dignity, livelihood and providing minimum social security to its people must be upheld before all other priorities.

The writer is a PhD scholar at the University of Delhi, and Founding Partner, Jan Ki Baat