Revisiting Anti Vagrancy Laws from a Post Colonial Perspective

By Arbina Dey

I. Introduction

The dictionary meaning of the term ‘vagrancy’ connotes—being in a constant state of idle wandering without any visible means of support.[1] Most anti-vagrancy statutes draw a presumption of lawlessness against those who exhibit such a state of vagrancy. This then goes on to form the basis of the entire anti-vagrancy scheme in a state. The purpose of such a presumption and its propriety needs to be assessed in an appropriate context which sufficiently reflects the state of a particular society, along with its prevalent problems and corresponding demands.

A historical analysis of anti-vagrancy laws, which sprouted from fourteenth century United Kingdom,[2] would lend to a better understanding of their relevance in the modern world. The paper in the first part deals with this aspect. In the second part, the paper undertakes to assess their impact on a modern civilization, which has undeniably advanced in terms of recognition of citizenry’s rights. Additionally, it also discusses some of the severe shortcomings of the present anti-vagrancy system, which continues to draw heavily from its antique predecessors. Lastly, this paper explores the possible departures that the law can make in order to contain the proliferation of the potential misuse the existing laws can be, perhaps to an extent are, subjected to.

II. Anti-vagrancy Laws: A Historical Analysis

I believe that the effectiveness of any law that is enacted has to be judged from a socio-legal perspective.  The society is the largest stakeholder in the law making process in so far as any law that seeks to exert itself can only be deemed to be successful if it manages to bring about a corresponding change or consensus in society. Otherwise, it can largely be termed as obsolete. A sociological analysis of laws requires a study of the mutual influence that certain patterns of law and the corresponding societal habits exert on each other; wherein one not only triggers changes in the other but also adapts oneself relative to the other.[3]

The first statute to concentrate exclusively on vagrancy was adopted in the year following the Black Death in England, in 1349.[4] This statute effectively made non-employment an objectionable position to be in and non-acceptance of any employment by such persons a punishable offence.  It stipulated that

“every man and woman, of what condition he be, free or bond, able in body, and within the age of threescore years, not living in merchandize nor exercising any craft, nor having of his own whereon to live, nor proper land whereon to occupy himself, and not serving any other, if he in convenient service (be required to serve, shall be bounded to serve him. . . And if any refuse, he shall on conviction by two true men, be committed to gaol till he find surety to serve.”[5]

The dismal dearth of labourers who had helped subsist the manorial system in the country, brought about by the tragedy was alarming for the state, and the response was swiftly reflected in this policy change that followed. This was aimed at providing the landlords with sufficient labour. However, the lawmakers also anticipated a corresponding economic response in the labour-force on the face of such a statutory command. The law then was tailored to restrict the labourers from migrating on the lookout for higher wages by effectively rendering any act of accepting higher wages than what was prescribed, as unlawful.[6] The next few amendments tended to exact more from the targeted section by imposing higher punishments on them in case of an attempt to escape the conditions forced down on them.[7]

With the advent of the sixteenth century, there was a sharp shift in focus which was hard to grip given the repetitive phraseology of the new statutes. This shift panned out not in terms of the target but rather in terms of the purpose that the statutes now seemed to propagandise. The addition of phrases in the statutory definition of vagrancy, such as, “… can give no reckoning how he lawfully gets his living”[8] suggests that any idle person was now charged with the presumption of being a potential felon. This change was also geared by the ongoing social changes that England oversaw during that period. The breakup of feudalism and the growing dependency on foreign channels for commerce, and the need for a safe haven for the same to flourish mandated certain structural changes in the criminal legal system. Hence, the anti-vagrancy statutes sought to embody the same by putting under the scanner any person who could potentially by virtue of his general status be a threat to such changes.[9]

Thus, “unwillingness or inability to work became a sort of economic crime.”[10] This was also followed by imposition of harsher punishment on such vagabonds,[11] perhaps indicating an attempt to cushion in the fears and apprehensions of those whose status was affected by the shift in the social structure. Gradually, the scope of action of these laws was expanded even further by making many more targets susceptible by virtue of their positions in society.[12]

Through this study, a common understanding arises that the status of the anti-vagrancy laws imperatively reflected the concerns and interests of the influential part of the community. In fact they have often been termed as the “rich man’s law”.[13] In other words, the main thrust of anti-vagrancy laws was never a social concern for the downtrodden but, an attempt to control the social order in favour of those who were already considered to be ‘civilized’.

Many offenders, who are termed vagrants and brought within the ambit of the vagrancy laws, do not fit the ordinary definition of the word ‘vagrant’. Moreover, many of the offences falling under these laws are hardly connected to poverty relief, and are more directed towards crime prevention, preservation of public order, and promotion of social economy.[14] The same position has been reiterated in many common law countries like the USA and India which largely borrowed their anti-vagrancy statutes from their erstwhile colonial dictators.[15] In fact in India, the enactment of such laws reaffirmed the conclusion that it was indeed the poor who were being systematically targeted and not poverty, since the colonial masters saw no incentive whatsoever in aiming to protect their subjects in India by bringing forth such statutes. With this understanding as the premise of all such laws, an analysis into their propriety and relevance can be undertaken.

In India the statutes are divided in to two categories of nomenclature, however they essentially target the same group of people and similar category of acts. Two states in India currently have ‘anti-vagrancy’ laws, namely West Bengal and certain parts of Kerala, whereas the others have ‘anti-beggary’ laws. Many of them are a product of the pre-independence regime. The first peculiar feature of this class of legislation is the absence of the good faith clause.[16] In other words, they lack what constitutes the basic norm of any criminal statute – presumption of innocence until proven guilty – since their scheme is based on apprehending potential criminals.

III. Impact Of Anti-vagrancy Laws On Fundamental Rights

The above peculiarities of the anti-vagrancy laws in turn has led to many excesses having been exhibited by those entrusted with this un-rattled power to impute criminality on persons they deem appropriate, and even incarcerate many.[17]  In many of these Acts, the definition used for begging or vagrancy are so wide that it effectively allows the authorities to transgress into the fundamental rights domain of those they seek to target without appropriate justification. For instance, the Bombay Prevention of Beggary Act, 1959, includes the following as instances of beggary: “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”[18] 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”.[19]

This essentially curbs a person from adopting a mode of living of her choice, in case that includes putting up road side performances in exchange for money. Moreover, they also effectively forbid them from appearing to be poor or shabbily dressed in public, lest they give rise to suspicion of being vagrants who need to be detained. In other words, these Acts allow for the criminalisation of the “ostensibly poor”[20] apart from those who may peacefully want to engage in street activities as a means of their subsistence.

This is problematic in many aspects. Firstly, it infringes upon a person’s fundamental right to livelihood by prohibiting her to undertake certain ways of earning her subsistence. Secondly, since it forbids asking for alms, it also encroaches upon a person’s fundamental right to speech and expression, in so far as the person may die of hunger but may not ask for public alms under the Act. Thirdly, these restrictions cumulatively constitute a heavy restraint on a person’s right to life as well. Moreover, it also marks a convenient shirking of responsibility on part of the government to ensure that sufficient means to subsist are provided for and that no one is compelled to beg out of circumstances. In India, the Directive Principles of State Policies seek to ensure that the state meets “all cases of undeserved wants.”[21]

These issues are aggravated by other factors as well. Since the governments do not, and in many developing countries like India where it cannot, provide for sufficient alternatives wherein the circumstances of those who are detained are not significantly improved, instances of detention essentially marks an unjustifiable deprivation of life and freedom of those persons. Also, many acts provide for apprehension of those who are dependent on those who fall under the definition of beggary or vagrancy,[22] which would include children and disabled persons who suddenly find themselves at the mercy of the authorities who can incarcerate them for no fault of theirs. Further, some also provide for segregated detention of women, men, children, and certain categories of ailing patients[23]– essentially uprooting them from their families and guaranteeing them no better or suitable support.

These factors are gaping holes in the fundamental right jurisprudence of any modern country, which seeks to function on fundamental tenets of equality and basic freedom, and still they continue to exist even after having gone through judicial scrutiny.[24] This perhaps stems from the fact that because the section of the community such laws seek to cover are so down the rung that their fundamental right violation is perhaps tolerated or even seen as essential to protect the rights of the larger community. In the obvious absence of any means on their part to protect themselves against such depravity, and a dearth of requisite number of interest groups that would continuously remind the judiciary or the legislature of atrocities that these statutes continue to bestow upon these people, a stagnancy in reform in this part of the legal system is not hard to comprehend.

IV. Conclusion

If any real change has to occur in this area, it must essentially stem from an understanding on part of the government of the need to balance the interest of both sides, and be mindful of not throttling the rights of the marginal community in order to cushion the worries of those relatively well placed. A distinction must be made of those vagrants who actually pose a threat by way of aggressive persuasion, threat, harassment, or violence, from those who lead a way of life which simply does not conform to the standards of a certain segments of society. Additionally, the onus must be on the government to ensure that such a distinction is given effect to by way of greater application of mind by the enforcement authorities. In a modern civilisation which sells itself on upholding the basic tenets of liberty and equality, the rights of those at the bottom cannot be conveniently dusted under the carpet, and its success will be highly contingent on to what extent their rights are safe-guarded.

(This was the essay that won second place in the 1^st JILS Essay Competition, 2018. The author is a fourth year student of the WB National University of Juridical Sciences, Kolkata)

[1] Vagrant, Merriam Webster, available at: https://www.merriam-webster.com/dictionary/vagrant, last seen on 14/03/18.

[2] William J. Chambliss, A Sociological Analysis of the Law of Vagrancy, 66 Social Problems (1964), available at: http://www.jstor.org/stable/pdf/798699.pdf?refreqid=search:d186aaf026dc27f362fdd53e233b5660, last seen on 14/03/2018.

[3] Id.

[4] Statute of Labourers, 1349.

[5] The Ordinance of Labourers, 23 Ed. 3 (1349).

[6] Caleb Foote, Vagrancy-Type Law and Its Administration, 615 University of Pennsylvania Law Review (1956),

available at: http://www.jstor.org/stable/pdf/3309853.pdf?refreqid=search:d186aaf026dc27f362fdd53e233b5660 last seen on 17/03/18. .

[7] Vagabond and Beggars Act, 511 H. & C. 2 (1495).

[8] The Vagabonds Act, 22 Hen. 8, c. 12 (1530).

[9] Rollin M. Perkins, The Vagrancy Concept, 9 Hastings L.J., 237, 238 (1958).

[10] Supra 2.

[11] One who could give no good account how he made his living was to be “tied to the end of a cart naked and to be beaten with whips throughout the same market town or other place, till his body be bloody.” Richard Burn, The History of the Poor Laws: With Observations, 122 (1^st ed., 1764). 2.

[12] Vagabond Act, 1 Ed. 6. c. 3 (1547) and in fact is made more general so as to include: Whoever man or woman, being not lame, impotent, or so aged or diseased that he or she cannot work, not having whereon to live, shall be lurking in any house, or loitering or idle wandering by the highway side, or in streets, cities, towns, or villages, not applying themselves to some honest labour, and so continuing for three days; or running away from their work; every such person shall be taken for a vagabond. And upon conviction of two witnesses, the same loiterer (shall) be marked with a hot iron in the breast with the letter V, and adjudged him to the person bringing him, to be his slave for two years.

[13] William E. Williams, Vagrants—A Study in Constitutional Obsolescence, 22 U. Fla. L. Rev. 384 (1970).

[14] Earl of Halsbury, The Laws of Eng land, Butterworth & Co., Bell Yard, Temple Bar, 1912, pp. 606-607.

[15] Supra 6.

[16] Usha Ramanathan, Ostensible Poverty, Beggary and the Law, 34 Economic and Political Weekly Vol. 43 (2008), available at: http://www.jstor.org/stable/pdf/40278127.pdf?refreqid=search:4466338aac22b6a11bc626fd2558066c last seen on 17/03/18.

[17] Id.

[18] Bombay Prevention of Beggary Act, 1959, § 2.

[19] Id.

[20] Supra 16.

[21] Id.

[22] Bombay Prevention of Beggary Act, 1959, § 9.

[23] The Bengal Vagrancy Act, 1943, § 9(3).

[24] Supra 16.