Sumit Chatterjee

Any law which seeks to criminalise rough sleeping, begging in public, loitering in the streets and other such conduct is problematic as it perpetuates a vicious cycle of poverty and destitution for those penalised under such laws.

The Hungarian Parliament in 2018 passed a law, which came as a result of an amendment to the Constitution, which empowers its police forces to compel the homeless in the country to move to shelters and to penalise and imprison them if they repeatedly refuse or decline to do the same. The European Union and the United Nations have both condemned Hungary for having passed such a law, with the former contemplating sanctions on the country on top of those already imposed as a result of its anti-migrant stand during the refugee crisis in Europe. But such laws do prevail in other countries, including Australia, England and the United States of America. What is the justification behind enacting such legislations and what harm are they designed to eradicate?

The “Broken Windows” Thesis and the issue of public order

Laws which seek to penalise homelessness are essentially justified by two arguments. The first states that it is the duty of the state to ensure the welfare of each citizen, and thus the rights of individuals occupy a sacrosanct position in the eyes of the state. However, it also has a duty to maintain public order and to ensure tranquillity and peace in the communities. To further the same, laws which penalise homelessness become imperative, as homeless people present a risk to the safety and security of citizens, as homeless people are engaged in a number of criminal activities which disturb the peace and quiet in the society, and these people also have the potential of committing more serious crimes such as murder, robbery etc. The presence of the homeless, thus, might intimidate the “law-abiding” citizens of the community and cause them great inconvenience and anxiety.

The second argument flows from this picture of a society which has little regard for the prevalent legal system. The “Broken Windows” thesis, as it is called, essentially states that communities which turn a blind eye to misdemeanours and petty crimes are much more likely to be affected by instances of serious crimes like burglaries, murder and rape. This thesis then claims that the ideal thing for the law enforcement agencies, like the police, to do in such situations is to monitor and penalise these instances of petty crimes, where the focus shifts from just trying to enforce the written law, and moves to the broader goal of maintaining public order. The cases of vandalism, begging and other such misdemeanours then have to be curbed by the police, so that the general ‘respect’ for the law and for the legal system is restored and upheld.

The Critique of the “Broken Windows” thesis and the Public Order argument

One of the most scathing criticisms of the “Broken Windows” thesis is the fact that there is little, if any substantial, empirical evidence to substantiate the correlation between the occurrence of serious crime and a disorderly society. The impetus given to the maintenance of public order is one which will yield results such as a decrease in crime rates in that particular society not because of the claimed co-relation, but as a result of increased surveillance and comprehensive policing.

Any policy followed by the state to curb crime by relying on the Broken Windows thesis makes a fundamental correlational fallacy, which attributes a cause-effect relationship between disorder and crime, without addressing the fundamental reason for the crime as well as the disorder. Any society, whose members have grave and severe social and economic disadvantages to overcome, such as large-scale poverty, is bound to witness both a substantial magnitude of disorder and a relatively higher crime rate. The same cannot be addressed or rectified by measures such as increased public order maintenance and adopting zero tolerance policies against minor misdemeanours, which might win the state political brownie points, but fails to identify the root cause of the problem which it is contrived to resolve.

The intimidation argument has been countered effectively by an analogy with the oppressive laws prevalent in various British colonies as well as in South Africa and in the United States. Even if a person does feel intimidated as a result of an Asian/ African-American man or woman walking on the road, or in the park, that will under no circumstance entitle the law to curtail the rights and freedoms of the Asian/ African-American man or woman. The homeless can, therefore, not be asked to “move on” just because they present a potential risk of adversely impacting public tranquillity and order. Laws which thus penalise people from offering panhandlers, beggars and the homeless food, warm clothes etc. as it increases their predilection to remain in public parks, streets etc. and create nuisance and public disorder are therefore, not only grossly unjust and illogical, but also completely unfounded in their rationale and the harm which they are trying to eradicate.

The Problem with Laws Criminalising Homelessness

Laws which seek to penalise the homeless essentially suffer from a problem of false causality. In their attempts to address the rampant increase in the number of homeless people in the said city or state, or even a country, they try to address the issue by a superficial solution of reprimanding those who are the biggest victims of the system.

The plight of being homeless occurs as a result of unemployment, inflation in housing prices, abusive relationships and other such causes. The people who live on the streets are not on the streets of their own volition, but as a result of circumstances most unfortunate, and as a last resort. Penalising homelessness, imprisoning people for sleeping and living on the streets is not a deterrent or a social action which is undertaken to prevent any discernible harm. It is declaring the actions of a particular social group, usually one which is disadvantaged or backward, as something which is reprehensible and needs to be regulated and curtailed. It is calling a state of life, the mire of poverty, a crime and the people stuck in such a mire criminal.

Laws penalising homelessness are a self-perpetuating vicious cycle of poverty for those who are found violating the same. A person finds himself/herself on the streets as a result of extremely dire and abject financial conditions. The person is then found to be violating the law against sleeping on the street, or for loitering in public, or any such law which is enacted to curb the so-called “menace” of the homeless. The Court orders the person to pay a hefty fine, and, as the person is unable to financially bear the burden of the same, sentences him/her to prison for a certain duration of time. But the misery doesn’t quite end there. After the prison sentence, the person now suffers from the ignominy of having a criminal record, which means that any prospects of procuring employment just disappeared into thin air. And after finding himself/herself back on the streets, it is only a matter of time before he/she is again picked up for a misdemeanour under the law curtailing homelessness. It is a vortex which has completely engulfed his/her right to live with dignity, his freedom to move, to eat, sleep and live a normal life.

The state which should have addressed the problems of unemployment, mental health issues among the youth and substance abuse (which are the three primary causes of homelessness) by ensuring that there are an adequate number of homeless shelters established, rehabilitation and recuperation facilities made available to those suffering from substance abuse, and mental health centres set up, instead focuses on criminalising a class of people who are the victims of its callous and negligent attitude towards its citizens. The government of Hungary has defended itself by stating that the measure is to ensure that the homeless of the country are safe from the extreme cold which the country experiences in the winter, and to house them in homeless shelters, but statistics reveal that such shelters are inadequate to house the 30,000 homeless people, who, at this point of time, have no place to go and no one to seek.

The problem of criminalising the homeless is one which is not completely alien to the Indian legal context. In India, the homeless are often booked by the police under provisions of anti-begging legislations, such as the Bombay Prevention of Beggary Act, 1959. And even though the Delhi High Court in the case of Harsh Mander v. Union of India held that such legislations were violative of the fundamental rights of the most vulnerable members of our society, it still called for the state to come up with a legislation which would tackle the problem of forced begging. Despite the judgement of the Supreme Court, it is still observed that convictions under such laws do continue, and as many as 22 states in the country have similar legislations modelled on the Bombay Prevention of Beggary Act. As a result of these legislations, beggars, vagrants and the homeless are booked for offences under such legislaitons, kept in decrepit and dilapidated shelters and are criminalised for their abject and unfortunate condition of poverty and destitution.

It is high time that such laws are done away with, as it not only infringes upon the right of an individual not to be criminalised, but also violates his/her alienable rights of movement, of a life with dignity, of free speech and expression, of sleep and of many other civil liberties which these laws put a shackle on.

Sumit is a 2nd year BA LLB (Hons.) student at National Law School of India University, Bengaluru.

Image Source: Gary Knight/Flickr