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Revisiting Anti Vagrancy Laws from a Post Colonial

Perspective

OCTOBER 10, 2018OCTOBER 11, 2018 ~ JILSBLOGNUJS

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.
st
(This was the essay that won second place in the 1 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 (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
(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
(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
st
his body be bloody.” Richard Burn, The History of the Poor Laws: With Observations, 122 (1
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
(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.

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One thought on “Revisiting Anti Vagrancy Laws from a Post

Colonial Perspective”

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