Law Analysis
Sheltering the shelterless
Taslima Yasmin
Very recently, Cabinet has approved the Vagrant and Shelterless People (Rehabilitation) Act 2010, in an effort to make the existing Bengal Vagrancy Act of 1943 time-befitting. It promises to provide rehabilitation of the vagrants and shelterless people as opposed to the scheme of the old 1943 law. Unfortunately, however, the newly approved law, although presented as an instrument for 'rehabilitation,' largely continues the draconian regime put in place for 'beggars' under the outmoded colonial-era law. This is an attempt to analyze the shortcomings that remain in the new draft Act of 2010, addressing the legality of the entire scheme of the Act.
The primary criticism of the definition of vagrant person in the 1943 Act is its subjectivity and arbitrariness. The new draft contains the same definition according to which, as long as the authorised police think that there is a 'likelihood' of a person being reliant on alms, he or she may be treated as a vagrant. The new definition not only reiterates what was contained in the old statute, but goes a step further and adds a new category of vagrants which is, to say the least, equally arbitrary. The new category that “a person who is wandering about without any specific reason and creating public nuisance”, is vague in so much as the statute is silent about definition of 'public nuisance' and thus it presents the law enforcement agencies with a free hand to decide whether a person is creating public nuisance or not, and thus giving them an opportunity to pick and chose the persons they wish to put in this new category.
The title of the draft Act, appears to be providing a mechanism for rehabilitation of “vagrant and shelter less” people. However, if the whole scheme of the Act is considered, it appears that it is inconsistent with any such promise of rehabilitation. The Act has in several sections used words like 'caught' (Dhrito), 'detained' (Atok) and 'released' (mukti) in reference to vagrants, which is incompatible with the idea that through this Act, the State shall rehabilitate (punorbashon) the vagrants who by definition have no means of sustaining themselves. The Act places the prima facie burden of proof on the vagrant person himself to show that he/she is not a vagrant. Moreover, a person may be legally detained for up to 15 days in a “reception center” even before evidence is collected regarding his/her status as vagrant.
The Act does not clearly define the term 'rehabilitation' nor does it provide for the measures to be taken by Government for a meaningful rehabilitation of any 'vagrant' person. The Act, in section 18, merely states the provisions for employment/self-employment of such persons, but there is no clear guideline on the adoption or operation of any such employment generation measures. On the other hand, the proposed rehabilitation measures do not appear to address issues such as access to housing, education or food. Additionally if 'employment' is the only focus of rehabilitation, then the scheme of the Act clearly fails to address those persons who are unable to work due to physical or intellectual disabilities, age-related infirmities or other chronic conditions.
Section 9 (5) of the draft Act provides that if any vagrant woman detained in a detention center has an accompanying child below 7 years old, such a child would be allowed to be with the mother until reaching the age of 7 after which s/he will be separated from the mother and be admitted in an orphanage. Such a provision for separating a child as young as 7 from its mother is breach of the fundamental rights to family life of both the mother and the child. Additionally, the mandatory requirement that a child be transferred to an orphanage removes the scope for the concerned authority to exercise any discretion, and to make decisions based on a consideration of the best interests or welfare of the child. Furthermore, the Act is silent about the treatment of any vagrant woman found with a child over 7 years at the time of her detention.
Although the new law incorporates a definition of a 'child' as a person aged under 18 (rather than 14 as previously), it has surprisingly omitted the reference to 'child vagrant' in relevant provisions. For instance, section 9 of the Act of 1943 had provided that any authority issuing any order to send a person to a vagrancy home is required to ensure that children, among other classes, are segregated from other vagrants. In contrast, the new section 11 ( similar in terms to section 9 of the 1943 Act), does not include any such provision nor does it specify that there should be special consideration given to whether custodial orders should be made with respect to placing 'children' in vagrancy homes at all. Moreover, in almost all of the substantive provisions of the new Act there is no effort to address vagrant children or to identify any particular treatment that they would need at the vagrancy centres.
The approach taken in the new draft Act does not move from the earlier position of criminalizing begging instead of improving the plight of the beggars. The government has a constitutional responsibility to respect the fundamental human rights and freedoms of every person, guarantee the dignity and worth of every human person and improve the material standard of living of the people. By enacting a law cloaked as 'rehabilitation' which in reality is no more than another means of bringing about the detention and punishment of persons living in poverty, the government cannot avoid its responsibilities towards vagrants and homeless people whose survival is solely dependent upon begging and who do not have the means to fulfill even the basic necessities of life.
Any measure addressing the situation of so-called “vagrants” must realize that for a citizen of a democratic country, being poor, disabled, or disadvantaged and having no other means of survival cannot and should not be a premise for human rights deprivations.
The writer teaches law at BRAC University. She is thankful to Ms Sara Hossain and Hezzy Smith for their inputs in the article.
