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Analysis

Vagrancy Laws: A Remnant Of Colonial Past That Belongs In The Dustbin Of History

Pakistan-vagrancy-laws
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The recent arrest of two individuals in Lahore, one of them being a performing arts teacher, has elicited shock among the observant citizens. The reason for such a reaction is the “offence” they have been picked for. The action against them was based on section 55(1)(b) of Code of Criminal Procedure 1898 (CrPC) which allows the police the power to arrest without warrant any person who has no ostensible means of subsistence, or who cannot give a satisfactory account of himself. The keywords ‘ostensible means’ and ‘satisfactory account’ have been left undefined by the legislature which leaves it to the discretion of the police officer. This is what makes this law problematic as the discretion granted to the police provides no reasonable standard which would eliminate the arbitrariness in this provision. The police claim that this provision helps them in curbing crimes in their jurisdiction by locking up “potential” criminals. In order to better understand this provision as well as what is wrong with it, let’s break it down as follows.

This law is shockingly discriminatory in nature contrary to the fundamental right to non-discrimination. It also violates the rights to life and personal liberty which no one can be deprived of in an arbitrary manner.

As regards the discriminatory nature, it is obvious that application of this law would let a rich loiter, for instance, be considered to be taking a stroll in the street while a poor loiter in the same street might be arrested for being “potentially” of criminal character and capable of committing an offence. In other words, this law does not punish people for what they have done but for who they are, or for belonging to a particular socioeconomic class.

In the unprecedented time of Covid-19 that we are living in, the sudden surge in unemployment as well as the very high inflation means that lots of people have been forced out of work and on to the streets. This has dramatically increased the number of the homeless in Pakistan as several of them migrated from smaller to bigger cities in search of livelihood. Presence of such a law on the books adds insult to their injury and for this reason alone, it is reprehensible. It violates fundamental right to non-discrimination and equal protection of law. This provision of law and similar several other anti-poor laws belong to the pre-constitution colonial era. They have no place in the age of human rights.

India, which inherited a legal system including the criminal procedure identical to ours, got rid of this particular provision along with several others as early as 1973. Ironically, this was the same time when we introduced our present constitution which guarantees a multitude of fundamental rights – while letting such laws to remain in place that violate those very rights. Article 9 of our constitution guarantees right to life and liberty. No one can be deprived of one’s personal liberty arbitrarily. There have to be reasonable grounds for depriving anyone of this fundamental right.

Right to life in article 9 is not just limited to a person’s ability to breathe, extending way beyond that and encompassing his ability to live a secure life, free of any arbitrary act of infringement on his freedom and liberty. This right is bound to be violated when a poor person has to live in a constant fear that his inability to secure a shelter or a source of income might become a cause for him to be thrown behind bars, purely on the unfettered discretion of a police officer. Similarly, this also violates his right to dignity under Article 14 if he could be labelled as a suspect, liable to be put behind bars, only because a police officer is not satisfied by his account about himself because there’s no rational criteria for exercising such a power. This blatantly abusive power should be unthinkable in any present day democratic society. This also points to the fact that it is not really a democratic society we live in but a classist and elitist one.

Interestingly, this law, belonging to the wider category of vagrancy laws, is not a subcontinent only phenomenon but has remained part of legal systems of most of the colonized territories, especially the ones under the British rule. These territories included a number of post-colonial African states and a number of Australian jurisdictions. However, Australia has largely struck these laws out of its legal system. For instance, the Vagrancy Act 1902 of New South Wales was repealed in 1970. Moreover, even ECOWAS Court, ECOWAS being an economic community of 15 West African States, has declared in the case of Dorothy Njemanze and others, that “branding of women, for merely standing on streets, as prostitutes violates their dignity and right to freedom of liberty.” This is a very progressive judgment in a region, often referred to as “backward” by the modern world.

Some progressive judges in Pakistan tried to create a dent in this law but to no avail. Thirty years after the judgment in the case of Noor Begum v The State, little to nothing seems to have changed. It greatly narrowed down the scope of section 55(1)(b) by making a restrictive interpretation of the provision. It was held that in order for an action to be initiated under this provision, concealment of furnishing an explanation regarding one’s means of subsistence should be of a “permanent nature” and that too with an “object to commit an offence.” Only such a person could fall within the purview of this provision and be considered a vagabond or a loafer, while the rest of the people, considered to be ordinary citizens, would fall outside it.

Had this judgment been followed in its essence, it would have made it impossible for the police to apply the provision on anyone as it is not possible to determine the permanence of concealment of a person’s account just through momentary interrogation on the roadside. Nor it is possible to immediately determine that concealment is being done with an object to commit an offence which is the element granting the police the arbitrary power to violate the right to personal liberty. However, unfortunately, the police never transformed its practices according to this judgment and the result is continuing practice of violation of people’s rights. It could be argued that our police too continue to retain colonial characteristics. But that is for another occasion.

This leaves us with the only viable option, something that should have been done long ago and that is to strike out this remnant of our colonial past. The law should be repealed to leave no room for further abuse of the rights to non-discrimination, equal protection of law, and to life and liberty. This act of repealing the law would also be in line with Article 8 of the constitution which declares that a law would be void if it is found to be in contravention to the guaranteed fundamental rights. Truly, the vagrancy laws belong in the dustbin of history.

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