Hawking/Vending Is A Fundamental Right Guaranted Under Article 19(1)(G) & 21 Of The Constitution Of India

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By – A. Romen Kumar Singh, IPS (Retd.)

“The focus of the Constitution is on man, the small man, the crushed man and so law too must zero-in the human condition with its firm foothold on the Paramount Parchment of the nation”

-V.R.KRISHNAIYER.

A street vendor/hawker is a person who offers goods for sale to the public at large without having a permanent structure/place for his activities. Some street vendors/hawkers are stationary in the sense that they occupy space on the pavements or other public/private places while others are mobile in the sense that they move from place to place carrying their wares on push carts or in baskets on their heads.

FACTORS RESPONSIBLE FOR INCRREASE OF HAWKERS/VENDORS.

In last four decades, there has been manifold increase in the number of street vendors/hawkers in all major cities in the country including Manipur. One of the many factors responsible for this phenomena is unabated growth of population without corresponding increase in employment opportunities. The other factor is migration of rural population to the urban areas. A large section of the rural population has been forced to leave their habitat because of massive acquisition of land and substantial reduction in the number of cottage industries, which offered source of livelihood to any people in the rural areas, and even those living in the peripheries of the urban areas. In recent past, many lakh youngsters have moved from the rural areas to the cities with the hope of getting permanent source of livelihood but a substantial number of them have become street vendors/hawkers because their expectations have been belied. One reason which has contributed to the scenario is that unlike other sections of the urban population, they neither have the capacity and strength to demand that the Government should create jobs for them nor do they engage in begging or extortion. They try to live with dignity and self-respect by doing the work as street vendors/hawkers. The situation in the State of Manipur is worse in the sense that substantial numbers of street vendors are women who are selling vegetables, fish and other essential commodities.

3. The issue of hawking/vending has been recently settled by the Supreme Court in Maharashtra Ekta Hawkers Union and Municipal Corporation, Greater Mumbai, (2014) 1 SCC 490 which is highlighted as below:-

IMPORTANCE OF STREET VENDORS.

Para.3 – The importance of street vendors and hawkers can be measured from the fact that millions of urban poor across the country procure their basic necessities mainly from street vendors/hawkers because the goods viz, cloths, hosiery items, plastic wares, household items, food items etc. sold on payments or through push carts etc. are cheap. The lower income groups also spend a large proportion of their income in purchasing goods from street vendors/hawkers.

STREET VENDORS ARE HARASSED CONSTANTLY BY AUTHORITIES.

Para.4 – Unfortunately, the street vendors/hawkers have received raw treatment from the State apparatus before and even after Independence. They are a harassed lot and are constantly victimised by the officials of the local authorities, the police etc. Who regularly target them for extra income and treat them with extreme contempt. The goods and belongings of the street vendors/hawkers are thrown to the ground and destroyed at regular intervals if they are not able to meet the demands of the officials. Perhaps these minions in the administration have not understood the meaning of the term “dignity” enshrined in the Preamble of the Constitution.

IN LAST 28 YEARS, SUPREME COURT HAS STRUGGLED TO FIND A WORKABLE SOLUTION.

Para.5    The constant threat faced by the street vendors/hawkers of losing their source of livelihood has forced them to seek intervention of the Courts across the country from time to time. In last 28 years, this Court has struggled to find a workable solution of the problems of street vendors/hawkers on the one hand and other sections of society including the residents of the localities/places where street vendors/hawkers operate and delivered several judgments including

(i)    Bombay Hawkers’ Union V. Bombay Municipal Corporation, (1985) SCC 528.

(ii)    Sodan Singh V. New Delhi Municipal Committee, (989) 4 SCC 155.

(iii)    Maharashtra Ekta Hawkers Union V. Municipal Corporation, Greater Mumbai, (2004) 1 SCC 625.

(iv)    Maharashtra Ekta Hawker’s Union V. Municipal Corporation, Greater Mumbai, (2009) 17 SCC 151.

(v)    Maharashtra Ekta Hawkers Union V. Municipal Corporation, Greater, Mumbai, (2009) 17 SCC 231.

(this order was passed on 30-07-2004 but was printed in the journal only is 2009) and

Gainda Ram V. MCD, (2010) 10 SCC 715 but the situation has not changed in last four decades. Rather, the problem has aggravated because of lackadaisical attitude of the administration at various levels and the legislative instruments made many decades ago have become totally ineffective.

DIRECTIONS OF THE SUPREME COURT WHEN HAWKING RIGHTS BEING IN CONFLICT WITH COMMUTERS RIGHT OF FREE MOVEMENT.

In Gainda Ram V. MCD, (2010) 10 SCC 715 the Supreme Court held that the rights under Article 19(1) (g) are very broad. The hawkers and squatters have a fundamental right to carry on business on the public streets, but the same should be regulated as they are subject to reasonable restrictions under Article 19(6). The right of a hawker to transact business, while going from place to place is recognised in India for a long period. The right of hawking for carrying on business on the streets can not be denied if they are properly regulated. The streets in India are vested in the municipality and they have to be used by the municipalities as trustees.

The Apex Court further held that the hawkers’ and squatters’ or vendors’ right to carry on hawking under Article 19(1)(g) which conflicts with the right of the commuters to move freely and use the roads without any impediment under Article 19(1)(d) must be harmonised and regulated by subjecting them to reasonable restrictions only under a law.

HAWKING AND STREET VENDING SHOULD BE REGULATED BY LAW.

The Apex Court further held that nothing short of law can impose reasonable restrictions on a citizen’s fundamental right to carry on hawking under Article 19(1)(g) of the Constitution. Hawking and street vending should be regulated by law. Such a law is imminently necessary in public interest. Attempt made by NDMC (New Delhi Municipal Corporation) and MCD (Municipal Corporation of Delhi) to regulate this right by framing schemes which are not statutory in nature is not exactly within the contemplational provisions.

SUPREME COURT DIRECTED APPROPRIATE GOVERNMENT TO ENACT LAW ON OR BEFORE 30-06-2011.

Para.20 of (2014) 1 SCC 490.

In Gainda Ram case, (2010) 10 SCC 715 at para.8, this Court had directed that appropriate Government should enact a law on or before 30-06-2011. Once the Street Vendors (Protection of livelihood and regulation of street vending) Bill, 2012 becomes law, the livelihood of millions would be saved and they will get protection against constant harassment and victimisation which has been an order of the day. However, till the needful is done, it will be apposite for the Court to step in and direct that the 2009 Policy should be implemented throughout the country.

The Supreme Court at para.21 directed as below:-

21. – For facilitating implementation of the 2009 policy, we issue the following directions:

21.1.    Within one month from the receipt of the copy of the order, the Chief Secretaries of the State Governments and Administrators of the Union Territories shall issue necessary instructions/directions to the department(s) concerned to ensure that the TOWN VENDING COMMITTEE is constituted at city/town level in accordance with the provisions contained in the 2009 Policy. For the cities and towns having large number municipal areas, more than one Town Vending Committee may be constituted.

21.2     Each Town Vending Committee shall consist of representatives of various organisations and street vendors/hawkers. 30% of the representatives from the category of street vendors/hawkers shall be women.

21.3.    The representatives of various organisations and street vendors/hawkers shall be chosen by the Town Vending Committee by adopting a fair and transparent mechanism.

21.4.    The task of constituting the Town Vending Committee shall be completed within two months of the issue of instructions by the Chief Secretaries of the State and the Administrators of the Union Territories.

21.5.    The Town Vending Committee shall function strictly in accordance with the 2009 Policy and the decision taken by it shall be notified in the print and electronic media within next one week.

21.6.    The Town Vending Committee shall be free to divide the municipal area of vending/hawking zones and sub-zones and for this purpose they may take assistance of experts in the field. While undertaking the exercise, the Town Vending Committee constituted for the cities of Delhi and Mumbai shall take into consideration the work already undertaken by the Municipal authorities in furtherance of the directions given by this Court. The municipal authorities shall also take action in terms of paras.4.2.(b) and (c).

21.7.    All street vendors/hawkers shall be registered in accordance with para.4.5.4 of 2009 Policy. Once registered, the street Vendor/hawker, shall be entitled to operate in the area specified by the Town Vending Committee.

21.8.    The process of registration must be completed by the municipal authorities across the country within four months of the receipt of the direction by the Chief Secretaries of the States and Administrators of the Union Territories.

21.9.    The State Government/Administration of the Union Territories and municipal and local authorities shall take all steps necessary for achieving the objectives set out in the 2009 policy.

21.10    The Town Vending Committee shall meet every month and ensure implementation of the relevant provisions of the 2009 policy and, in particular, paras 4.5(1)(b) and (c).

4.5(1)(b) – TVC should ensure that the provisions of a space for vendors’ markets are pragmatic, consistent with formation of natural markets, sufficient for existing demand for the street vendors’ goods and services as well as likely increase in accordance with anticipated population growth.

4.5.(1)(c) – TVC should monitor the provision of civic facilities and their functioning in vending/ zones and vendors’ markets and bring short comings, if any to the notice of the authorities concerned of the urban local body. TVC should also promote the organisation of weekly markets, festival bazaars, night bazaars, vending festivals on important holidays, etc. As well as take up necessary improvement of infrastructure facilities and municipal services with the urban local body concerned.

21.11.    Physically challenged who were allowed to operate PCOs in terms of the judgment reported in Maharastra Ekta hawkers Union V. Municipal Corpn., Greater Mumbai, (2009) 1 SCC 231 shall be allowed to continue to run their stalls and sell other goods because running of PCOs is no longer viable. Those who were allowed to run Aarey/Sarita shall be allowed to continue to operate their stalls.

21.12.    The State Governments, the Administration of the Union Terriories and municipal authorities shall be free to amend the legislative provisions under/or delegated legislation to bring them in tune with the 2009 policy. If there remains any conflict between the 2009 Policy and the municipal laws, in so far as the relate to street vendors/hawkers, then the 2009 Policy shall prevail.

21.13.    Henceforth, the parties shall be free to approach the jurisdictional High Courts for redressal of their grievance and the direction, if any, given by this Court in the earlier judgments/orders shall not impede disposal of the cases which may be filed by the aggrieved parties.

21.14.    The Chief Justices of the High Courts are requested to nominate a Bench to deal with the cases filed for implementation of the 2009 Policy and disputes arising out of its implementation. The Bench concerned shall regularly monitor implementation of the 2009 Policy and the law which may be enacted by Parliament.

21.15.    All the existing street vendors/hawkers operating across the country shall be allowed to operate till the exercise of registration and creation of vending/hawking zones is completed in terms of the 2009 Policy. Once that exercise is completed, they shall be entitled to operate only in accordance with the orders/directions of the Town Vending Committee concerned.

21.16.    The provisions of the 2009 Policy and the directions contained herein above shall apply to all the municipal areas in the country.

21.17.    The aforesaid directions shall remain operative till the appropriate legislation is enacted by Parliament or any other competent legislature and is brought into force.

Note:- The provisions of the 2009 Policy are not reflected in this Article for want of space.

CONCLUSION

From the above directions and commands of the Supreme Court it is now clear without niggling of doubt that the fundamental right of the hawkers, just because they are poor and unorganised, can not be left in a State of limbo nor can it be left to be decided by the varying standards of a scheme which changes from time to time under the orders of the Court. Now it is the time to comply with the commands of the Supreme Court as highlighted above.

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