Two strong contenders for road space in our cities are hawkers and motor vehicles. Pedestrians just squeeze in. Civic authorities had been trying, hesitantly and vainly, to regulate street vending for decades. The Supreme Court, which grappled with this problem in the Capital as early as 1966, last week left it to the authorities to solve it through legislation. As for the middle-class Autopia, the government pretends to be asleep at the wheel. And it is difficult to wake it up.
Hawkers are said to be the second largest in the unorganised sector workforce. The total turnover of hawkers in Mumbai is estimated to be Rs 12,000 crore, Rs 10,000 crore in Delhi, and Rs 8,800 crore in Kolkata. The 10-million odd street vendors are not covered by any beneficial law and after six decades, a Bill is still waiting for Parliament’s assent to cover these traders who are at the bottom of society.
The latest judgment in the petition, Gainda Ram vs Municipal Corporation, conceded that the problem was not “judicially manageable”. Unemployment and migration to the cities, which catapult street vendors to a multi-crore trade, are best addressed by the executive in a “statutory framework”, it said.
The court regretted that there was no comprehensive law to regulate these small traders. Pointing out the growing division in society in the new economy, the judgment said: “While there is a burning problem of unemployment on the one hand, on the other hand, there is a section of our people that, having regard to its ever-increasing wealth and financial strength, is buying any number of cars, scooters and three wheelers. No restriction has apparently been imposed by any law on such purchase of motor vehicles. There is very little scope for expanding the narrowing road spaces in metropolitan cities. The roads are choked to the brim, posing great hazard to the interest of the general public.”
While one section of society is suffering from affluenza, the court pointed out that “most hawkers are very poor, a few of them may have a marginally better financial position. By and large, they constitute an unorganised poor sector in our society. Therefore, structured regulation and legislation are urgently necessary to control and regulate the fundamental right of these vendors and hawkers”.
In several judgments since the 1960s, the Supreme Court has conceded the fundamental right of the hawkers to ply their trade. It is derived from Article 19(1)(g) of the Constitution, namely, the right to carry on business, and Article 21, the right to livelihood. But the right is not absolute. It can be regulated by the government. This power to impose reasonable restrictions is granted under Article 19(6). Thus, though the hawkers have a fundamental right to pursue their trade, the government has the power and duty to ensure the safety of the public who uses the roads. Harmonising these two rights has been the challenge that the Supreme Court and some high courts undertook, with indifferent results.
The very first case dealt with by the Supreme Court in 1966, Pyare Lal vs New Delhi Municipal Committee, highlighted the dilemma. The sale of cooked food on public streets was creating unhygienic conditions and, therefore, the committee passed a resolution to stop such sale. The court ruled that though the vendors have a fundamental right to pursue their trade, they have no right to carry on street vending, particularly in a manner that creates unsanitary conditions in the neighbourhood.
However, the conflict of fundamental rights was not so easy to resolve and it has trudged through several decades of litigation between hawkers’ groups and civic authorities. Even the solutions suggested by the Constitution benches have not seen the end of the debate. There was a move to demarcate hawking and non-hawking zones in the city, assign hawking days and non-hawking days, and effect rotation of hawking areas and days. But none of these has seen a lasting solution.
Later, the court appointed committees to sort out the rights of the hawkers, like who should be given licences; where can they ply their trade; and matters of transfer and cancellation of licences. The committees produced formulas but they did not work, and instead created more headaches for the court. It was in this context that the new generation of judges, who inherited the problem from the last, left the issue to the lawmakers. It is comforting that the central government has, at last, drafted a law for the whole country called the Model Street Vendors (Protection of Livelihood and Regulation of Street Vending) Bill 2009. However, whether the hope and trust bestowed on the executive will be belied is another question, which, given the history of the case, has a bleak answer.
