By
Nishtha Sinha, IV year of B.B.A.,LL.B. from Symbiosis Law School ,Hyderabad
Introduction
When we go to any place around the world, we will predominantly find the street vendors selling their goods. The most important thing is to understand who can be considered as street vendors and what are his rights. A street vendor is a person who sells his goods to the public without a permanent stall or structure in a temporary or mobile stall. These vendors can be stationary who possess temporary stalls or they can be mobile who travel from place to place to sell their products on cycles or their carts or even on their heads. Various terms are used to describe them, like hawker, pheriwala, rehri-patri walla, footpath dukandars, sidewalk traders, and many more[i].
History and development of their rights in India
As the street vendors mostly sell their goods on-road and due to this reason, they have suffered hardships from the law enforcement agencies like police officers. By the middle of 1990s, the street vendors faced several attacks from them. Many NGOs came forward against this and also realised that there is a need for organisation and also ensuring protection to these vendors. As a result, in the year 1998 NASVI that is National Alliance of Street Vendors of India which was later known as National Association of Street Vendors of India was established for the rights of the street vendors in India. Several agencies helped in the establishment of NASVI like ATITHI, an NGO working for the empowerment of women in rural Bihar, SEWA that is the Self- Employed Women's Association and Nidan, which is a street vendor advocacy group which was established earlier for the protection of the street vendors.
Finally, in the year 2004, the cabinet of India adopted a National Policy on the Street Vendors. It was for the first time in the history of India that in 2009, the street vendors were recognised as the contributors to the Indian economy that is to the GDP of the country. The ideas were made in the form of the document by the NASVI and its allies so that a framework is made for the street vendors who are considered as a sizable portion of the total population of the poor. To build pressure on the Central Government millions of street vendors marched and also went on a strike and also hundreds and thousands of letters were sent to local lawmakers. It was in the year 2013 when the results of the efforts taken came when in September 2013, the Indian Parliament passed the Street Vendors Act.
Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act,2014
The Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014[ii] is the act which governs Street Vendors in India. the important features of this act are:
· A Town Vending Committee will be established which will be responsible for conducting surveys of all the street vendors which are located under its jurisdiction. The survey must be conducted every five years. No street vendor will be evicted until this survey has taken place and also till a certificate of vending has been issued.
· All the street vendors should be placed in a designated and specified vending zone. When all the vendors cannot be accommodated or placed in the same vending zone then the places will be based on the result of the drawing of lots. And the vendors who failed to get spaces in that vending zone should be compulsorily accommodated in the adjoining vending zones.
· The act specifies the age limit of the street vendors and thus states that the street vendors should be above fourteen years of age and only they will be granted a certificate of vending. The certificate can be granted on the condition that the vendor gives an undertaking that he will carry on with the business by himself or through his family members. He also has to declare that he, However, such certificates will be granted only if the person gives an undertaking that he has no other means of livelihood and also he will not transfer his certificate to any other. But the certificate can be transferred to the other family members if the vendor dies or suffers from permanent disability.
· The certificate will be immediately cancelled if the vendor breaches the conditions which were mentioned before the issuance of the certificate.
· It has also been mentioned that no vendor can be permitted to carry out vending activities in the no-vending zones.
· If an area is a specified area as a no-vending zone, then vendors will be relocated or transferred to another area. The street vendor must be given a notice before 30 days for the purpose of relocation. If the vendor fails to vacate such no-vending space after a notice has been given, then he will be liable for a punishment which is to pay a penalty which may extend up to two hundred fifty rupees per day.
· It is compulsory for the local authority that it must physically remove the vendor and also make seizure of the goods of such vendors who are in the no-vending zones.
· Under this act there will be an establishment of a dispute resolution body which consists of a Chairperson who has been a civil judge or a judicial magistrate and also two other professionals who are prescribed and appointed by the appropriate government.
· There will be the establishment of a Town Vending Committee in each zone or ward of the local authority.
· A street vendor who professes the profession of vending without a certificate of vending or a vendor who breaches the conditions laid down in the certificate of vending will be punished with a penalty of an amount which may extend up to two thousand rupees.
Legal Provisions under Constitution related to the Street Vendors
The Constitution of India also contains provisions for the protection of street vendors in India. Article 14 of the Constitution deals with equality before the law and thus even the vendors possess the right just like any other persons and they will be protected by the law of the country without any discrimination. Article 19(1)(g) of the Indian Constitution gives to every country to practise any profession or trade or business. So even the street vendors have this fundamental right to carry on trade or business of their own choice. Under Article 21 of the constitution. The right to life which has been mentioned under Article 21 also includes the right and protection of means of livelihood. When there is a forcible eviction of hawkers without prior notice then is a breach of the right to livelihood and thus an infringement of Article 21 of the Constitution [iii].
Hawking Zone and Street Vendors
For understanding the rights of the street vendors, we need to understand and mark the hawking zone. Hawking Zones causes serious obstruction to the public and it also is the reason for various traffic problems. It is the state and municipality which has the right to designate and allocate the places from where street trading can be done. The street vendor doesn't have the right to decide if the place is a place of trade or not[iv].In the case of Bombay Hawker Union vs. Bombay Municipal Corporation[v], the Court held that The Non-Hawking Zones is fixed by the Municipal Commissioner and he can consult the other members of the Municipal Corporation. He should exercise his discretion reasonably and also in the interest of the public. If there are areas in which the vendor sells its goods and it is other than the Non-Hawking Zones, then licenses should be granted to the hawkers to do their business on payment of the prescribed fee. It is the right of the Commissioner to extend the limits of the Non-Hawking Zones when doing so is in the interests of public health, sanitation, safety, public convenience. Hawking licenses cannot be refused to the street vendors in Hawking Zones only with the exception that appropriate reasons are given for the same. Hawking is prohibited in Hospitals or other places where the security measures demand so and the places where the roads are not wide enough to manage the traffic then it cannot be considered as a Hawking Zone.
In the case of Maharashtra Ekta Hawkers Union vs. Municipal Corporation, Greater[vi] the Court held that the places which are within 100 meters from any place of worship, a holy shrine, educational institution and general hospital should be considered as a non-hawking zone.
Licensing of Street Vendors
The need for licencing of the street vendors was felt when the illegitimate business started to grow all over the country at the time. This licensing will also protect the hawkers from harassment of law enforcement agencies especially police and other influential persons. With the help of this licence, the business of the street vendor is made legal and it also helps the authorities regulating the street vendors to keep a record of the street vendors. It also helps in the allocation of space in the pavement to do business. It will also help in tax collection every month. The licence can only be issued if survey and registration fees have been notified[vii].
Judicial Pronouncements on the Rights of the Street Vendors
In the case of South Calcutta Hawkers, Association vs. Govt. of West Bengal [viii], the court held that Street Trading is a fundamental right which is available to the street vendors under Article 19 (g) of the Constitution of India but this right is subjected to Art. 19(6) of the Constitution. So, it is within the powers of the state to make any law which imposes reasonable restrictions on the interest of the general public on this fundamental right. The court also observed in this case that proper regulation of the vending rights is necessary otherwise the purpose which roads which are for the proper movement of the traffic would be defeated.
In the case of Olga Tellis & Ors vs. Bombay Municipal Council[ix], the court held that a person cannot survive without any means of livelihood. If this right of livelihood is not treated as a fundamental right then it would lead to deprivation of the right to life. But the performance of this right should be done in a way which is fair and reasonable. So, before the eviction of the hawkers if a notice is served then it would not lead to infringement of the rights of the street vendors.
The Hon’ble Supreme Court of India in Maharashtra Ekta Hawkers Union and another vs. Municipal Corporation, Greater Mumbai[x] also talked about the rights of the street vendors in India. The court stated that the street vendors should be given the right to operate across the country till the registration and also the creation of both vending zones and also hawking zones following the 2009 policy. Once that is completed then the street vendors should act under the directions and orders of the town vending committee. This judgement is considered as a ray of hope for the street vendors who have realised that they are important and also their rights are important.
The Supreme Court in the case of Sodan Singh vs. NDMC[xi]has significantly contributed to the aspect of the jurisprudence of street vendors’ rights in India. This case again interpreted the rights of the street vendor which has been mentioned under article 19 (1)(g) but in this case, the court took a broad view of the same. It was stated by the court that there is a right which has been given to the hawkers and the street vendors to carry the business on the streets but the same should be subjected to limitations by the municipal authorities. The exercise of the rights should not create nuisance or inconvenience to the public. The court also stressed the identification of the hawking zone. The other related issues were related to the number of days and also the time of operation of the street vendors.
[xi]Sodan Singh vs. NDMC.