Factfile – Some selected statistics compiled by NASVI

Factfile

Contribution of Vendors in Selected Cities

Calculations based on: (a) Delhi Master Plan figure for 1981, extrapolated for 1991; (b) Study by Nidan in 1997; (c) T.S. Sanben and V.R. Rao, ‘The Urban Informal Sector in India – A Study of Govindpuri’ (Delhi), Jaishankar Memorial Centre, Fredrich Ebert Stiftung, New Delhi, 1993; (d) Extrapolated from study conducted by the Tata Institute of Social Sciences, Mumbai; (e) Hawker Sangram Committee, sample survey.

Average Earnings of Vendors

Ministry of Labour (Government of India).

National Classification of Occupation 1968 (431.10)

Hawker, peddler, street vendor, pheriwala sell arti- cles of daily utility and general merchandise such as vegetables, sweets, cloth, utensils and toys, on footpaths or by going from door to door. Purchases goods from wholesale market according to his needs and capital (money) available. Loads them in basket or on pushcart, wheel barrow or tricycle and moves in selected areas to effect sales. Announces loudly goods or articles on sale and their prices to attract customers. Attends to customers and effects sale by measuring, weighing or counting as necessary. May also display goods or articles of sale on footpath and effect sales. May purchase goods in lot, in auction or other sales. May prepare and sell his own products and may ope-rate means of conveyance. May work on salary or commission basis or both.

NSS Estimates

The 50th round of NSSO (1993-94) estimates the number of street vendors as proportion of population as follows:

Urban Area: street vendors constitute 0.89% of population.

Rural Area: street vendors constitute 0.27% of population.

Total number of street vendors (1991) = 3.6 million.

Genesis of Municipal Laws Regarding Vendors

Shopping and marketing in the traditional Indian sense have always been informal. Display of wares and social interaction are the hallmark of Indian markets as compared to the mechanized and sterilized concept of shopping in the modern market centres and super market structures. From ancient times, hawking and vending have been an integral part of Indian trade and commerce. However, as the British started gaining administrative control over India, they began introducing their own institutions and legal frameworks. For the hawkers, The Bombay Provincial Municipal Corporation Act (1949) and its adaptations for various Indian cities, The Bombay Police Act (1951) and its adaptations for various Indian cities, The Indian Railways Act (1819) are some major legislations which were formulated by the British and retained in essentially the same form by the Indian government. Unfortunately these laws, based on England’s experience in dealing with urban poor and migrants, were designed to facilitate control over Indian people, regulate the economy to suit their administrative skills and to enhance their sense of security.

The following sections from Halsbury’s Laws of England show how the laws passed in India were almost word for word based on English laws. Halsbury: Volume 16 Section 616. Metropolitan councils are empowered to deal with persons who erect or place any post, rail, fence, bar obstruction or impede the traffic for which it was formed or laid out, or who place any temporary obstruction such as goods, barrows, stalls etc in any street. Vol. 22 Section 185: A hawker is required to take out annual excise licence and any person who hawks without having or without immediately producing upon demand a current licence granted to him is liable to fine and imprisonment.

Volume 31 Section 1016: Every person who places hangs up or otherwise exposes to sale any goods, wares, merchandise, matter, or thing whatsoever that the same project into or over any footway, or beyond the line of any house, shop or building at which the same are so exposed so as to obstruct or incommode the passage of any person over or along the footway is liable to a penalty not exceeding 40 shilling to imprisonment for a period not exceeding 14 days and may be arrested by any constable witnessing the offences.

The Bombay Municipal Corporation Act (1882)

Section 313: Except under and in conformity with the terms and provisions of a licence granted by the Commissioner in this behalf, no person shall hawk or expose for sale in any public place or in any public street any article whatsoever whether it be for human consumption or not.

Section 314 (b): The Commissioner may without notice, cause to be removed any article whatsoever hawked or exposed for sale in any public place or in any public street.

Section 229: No person shall, except with the permission of the Commissioner under section 227 or 234, erect or set up any wall, fence, rail, post, step, booth or other structure whether fixed or movable and whether of a permanent or a temporary nature, or any fixture in or upon or over any open channel, drain, well, or tank in any street so as to form an obstruction to or an encroachment upon, or a projection over, or to occupy any portion of such street, channel, drain, well or tank.

(Source: Excerpts from Legal Status of Hawkers in India by Usha Jumani and Bharati Joshi.)

Control and Punishment: Most acts are aimed at controlling and punishing the street vendors. The acts are archaic and fail to meet the challenges posed by the new situation particularly relating to migration, unemployment, saturation of formal sector and so on. The following examples illustrate how control and punishment becomes all important while the objective was to regulate the vendors.

Patna – Section 527: The municipal law in Patna does not allow for the setting up of stalls, display of goods, or selling of articles by occupying public streets, without prior permission of the Chief Executive Officer (CEO). The permission of the Chief Executive Officer has to be in the form of licences, for a specific period of time (not exceeding one year), with a specific fee, also not providing for the construction of a permanent structure.

Police Act 34: The police have the authority to punish any person causing obstruction, annoyance, or inconvenience to passengers or residents. Exposing goods for sale comes within this purview. A person found guilty of these charges can be convicted and arrested without a warrant and a fine can also be imposed on him/her.

Calcutta – Under the Calcutta Municipal Corporation (CMC), the Municipal Commissioner has the autho-rity to search and seize any basket containing goods for sale in a park, or street. Such a person can be detained and the matter can be pursued as per procedures of the law. Soon after the infamous Operation Sunshine, during which 100,000 hawkers were evicted overnight, the state government passed an act which makes any form of encroachment on the pavements, especially street vending, a non-bailable offence and if convicted to carry a sentence of three months rigorous imprisonment and/or a fine of Rs 250. Bill No. 33 of 1977: The Calcutta Municipal Corporation (Second Amendment) Bill, 1997.

Bhubaneshwar – According to the Orissa Municipa-lity Act 1950, it is imperative for a person to obtain the permission of the municipality for the sale or exposition of goods, failing which the Executive Officer may expel him/her.

Section 295: No person can open a new private market unless he/she obtains a licence from the municipa-lity to do so. The municipality also reserves the right to suspend or cancel a licence if the prescribed conditions are not fulfilled.

Bangalore – Any encroachment by people involving selling of goods and vending can be removed by the police in order to maintain the uninterrupted flow of traffic. A person causing this kind of a disruption is liable to make a payment for the expenditure incurred in removing the encroachments. The municipal council is obligated to maintain a separate and suitable place for vending vegetables. However, there is no provision for a specific zone for hawkers and vendors.

Mumbai – The municipality law in Mumbai does not provide for the erection of any structure or stall on the streets which will obstruct the passage of the public, or impede the working of a drain or open channel. It is imperative for a person to procure a licence from the municipal commissioner to be able to hawk his/her wares in any public place. Failure of compliance will lead to the removal of any product being hawked on the streets, without prior notice.

Ahmedabad – The municipal law in Gujarat prohibits the hawking of goods without a licence. The Municipal Corporation is also empowered to remove any encroachments and obstruction made on the streets. The Bombay Police Act 1950 empowers the police to arrest hawkers for obstructing free flow of traffic under sections 102 and 107.

Supreme Court Orders:

Bombay Hawkers Union vs Bombay Municipal Corporation 1985: In this case the Supreme Court suggested that a scheme for regulating grant of licence to hawkers and creating hawking and no-hawking zones be worked out for which certain directions were given by the court.

(i) As far as possible there should be one hawking zone for every two contiguous municipal wards in greater Bombay. (ii) A no-hawking zone may be fixed by the Municipal Commissioner in his discretion in consultation with the Bombay Municipal Corporation. (iii) In areas other than no-hawking zone, licence should be granted to hawkers to conduct their business on payment of the prescribed fee. (iv) Hawking licence should not be refused in hawking zones except for a good reason. (v) In future, before making any alteration in the scheme, the Commissioner should take into confidence all public interest including that of the hawkers, the Commissioner of Police and representative associations of the public.

Sodhan Singh vs New Delhi Municipal Committee: Article 19(1)(g) Hawkers trading on pavements – fundamental right subject to reasonable restrictions under clause 19(6). MCD has full authority to permit hawkers and squatters on pavements where they consider it practical and convenient. Hawking may be prohibited near hospitals or where security measures so demand.

(i) So far as right of a hawker to transact business while going from place to place is concerned, it has been admittedly recognized for a long period. Of course, it is subject to proper regulation in the interest of general convenience of the public. The public streets by their nomenclature and definition are meant for the use of the general public: they are not laid to facilitate the carrying on of private business. This is one side of the picture. On the other hand, if properly regulated according to the exigency of the circumstances, the small traders on the sidewalks can considerably add to the comfort and convenience of general public by making available ordinary articles of everyday use at a comparatively cheaper price. An ordinary person, going home after a day’s work can pick up these articles without going out of his way to find a regular market. The right to carry on trade or business mentioned in Article 19(1)(g) of the Constitution, on street pavements, if properly regulated cannot be denied on the ground that the streets are meant exclusively for passing or repassing and for no other use.

Constitutional Provisions

Right to Trade: Article 19 (1) (g) gives the Indian citizen a fundamental right to practice any profession, or to carry on any occupation, trade or business. This right is limited only by the right of the state, i.e., the Indian government, to prescribe professional or technical qualifications for certain trades or professions, and right of the state to create monopolies in certain trade, business or industry in the interest of the general public. Otherwise a citizen’s right to carry on a trade or profession of his choice is absolute.

Equality Before Law: Article 14 of the Constitution states that the state shall not deny to any person equa-lity before the law or equal protection of the laws within the territory of India.

Social Justice: The preamble of the Indian Constitution states that India is a sovereign, socialist, secular democratic republic, and shall secure to its citizens justice, social, economic and political and equality of status and of opportunity.

Directive Principles: Article 38(1) directs the state to promote the welfare of the people by securing a social order in which justice – social, economic and political, shall inform all institutions of national life. The state is also directed by Article 38(2) to ‘minimize the inequalities in income status, facilities and opportunities.’ Article 39(a) directs the state to formulate policy to ensure that citizens, men and women equally, have the right to an adequate means of livelihood. It further provides that ownership and control of material resources of the community must be distributed to serve the common good, and that the operation of the economic system must not result in the concentration of wealth and means of production. Article 41 specifically provides for ‘right to work’ within the limits of the economic capacity of the state.