Law &. Practice

Legal Status of Street Vendors

Rani Advani

Street vendors, artisans, masons, construction workers are among the self employed people in India, As they belong to the informal or unorganised sector they enjoy little or no legal benefits. They also do not have access to finance as easily as organised industry.

additionally a number of laws are interpreted or applied in a manner that adversely affects their interests. Two propositions need elimination. Positive laws, benefits and schemes are not available to street vendors because they are unorganised or not recognised. Negatively, existing laws regulating trade and business, licensing of self employed, law and order, public nuisance, obstruction etc. are all applied to the detriment of street vendors and their interest and right to carry on trade and business peacefully.

Statutory Provisions Regarding Street Vendors in India

Under the Constitution

Article 14 of the Constitution states that the State shall not deny to any person equality before the law or equal protection of the laws within the territory of India.

Article 19(l)(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 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.

These fundamental rights granted in Article 14 and 19 are enforceable against the State by invoking the “writ jurisdiction” of the High Courts or Supreme Court of India under Articles 226 or 32 of the Constitution respectively.

Directive Principles of State Policy

Several Directive Principles of State Policy enunciated under Part IV of the Indian Constitution though not enforceable in the Courts, .are fundamental in the governance of the country. The Supreme Court while interpreting these Directive Principles and their enforceability has held that the Government must keep these principles in mind while formulating new socioeconomic legislation and must continuously strive to make these principles a reality.

Two State Municipal Laws

The Bombay Provincial Municipal Corporation (BPMC) Act 1949 and the Municipalities Act 1961 are two civil laws that directly affect the street-vendors in the region.

Under the BPMC Act, all public streets vest in the Municipal Corporation. The Municipal Commissioner, who is the Chief Executive Officer under this Act, has wide powers to regulate streets, remove encroachments and public nuisances as also to grant or refuse licences. But interestingly, there is no obligation to provide space for hawkers or vendors in each part of city or town, except the licensed and authorised market places.

The BMPC also prohibits placing stalls, benches, chairs etc. on a public place or causing any obstruction, without the written permission of the Commissioner (Sec. 230) The Commissioner has the power to forcibly remove any nuisance, obstruction or encroachment from a street or any public place, to the concerned person without giving any notice (Sec. 231).

The sale of virtually any commodity by hawking or street vending, whether food, fish, fowl, vegetable, fruits etc. requires a licence under the BPMC Act (See Sees 384, 385, Chapter XVIII and others). There is arbitrary refusal of licences; lack of proper and definite guidelines for issuing licences and at times non-issuance of licences for years together!

Under Criminal Laws

The Criminal Procedure Code 1908 and the Bombay Police Act 1951, both contain provisions for removal of obstruction on a street, or committing a nuisance or obstruction in general. There are penalties provided like a simple fine or even arrest and imprisonment for non-appearance before the Court, (See Sees 133 of the Code and Sees. 102, III of Bombay Police Act). Most prosecutions faced by SEWA women vendors have been under the Bombay Police Act.

Ground Realities and Operationalisation of these Laws

In reality hawkers and street vendors move from crisis to crisis in their daily lives as they face multifarious problems.

Municipal authorities and police, alternatively harass the hawkers/street vendors by forcible removal, demands of illegal gratification or bribes, destruction of their goods and wares, demands to be given free goods, verbal abuse and physical manhandling or beating.

The local authorities and law officers insist that no family member except the one in whose name the licence is issued will vend or carry on the hawking business. Mandatory attendance in Courts for alleged offences under the criminal law compels the hawker to lose the days earning.

Illiteracy of hawkers and vendors helps corrupt and baton-wielding law officers get away,

because it becomes difficult to identity them. In the same context, lack of access to legal services and courts, add to the problems of hawkers and vendors.

Judiciary to the rescue

Over a period of time, some judges at the High Court and the Supreme Court have realised the socioeconomic problems of street vendors and hawkers, and consequently given some relief in cases relating to them.

The courts have unanimously held that Art 19(l)(g) of the Constitution guarantees a fundamental right to hawk or vend, subject to reasonable restrictions imposed by the State (Art 19(6)). Equally the Courts have been unanimous inholding that public streets are meant for pedestrians, and hawking or street vending is a public nuisance and an encroachment So such must be removed.

Earlier the courts had in some cases held that tight to life included right to livelihood, but the Supreme Court later on held that Art. 19 (1) (g) and Art. 21 are quite independent of each other at least in the ‘street vendors cases.

But the courts have also, particularly in class actions held that alternative accommodation or pitches must be provided to the hawkers if they have been there for a sufficiently long period so as to establish their right to hawking.

Thus in K Sundarshan vs. Commissioner Corporation of Madras (AIR 1984 Mad 292), the High Court said that, “hawkers do not have a fundamental right to trade on public streets creating a nuisance by obstruction and encroachment on public streets. Municipal authorities are directed to provide alternative accommodation to hawkers, but public nuisance shall no longer be tolerated on the pretext that hawkers belong to the weaker class and fight for bare subsistence”.

A similar view was taken regarding public nuisance and encroachments and forcible eviction to free the streets in Francis Coralie Mullin (AIR 1981 SC 746) and Olga Tellis Vs. Bombay Municipal Corporation (AIR1986 BC 180). In these cases decided by the Supreme Court Sees. 230 and 231 referred to earlier, were being challenged. However these cases concerned pavement or street dwellers and not hawkers or vendors, though the issue of encroachment, public nuisance and procedure for removal were identical.

In subsequent cases like Sodhan Singh Vs. Delhi Municipal Corporation (AIR 1992 SC 1153) Gulamali Gulamnabi Shaikh vs. Municipal Commissioner (1986 GLH 616) the courts have directed the municipal authorities to frame schemes for vendors/hawkers, issue pitch licences to them and clearly earmark sites and places where they can carry on their business.

In Dalvadi Gatorbhai Vs. State (1995 (2) GLR 974), the Gujarat High Court very innovatively side-stepped the decisions of the Supreme Court in Olga Tellis, Francis Coralie and Sodhan Singh on the point of requirement of notice and opportunity of hearing to the hawkers before their forcible removal.

In Gatorbhai’s case the question was the validity of Sec. 185 of the Gujarat Municipalities Act 1961, which permitted the Chief Officer of the Municipality to remove encroachments and obstructions in public places, without giving notice or hearing die vendors/hawkers. The Gujarat High Court held that notice was mandatory. It distinguished the earlier Supreme Court decisions on the ground that in the present case no urgency for removal was made out, particularly when the vendors had been sitting there for a number of years. Further even though Sec. 185 did not provide for giving of notice,-such notice was required to be given to the affected persons on the grounds of natural justice.
Rani Advani, Legal Status of Street Vendors, in Labour File, New Delhi, November 1998. p. 37-39. [R.J31.4]