Author: Vrinda Chaturvedi is a third-year student at Hidayatullah National Law University, Raipur.
The article provides a comprehensive review of the challenges faced by hawkers in their fight for recognition and protection of their rights. It also traces the development of jurisprudence around Hawkers’ and Vendors’ Rights and provides a concerted analysis of judgements that have shaped the evolution of the same. A cursory insight into the international framework supporting such incorporation has also been provided in order to make a case for an urgent inclusion of a labour-centric and human rights-based approach when viewing the cause of Hawkers and vendors in India.
As the Jahangirpuri row melted and merged into the Shaheen Bagh distress, the rights of hawkers and vendors and the distinction between exercising the right to livelihood and illegal encroachment in public places becomes exasperatingly blurred. Governments and civic bodies continue to frame and formulate “rehabilitation and livelihood improvement” policies. However, the increasing number of petitions revolving around this occurrence and the diverse legal complexities they come with reflect something contrary to “improvement”. They highlight a potential space for exploitation and abuse of state power at the hands of those considered guardians and protectors of our rights.
The Supreme Court recently reprimanded CPI (M) over its Public Interest Litigation petition along with the Delhi Hawkers’ Union, alleging the “illegal and inhumane action” underlying the anti-encroachment drives undertaken by the South Delhi Municipal Corporation (SDMC). The Apex court said that it was no place for presenting such allegations especially forwarded by a political party and that the Court cannot afford to meddle with all demolitions everywhere. Whether this is just a discontentment with the involvement of a political party and the lack of any violation of fundamental rights of the primary petitioner- CPI(M), or would serve as fodder to the prevailing judicial apathy around such issues wherein the Delhi High Court, in a case raising concern over unregulated vending in Connaught Place commented that they “cannot let the city go to the dogs.”[i]
In Sodan Singh vs New Delhi Municipal Committee (1989), the SC opined that “refusal by the municipal authorities to permit them to continue with their trade is violative of their fundamental right to carry on trade or business guaranteed under Article 19(1)(g) of the Constitution; and (ii) the petitioners are poor people and depend on their business for their livelihood and if they are not allowed to occupy some specific places demarcated on the pavements permanently for conducting their business they may starve which will lead to violation of their fundamental right under Article 21 of the Constitution.”
This was a reaffirmation of what had been held in the landmark judgment Olga Tellis vs Bombay Municipal Corporation that expanded the right to life to include second-generation rights such as basic housing and dwelling facilities. It was also one of the first cases where the Apex court, which generally desists from interfering in policy matters, did so under the guise of protecting and enforcing a fundamental right. However, as we head towards a crossroad with the bulldozer becoming synonymous with demolition descending upon slums and hawking locations, we must watch out for a repeat performance of the Narmada Bachao Andolan vs Union of India, wherein the Court ended up approving one of the largest court-sanctioned evictions in the world inviting criticisms from the world over regarding the lack of well-executed social welfare policies thus, making lives insufferable for the underprivileged.
In Gainda Ram vs MCD, the Supreme Court cited the National Policy on Urban Street Vendors formulated by the Government of India in 2004. It set the upper limit of vending sites not to exceed 2.5% of the total population of award/zone but whether such unrealistic rules would still seem reasonable when the population of those in urban poverty increases to 575 million by 2030 is another point that must be weighed in during this debate. While this case was a commendable attempt to reconcile the need for regulation by civic authorities with the right to work and dignified livelihood, its operability was and is hazy.
The Civic bodies engaged in the Jahangirpuri demolition claim that no houses or permanent structures had been demolished and only temporary projections were run over by exercising authority under Section 322 of The Delhi Municipal Corporation Act, which requires no prior notice to be given to the owners of such settlements or dwellings.
However, such unnoticed and sudden demolition still contravenes policies and acts like The Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014 which mentions the need for a 30 days’ notice for any eviction of such hawking settlements and the later incorporated provision 343 of the DMC Act itself that states the requirement of a notice given 5 to 15 days prior to the commencement of such demolition. This need for a notice also arises because the hawkers or vendors would be deemed “encroachers” of the right of way of their neighbours. This further makes the authorities duty-bound to inform the perpetrators of the move for such eviction or demolition. Moreover, applying or deliberation upon these acts would bring up a tangential issue: licensing of such vendors/ hawkers as stated under the Street Vendors Act, 2014 and the consequent viability of such exercise given the extremely fleeting and temporary nature of this business and lifestyle.
Beyond domestic statutes and legislations, India is a signatory to multiple international covenants, including International Covenant on Civil and Political Rights, that protect the right to street vending stemming from an extension of an individual’s social rights such as the right to public space. Several rules and comments forwarded by the United Nations and its bodies have also emphasized the need for social security in housing and protection from a constant fear of eviction and demolition. The United Nations also commented on the Indian situation by questioning the lack of a national housing policy that facilitates all citizens alike. The glaring lack of an inclusive urban housing scenario only widens the chasm between legislative reform and judicial redressal. The contradistinction between hawking and street vending as an informal activity and as an endangered constitutional right must not wade into quicksand as the need for a comprehensive framework reforming this situation becomes inevitable.
Whether hawking or temporary vendor-ship can be embraced within the meaning of the right to livelihood or whether a demolition or supposed demolition (as alleged in Shaheen Bagh) would reflect enough upon the ulterior motives of state or civic authorities to bust a fist into the law would be the Courts’ sheep to graze but what remains constant and clear as day is that the condition of such slum dwellers or hawkers only worsens with every detrimental step and each condescending remark made as petitions and policies increase. Judicial considerations continue to fade away due to the void of uniform and efficient legislation and enforcement regulating such conditions. We need a reform that does not appear to be scathing to what seems to be a fundamental human right as we realize that the judgments penned in these cases would also rewrite how constitutional mechanisms tackle and enforce urban governance. Therefore, it is pertinent to establish and define the role of the governments and the judicial structures in affirming and attesting to the very real existence of such issues and to recognize their roles as social facilitators and catalysts serving to pull such groups up from the neglect of the law and not push it further into the dark abyss of unregulated and malfunctioning social spheres.
[i] Shalaka Chauhan and Aravind Unni, Its time to step up for street vendors’ rights’, IDRONLINE (May 10, 2022, 9:40 PM), https://idronline.org/article/livelihoods/its-time-to-step-up-for-street-vendors-rights/.
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