1. Street vending as a profession has been in existence in India, since time immortal(1). The street vendor means a person engaged in vending of articles, goods, wares, food items or merchandise of everyday use or offering services to the general public in a street, lane, side walk, foot path, pavement, public park or any other public place or private area from a temporary built up structure on by moving from place to place and includes hawker, peddler, squatter and all other synonymous terms which may be local or region, specific and the words “Street Vending” with their grammatical variations and cognate expressions, shall be constructed accordingly(2). The street vendors form an integral part of the urban economy.
2. Majority of the population depends on hawkers for affordable goods and services. Vending constitute a sizable proportion of the informal sector and creates opportunities for entrepreneurship and self-employment. For several decades post-independence vendors faced harassment, extortion and eviction at the hands of local authorities and found no respite from courts either(3).
3. The concept of street vendor is an existing right, existed from time immortal period. The right to life includes right to livelihood(4). Human rights may be regarded as a fundamental right or basic right which are essential for life as human being. Fundamental right which cannot be taken by any legislature or any of the Act of the Government. These rights can be described as common right since they are essential for men and women in the world(5).
4. The Human rights are not created by legislature and cannot be prohibited by legislation in the name of claiming road and street belonged to the state and therefore evict the street vendors. It is nothing but curtailing the existing right. The International Covenant on Civil and Political Right deals and confer with the right to life and liberty(6). The right to life, liberty and security of person have acquired the importance in various International Human Rights instruments(7). The universal declaration of Human rights provides that everyone has right to life and security of person(8). The Universal Declaration of Human Rights provides that all are equal before the law and entitled without any discrimination to equal protection of the law(9). The public, police and local authorities are always looking at the street vendors as trespassers and nuisance to the public. The street vending is a pre-existing right existing from time immemorial and still continuing one. The only duty cast upon the local authorities is that to balance the interstice in the urban street.
5. The state parties to the covenant to recognize the inherent dignity and equality that everyone enjoy his economic, social and cultural right, to promote universal respect for and observance of human rights and freedom and realizing that individual having duties to their individuals(10). The state parties to the covenant recognize the right to work, which includes the right to everyone to the opportunity to gain his living by work which he freely chooses or accepts and will take appropriate steps to safeguard their right(11). The covenant aptly recognize the right of street vendors for right to work of his choice with the opportunity to gain his living by work and compel the state to take steps to protect the same with help and guidance. The International Covenant on Economic, Social and Cultural Rights mandates the state to recognize the right of everyone to the enjoyment of highest attainable standard of physical and mental health(12). The Article 11(2)(13) mandate the state parties to recognize the fundamental right of everyone to be free from hunger, shall take individually and through international co-operation. The covenant further mandate the state parties to recognize the right of everyone to social security including social insurance(14). The Indian urban street vendors is also having the same charter of demand for social security and Insurance.
6. The International Labour Organization (ILO) issued guidelines for the formulation and implementation of National Policy in respect of right to work. The employment policy convention 1964(15), the declaration of Philadelphia obligating all the Nations of the World to achieve full employment and raising of living and to prevent unemployment. The street vendors being unorganized labour in India is entitled for the benefit of the above convention. The employment policy convention was evolved considering convention No.88(16), employment service conditions 1948, recommendation No.83: National guidance recommendation 1949 and recommendation No.117: Vocational Training Recommendation 1962.
7. The Constitution of India is also provides rights and scope in protecting the street vendors. The right of street vendor can be traced and vouched by analyzing the Constitutional provisions. The Indian Constitution is a social document, the rights can be perused depending upon the fundamental right and directive principles of state policy. The Indian society speaks for and against the street vendors. Ultimately, the right of street vendor depends up on the person’s individuality. Article 14 of the Constitution provides for equality before law. The state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. Protection of rights regarding freedom to practice any profession, or to carry on any occupation, trade or business is guaranteed under Article 19(1)(g) of the Constitution of India. The Supreme Court in Sodan Singh vs New Delhi municipal council(17), after thoroughly analyzing the constitutional provision, held that as for as right of a hawker transact business while going from place to place is concerned, it has been admittedly recognized for a long time period, subject to proper regulations in the interest of general convenience of the public including health and security consideration.
8. The Indian constitution provides and protect the street vendors under Article 21 of the Constitution. No person shall be deprived of his life and personal liberty except according to procedure established by law(18). The meaning and scope of the article is interpreted that right to life include right to shelter and livelihood(19). The right is guaranteed under Article 21. The executives evicted the street vendors taking the later part that by procedure established by law by enforcing the Local Authorities Act. The Hon’ble Supreme Court evicted the street vendor and declared that the street vendor have no fundamental right guaranteed under Article 19(1)(g) in Olga Tellis and others vs Bombay Municipal Corporation(20).
9. The Constitution imposes duty to secure a social order for the promotions of welfare of the people(21). The Hon’ble Supreme Court elucidates the duties of state in Air India Statutory Corporation vs United Labour Union(22) to secure social, economic and political justice. The pavement dwellers and street vendors are all living below the poverty line and struggling for day to day survival. The duties imposed under Article 38 on the state are squarely applicable to street vendors but the state and local authorities are not taking any effective steps even after the Supreme Court direction.
10. The Indian Constitution provides for right to work, to education and public assistance under Article 41. The constitution directs the state to securing right to work, to education and to public assistance in cases of unemployment. The street vendors opted to do street vending business for meagre income on his volition. The Article 21, 39 and 41 of the Constitution of jointly confers the right for livelihood. The Article 42 imposes duty on state for provision for just and human conditions of work and Maternity relief. The Supreme Court conjointly ready the Articles 39(e), 39(f), 41 and 42 in Bhandua Mukti Morcha vs Union of India(23) held that right to live with human dignity. The Judgment gives full ambit of life breadth. The street vendor living in pavement and doing street trading with family and children without any physical privacy to women with worst welfare and convenience. It is the duty of the state to provide human conditions. The state is directed to raise the level of nutrition and the standard of living and to improve public health(24). The street vendors occupy the major Indian population below the poverty line. The street vendors and his family members are lacking nutrition and with poor standard of life and condition. The right to avail such benefit from the state can be traced and vouched from the Constitution of India.
11. Further, the Constitution provides right to freedom of trade, commerce and intercourse within the territory of India under Article 301(25). The Union and the state both Government were empowered to control trade, commerce and intercourse throughout the territory of India shall be free. The street vendors being citizens of India, living below the poverty line and the state is under a duty to protect them by legislating appropriate law. In fact, the street vendors were targeted by police, local authority commission agents, and demanding bribe by put them under continuous threat of filing case and confiscation etc. The constitution itself clearly provided the street vending right but subject to reasonable restrictions.
12. The Courts in India also took the stand that the street vendors have no right to trade in street except to pass and to re-pass over the street. In 1983, the Hon’ble Supreme Court in Bombay Hawkers Union vs Bombay Municipal Corporation(26) held that hawking in street is constitutionally protected practice and that can be protected practice and that can be exercised subject to the reasonable restrictions. In Sundaram Chetty vs Queen(27) held that the State and the citizen acknowledged the existence in every citizens of the right to use a public highway for professional as well as for ordinary purposes. Both recognized in the Magistrate power to suspend and regulate, and in the police power to regulate the exercise of the right.
13. In C.S.S. Motor service vs State of Madras(28) Venaktarama Iyer ‘J’ held that the true position then is, that public streets and roads vests in the State, but the State holds them as trustees on behalf of the public. The members of the public are entitled as beneficiary to use them a matter of right and their right is limited only by the similar rights possessed by every other citizen to use the pathways. The state as trustees on behalf of the public entitled to impose all such limitations. The public to carry on business in transport vehicles on public pathway cannot be denied. The Hon’ble Supreme Court in Railway Board vs Narinjan Singh(29) held that there is no fundamental right for anyone to use public street. In Himat Lal K Shah vs Commissioner of Police, Ahmadabad(30), the Hon’ble Supreme Court held that under common of law of England no one has a right to hold a meeting on highway and the same law prevails in India.
14. The Hon’ble Supreme Court in Sodan Singh vs New Delhi Municipal Committee(30) held that Article 19(1)(g) covers the street vending and a reasonable restrictions can be imposed under Article 19(6) of the Constitution of India. The Supreme Court directed the municipal authorities to permit hawkers on side walk, but hawkers cannot assert permanent occupation. The Union government evolved and published revised National Policy on Urban Street Vending and directed the authorities to follow the policy until new enactment is passed. The policy provided to protect and promote the street vendors livelihood and suggested to have digitalized surveys of vendors and to provide spatial planning for street vendors. The Supreme Court further directed all the Chief Secretaries of State to constitute Town Vending Committee (TVC) as per the National Policy on urban street vendors. The Union Government finally passed street vendors (Protection of livelihood and Regulation of street vending) Act, 2014. The Act was passed to prevent harassment of vendors, spatial accommodation and regulating the livelihood, remarkably.
15. The street vending is an existing right from time immemorial period. The rights are protected under the Universal Declaration of Human Rights and other International Treaties, Conventions and Recommendations. The Human rights are fundamental right. The Indian Constitution incorporated most of the universal declarations, conventions and recommendation in preamble, part III and part IV of the constitution. Moreover, the Supreme declared the street vending as Fundamental Right covered under Article 19(1)(g) of the Constitution subject to the reasonable restrictions that may be imposed under Article 19(6) of the Constitution. The street vendors right in India is a constitutional right. Further, to protect the street vendor right, Union Government passed the street vendors (Protection of livelihood and Regulation of street vending) Act 2014 confers executable legal right. However, even after 25 years of Supreme court verdict in Sodan Singh vs New Delhi Municipal Committee, the protection of street vendors by the local authorities are still mirage. The Union, State and local authorities are under a duty to protect the poor street vendors who are living below the poverty line.
Foot Notes:
* Advocate, Madras High Court; Research Scholar (P.T), TNDALU-Chennai; Ex-Law Reporter, I.L.R (Madras); Ex-Lecturer (Part Time), Dr.Ambedkar Govt Law College, Chennai.
1. Section 1 of Tamil Nadu Policy on urban street vendors.
2. Section 2(l) of street vendors (Protection of livelihood and regulation of street vending) Act, 2014.
3. Bombay Hawkers Union and others vs Bombay Municipal Corporation (1985) 3 SCC 528
4. Article 21 of the Constitution of India.
5. J.E.S. Fawcelt, “The law of nations” Allen Lane, The Penguin Press, London 1968 P-151.
6. Article 6 of the International Covenant on Civil and Political rights.
7. The Universal Declaration of Human Rights, the International Covenant on Civil and Political Right, the Convention on the prevention and punishment of the crime of genocide and the International Convention on the suppression and punishment of the crime of apathy deal with right to life and personal liberty.
8. Article 3 of UDHR
9. Article 7 of UDHR
10. International covenant on Economic, Social and Cultural right.
11. Article 6.1 of International Covenant on Economic, Social and Cultural Right.
12. Article 12 of International Covenant on economic, social and cultural rights.
13. Article 11(2) Ibid
14. Article 7 Ibid
15. Convention No.122, Employment policy convention 1964
16. https://www.ilo.org
17. (1989) 4 SCC 155.
18. Article 21 of the Constitution of India.
19. Ibid
20. (1985) 3 SCC 545.
21. Article 39 of the Constitution of India.
22. AIR 1997 SC 645.
23. AIR 1984 SC 802.
24. Article 47 of the Constitution of India.
25. Article 301, Part-III, Trade Commerce, Intercourse within the Territory of India, Constitution of India.
26. (1985) 3 SCC 528.
27. ILR (1883) 6 MAD 203.
28. (1952) 2 MLJ 894.
29. (1969) 3 SCR 548.
30. (1973) 1 SCC 227.
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