Professor Sharit K. Bhowmik, Guest Contributor
Tata Institute of Social Sciences, Mumbai
The laws for street vending are regulated by the Bombay Municipal Corporation Act of 1950, which was in force before the state of Maharashtra was formed on May 1, 1960. The municipal laws do not provide for the erection of any structure or stall on the streets that will obstruct the passage of the public or impede the working of a drain or open channel. Such a structure is liable to be removed by the municipal commissioner, and the person responsible for the creation of the structure is to incur the expenses of its removal. It is imperative for a person to procure a license from the municipal commissioner to be able to hawk his or 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.
The municipal laws regulate the use of pavements while the police regulate the use of roads. Hawkers are evicted mainly under sections 102 and 107 of the act. These sections stipulate that anyone preventing smooth flow of traffic can be arrested and removed. The police, however, have sweeping powers regarding what is termed as encroachment. This stems from Section 34 of the Police Act of 1954, which has been adapted by all states with regard to the local police. “No person shall cause obstruction in any street or public place by … exposing anything for sale or setting out anything for sale in or upon any stall, booth, cask, and basket or in any other way whatsoever.” Hence, even if the municipal authorities grant space for vending in public places, the police have a right to evict them under the above section.
In Mumbai, where there are around 250,000 hawkers, the municipal corporation has granted only 14,000 licenses. Moreover, the municipal corporation has stopped granting new licenses for the past two decades, hence most of these license holders do not ply the trade at the present as they are too old or they have died. The TISS-YUVA survey found that only 5,653 hawkers, out of a total of 102,401 hawkers, had licenses. Hence, this system has more or less failed.
As far as urban planning is concerned, all such documents show that street vendors occupy no place in them. The Draft Plan of the MMRDA for 1995-2015 has demarcated spaces for everything except markets for street vendors. One way of ensuring some support to street vendors is forming open air markets in open spaces in different localities.
Hawking zones and court cases
The municipal corporation has a system for demarcating hawking and non-hawking zones; however, this system is now being challenged. There is a pending case in the Supreme Court that has the potential to have serious repercussions. Before we look at the details, it’s important to understand the background.
Since the 1980s, there have been a number of public interest litigations (PILs) in Mumbai on issues affecting the poor. However, the most important case affecting the status of street vendors in the city was in 1989 in the Supreme Court. More than a few decades ago, the New Delhi Municipal Corporation evicted a common street vendor, Sodhan Singh, who sold garments at Janpath in New Delhi. He appealed to the Supreme Court through a PIL claiming that the act violated his fundamental rights, more specifically his right to carry on business or trade (article 19(1)g). In a very significant judgement, the Court ruled that:
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 the general public, by making available ordinary articles of everyday use for a comparatively lesser price. An ordinary person, not very affluent, while hurrying towards his 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 re-passing and no other use. (Sodhan Singh vs. NDMC, 1989).
The above extract from the Supreme Court judgment is significant because it emphasizes several important aspects of street vending and use of public space. The judgment notes the positive role of street vendors in providing essential commodities to common people at affordable prices and at convenient places. Moreover, the judgement notes that street vending, if regulated, cannot be denied merely on the ground that pavements are meant exclusively for pedestrians. The most important aspect is that street vendors are exercising their constitutional right to carry out trade or business. Hence, it should be regulated properly and not abolished.
The judgment directed the state governments to direct their municipalities to evolve hawking zones where street vendors could practice their trade. In Mumbai, this happened in 1998. The Municipal Corporation of Greater Mumbai (MCGM), after a great deal of consultation and discussion, demarcated the hawker zones for the city and suburbs. The TISS-YUVA survey was a part of this exercise. The proposed hawker zones were notified to all through newspaper advertisements. MCGM also announced that any individual or party that had any objection should notify this to them within a month. There were hardly any objections or clarifications. It appeared that the plan would be implemented. However, no sooner had MCGM decided to implement the plan than spates of protests from various residents associations (led by Citispace) began in earnest, even getting a stay from the High Court. After a few years, the High Court passed an order which would in effect recognize only 20,000 or more vendors.
In the meanwhile, the Government of India approved the National Policy for Urban Street Vendors on 20 January 2004. The present government, too, has endorsed the policy. The Ministry of Urban Employment and Poverty Alleviation called a National Workshop on Urban Street Vendors on 19 October 2005 where all the senior level officers of the state governments were called. The purpose was to take stock of the situation. The ministry found that none of the states had made any move to implement the policy, though each representative spoke highly of the policy. The Ministry (which has now become the Ministry for Housing and Poverty Alleviation) called another meeting on 12 July 2006 for the same purpose. It was found that some states (UP, Rajasthan and Delhi) had started to implement the policy with certain minor adaptations to suit their needs. This was a promising start. Andhra Pradesh and Orissa have the most progressive legislations.
In the final article in this series on street vendors in Mumbai, we will look more closely at this National Policy and its potential to protect hawkers.