Few people realise that India’s struggle for legal rights continues even today. It is fought along the city’s footpath where a street vendor tries to keep their stall from being towed away by the municipal vehicle.
Article 19(1)(g) of the Indian Constitution enshrines the right to practise any profession, or to carry on any occupation, trade or business, albeit limited by reasonable restrictions imposed by any law.
Yet, rights are not a sufficient condition to empower the disempowered and disposed, pointed out political scientist Gopal Guru in his article ‘Do Rights have Limits?’
Legal history of vending rights.
The Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014 is commended by hawkers and Unions alike for its provision of legal protection. Under this law, vendors enjoy a legal status, vending certificates, identity cards and most importantly protection from police and local authorities.
The vending certificates, that are issued after conducting a survey, are valid for 10 years after which the vendor will not be given a certificate again. However, the intention of such a clause is to give the vendor the financial independence to start his own shop or similar such business.
The law bestows upon vendors the right to carry on business and to be given a new site for doing business if relocation becomes necessary. It also gives rights against eviction until a 30-day prior notice is given. The law also seeks to protect vendors from harassment by police and local authorities.
Accordingly, the Act mandated creation of Town Vending Committees (TVCs) to address vendor grievances. They are also responsible for maintaining a data-base of vendors, and carrying out social audits.
The law also considered the representation of marginalised communities like Scheduled Castes and Scheduled Tribes and protected hawkers from eviction. Moreover, it talked about the importance of public hygiene and health prior to the coronavirus pandemic. Lastly, the Act specifies that its laws are not to be interpreted as conferring ownership rights.
Many of these provisions were adopted from the National Policy on Urban Street Vendors, 2009 that recognized street vendors as a crucial part of the urban trade and distribution system. However, unlike an Act, the policy did not carry a legal edge or ‘legal teeth’ as stated by a ‘Women in Informal Employment: Globalizing and Organizing (WIEGO)’ policy brief of 2011.
It identified street vendors as “micro-entrepreneurs” who play an integral and legitimate part in urban retail trade and distribution system. The policy was created when cities globally face urbanisation and a growing informal sector. Organisations like the National Association of Street Vendors of India (NASVI) and Self-Employed Women’s Association (SEWA) played a crucial role in the formulation of this policy.
SEWA Founder Ela Bhatt said that the country needed “a change of perception, so that businesses and planners see vendors as entrepreneurs and vending as legitimate employment.”
Similarly, the Supreme Court also made innumerable attempts to address the prejudice associated with street vending. In 1985, it made a landmark judgement that recognised hawking as a constitutionally protected activity that ought to be regulated.
Soon after in 1989, the court ruled that the right to trade or do business on street pavement cannot be denied simply because the streets are meant for walking. This judgement was monumental for its acknowledgement of the poverty prevalent in India. The verdict stated that “there is no justification to deny the citizens of their right to earn livelihood by using the public streets for the purpose of trade and business.” It essentially set the tone for the policy that was created in 2009.
Current situation
However, according to Bombay High Court advocate Manmohan Rao, these historic efforts have proved ineffective due to a severe concentration of power with local authorities.
Vendors often complain to him about illegal confiscation. As per Section 19 of the Act, even those vendors who have not received a certificate should be returned their goods within one to two days depending on the perishability of the product. However, in reality, the vendors are charged fines ranging from Rs. 1200 to Rs. 1250 and still never get their goods back.
“The police lodge FIRs against the vendors claiming obstruction of justice. This is a non-bailable offence that sends the case directly to the sessions court and not to the magistrate,” said Rao.
Rao also said that Section 33 of the Act has an overriding effect over all other laws but it is not recognised by administrative officials. Due to this, surveys to identify eligible vendors and the formation of TVCs are still pending in many cities. Local authorities like the Brihanmumbai Municipal Corporation (BMC) demand domiciles and other documents for issuance of identity cards even though the Act does not ask for such items.
“Nowadays, officials claim that street-vending will increase the number of COVID-19 cases in Mumbai,” said Rao, “They can easily check the temperature of the vendors working in every ward. Even so, they insist that the vendors should be removed from all streets,” said Rao.
He added that the hawkers are still waiting for Rs. 10,000 promised by Finance Minister Nirmala Sitharaman in July to as many as 50 lakhs street vendors in the country.
Street vending and social bias
According to ‘Financial Inclusion of the Marginalised: Street Vendors in the Urban Economy’ written by economists Sharit Bhowmik and Debdulal Saha in 2013, street vending offers a means of livelihood to a huge section of the urban poor. It is an important segment of the urban informal sector that as per government estimates provides livelihood to ten million persons. This number triples when accounting for the dependents in vendor families.
Yet in reality hawkers do not seem to enjoy the dignity of labour due to such an important clog in the urban trade machinery.
Chairperson of Labour Studies at Tata Institute of Social Science (TISS) Dr Varsha Ayyar suggested that this discord may be explained sociologically by considering two things – the will of the State and the moral understanding of society.
Street vending as a job increased significantly in Mumbai after the shutting down of mills. Vendors have always catered to the working class and middle class. They service the city, yet face discrimination.
“For a city to be inclusive, the State needs to consider this work as contribution and not encroachment,” said Ayyar.
The same goes for the civil society, she said. Welfare associations stand against vendors because they do not find them useful. They do not realise that vendors make items accessible especially for other marginalised individuals like a woman who returns from home and needs to buy food to cook dinner.
However, for marginalised communities in India, even rights assured by the law are not guaranteed to be enforced, she said.
Citing Gopal Guru, Ayyar said that enforcement has a moral underpinning. Morality, thus, becomes a hurdle in exercising one’s right just as a market prejudiced by social thinking limits the rights of a vegetable street vendor.
“Gopal Guru says that rights cannot empower one to bypass caste-based or majority-based prejudice. Economic institutions, such as the market, are not sufficient to guarantee the rights of individuals. For a right to be a reality, it has to be disentangled from the constraining circles of social relationship,” said Ayyar.
Thus, when it comes to enforcement, the onus lies on the civil society and the State to protect the livelihood of the vulnerable.
“We are the kind of society that has a middle-class narrative of viewing vendors as parasites. Yet street vendors make every person a part of the consumption process. So, the question is: How do we look at important contributing members of society and what do we owe to them?” said Ayyar.
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