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In this paper, Hawkers and
Vendors have similar meaning and they are often swapped. Though
Hawking is a street trade done by moving from one place to another
while Vending is another street trade that is done by occupying a
space on pavements i.e. temporary shelters.
Hawking (Vending) means the act of selling of goods for a living.
It is one of the oldest occupation in India and by virtue of
Article 19(1)(g) every citizen has a right to carry on any lawful
trade or business. It is this right vested in the citizens that
the hawkers exercise while engaging themselves in the trade. The
right to carry on trade is a fundamental right of the vendors and
hawkers but it doesn't mean that street trading is a right as such
without any restrictions. Hawkers cannot be permitted to carry on
their trade on every road in the city. Hawking is not permitted in
those areas where road is not wide enough to accommodate traffic.
Hawking Zone
Marking of Hawking zone is necessary because it constitute a
serious obstruction to the public and creates traffic problems.
State and the Municipality got the right to designate and allocate
the places from where street trading can be done. Hawker doesn't
have the right to earmark the place to trade. In Bombay Hawker
Union vs. Bombay Municipal Corporation, the Court held that The
Non-Hawking Zones maybe fixed by the Municipal Commissioner in his
discretion, in consultation with the Bombay Municipal Corporation.
In areas other than the Non-Hawking Zones, licenses should be
granted to the hawkers to do their business on payment of the
prescribed fee. That will be without prejudice to the right of the
Commissioner to extend the limits of the Non-Hawking Zones in the
interests of public health, sanitation, safety, public convenience
and the like. Further the Court observed that, Hawking licenses
should not be refused in the Hawking Zones except for good
reasons. The discretion not to grant a hawking license in the
Hawking Zone should be exercised by the Commissioner reasonably
and in public interest.
Hawking is prohibited near hospitals or where necessity of
security measures so demand. If the roads are not wide enough to
manage traffic on it, then hawking may not be permitted in those
areas. In Maharashtra Ekta Hawkers Union vs. Municipal
Corporation, Greater, Court held that they should not hawk within
100 meters from any place of worship, holy shrine, educational
institution and general hospital and within the periphery of 150
meters from any Municipal or other market.
Legal Provisions under Constitution
Preamble of Indian Constitution states that India shall secure to
its citizens justice, social, economic and political and equality
of status and of opportunity. Article 14 of the Constitution deals
with equality before law. Even the vendors got right just like any
other persons and they will be protected by the law of the country
without any discrimination.
Article 19(1)(g) of the Constitution guarantees to every citizen
the right to practice any profession or to carry on any
occupation, trade or business. Likewise, hawkers have the
fundamental right to carry on trade or business of their choice.
But it is subjected to reasonable restriction imposable under
Article 19(6) of Indian Constitution. The court must balance
freedom of trade under Article 19(1)(g) and freedom of inter-State
trade and commerce under Article 301against the national interest.
In South Calcutta Hawkers, Association vs. Govt. of West Bengal,
the court observed that " Street trading being a fundamental right
has to be made available to the citizens but subject to Art. 19(6)
of the Constitution. It is within the domain of the State to make
any law imposing reasonable restrictions in the interest of
general public on such right." The court also observed that proper
regulation is essential condition as otherwise the very object of
laying out roads to facilitate traffic may be defeated.
The right to life includes protection of means of livelihood.
Forcible eviction of hawkers without prior notice is infringement
of Article 21 of the Constitution. In
Olga Tellis & Ors vs. Bombay
Municipal Council, the court observed that "no person can live
without the means of living, that is the means of livelihood. If,
the right to livelihood is not treated as a part of constitutional
right to life, the easiest way of depriving a person of his right
to life would be to deprive him of his means of his livelihood to
the point of abrogation." Performance of public act must be fair
and reasonable. So before eviction of the hawkers from the area,
they must be served with notice so that their right is not
infringed.
Other Important Acts
Section 201 of Motor Vehicles Act, 1988 penalizes anyone who
obstruct the flow of traffic on the public highway. It is
specially designed for avoiding unnecessary traffic block and is
applicable to both motorised and non-motorised vehicles.
Section 151 of the Criminal Procedure Code,1973 permits the arrest
of anyone about to commit any cognizable offence without orders
from a Magistrate and without a warrant, however, the person
cannot be detained in the police custody for more than 24 hours
from the time of his/ her arrest.
National Policy on Urban Street Vendors 2009
National Policy on Urban Street Vendors 2009 was a second revised
policy of the Bellagio International Declaration of Street
Vendors, 1995. It was approved by the UPA government, which
recognises street vendors as an integral and legitimate part of
the urban retail trade and distribution system. Bellagio
Declaration covers importance of vending license, planning of
hawking zones and other related matters but even after a decade,
still in India, vending is not legalized. National Policy on Urban
Street Vendors was adopted earlier in 2004 with the object of
providing and promoting a supportive environment for the street
vendors to earn a livelihood while avoiding the congestion on the
street so that pedestrians can move freely on road. In Kerala,
this policy was adopted in the year 2011 but state level survey
and fixing of vending zone is pending. National Policy on Urban
Street Vendors, 2009 is an advanced one.
According to the plan of National Policy on Urban Street Vendors
2009, each vendors will be allowed to carry on business for 20
years. This policy also concern about access to credit, skill
development, housing, social security and capacity building for
street vendors. Registration of vending business is the main aim
to facilitate the smooth flow and Town Vending Committee will
collect the registration fee which is minimal and will also charge
for monthly maintenance charge. TVC will issue registration
certificates and identify trespassers to ensure that legalized
vending business is legitimate. One of the motive is to avoid
traffic congestion by fixing vending zone and no-vending zone.
Licensing
The idea of licensing came up to prevent illegitimate business
which run in the name of street vending. It also aims at
protection of hawkers from the harassment of police and other
influential persons. It would serve the purpose of identification
of vendors in the area so as to maintain the space management and
it also helps in registration.
Licensing also makes the vending business of a person legal and
the authorities can keep record of the business of each vendors.
Census can be made easier when the records are correct. The idea
of licensing pop up from the National Policy on Urban Street
Vendors and it made the problems to be tackled easily such as
allocation of space in pavement for trading, legitimate tax
collection on monthly basis, etc. No hawking license shall be
issued in non-vending areas. The license will be only issued after
the survey and registration fees will be notified by the
authority.
National Association of Street Vendors of India (NASVI)
This was registered in the year 2003 under the Societies
registration Act of 1860 and it aims to organize and protect the
street vendors. It is a National federation of street vendor
organisations. Its secretariat is in Patna. They have conducted
many surveys in many cities to study about the vendor's problem
and also other related matters. Their main aim is tackle the
problems faced by the hawkers. |
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Conclusion
Though there is no separate act governing Hawkers, Supreme Court of India
directed Delhi Government to enact a law to regulate hawker's rights which often
contradict with commuter's right to road and street. Justice Ganguly, in his
judgement said "This court is giving this direction in exercise of its
jurisdiction to protect the fundamental right of the citizens. The hawkers and
squatters or vendors' right to carry on hawking has been recognised as a
fundamental right under Article 19 (1) (g) of the Constitution. At the same
time, the right of the commuters to move freely and use the roads without any
impediment is also a fundamental right under Article 19 (1) (d)."
Reference
# Reports on Street Vendors by NASVI
# Street Vendors in the Global Urban Economy, Sharit Bhowmik, Indian Journal of
Human Development, Volume 5, Number 1.
# see
http://www.greaterkashmir.com/news/2011/aug/16/a-case-for-regulating-hawking-11.asp
# (1985)3 SCC 528
# AIR 2004 SC 416, JT 2003 (10) SC 1, 2004 (3) MhLj 437
#
AIR 1986 SC 180, quoted in AIR 1987 Ori 189 at 190.
The author can be reached at: neethu.ravikumar2@gmail.com |
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Date of Publication: 12/10/2012 |
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