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Authored by Neethu Ravikmar. Law student of fourth year from nuals cochin

Category: Home \ Constitutional law \ Human rights

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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.

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Authors contact info - articles The  author can be reached at: neethu.ravikumar2@gmail.com

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Date of Publication: 12/10/2012

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