Street vendors and hawkers have formed an integral part of the Indian economy
since ancient times. The vendor population holds huge importance in the
unorganized urban sector in the country, catering to the needs of millions of
city dwellers across the nation. Despite being extremely affordable and
convenient, the inherent class bias present in both the general population and
government apparatus has led to them being labelled as a public nuisance
are perceived as encroachers of public property, causing traffic jams and
engaging with anti-social elements. This hostility is what resulted in street
vending as illegal for more than sixty years in this country, which has caused
our vendors and hawkers immense suffering and financial damage.
In 2014 however, the Central government passed the Street Vendor (Protection of
Livelihood and Regulation of Street Vending) Act that enshrined within it a
framework on regulation of vendors aiming at their upliftment through formation
of Town Vending Committees (TVC) and an autonomous Grievance Redressal
These were made to prevent arbitrary removal of hawkers from
streets and thus safeguarding their right to livelihood as enshrined under
Article 21 of the Indian Constitution. However, this Act has several major
loopholes such as misuse of term 'public nuisance' that have led to its
convenient breach and hence failure of its overall objective. How can these
legal ruptures be patched? Can the defence of necessity in tort be applied to
overcome these discrepancies?
This article aims at discussing and finding possible solutions to these legal
discrepancies and establishing a link between the defence of necessity in tort
and its indispensable use in the fundamental Right to Life and Livelihood.
Reading Defence of Necessity with Fundamental Right to Life
Broadly speaking, the term street vendor
can be defined as 'any person
engaged in vending of articles, goods, food etc or offering services to the
general public in a street lane, sidewalk, footpath, pavement, public park, or
any other public or private area. It includes hawkers, peddlers, and squatters.
 The Ministry of Housing put the estimate of total number of street vendors
in India at 10 million, whereas the Street Vendors Act calculates around 2.5
percent of a city's population as that of street hawkers or 'feriwalas'.
The reason as to why the population stands to be so high is because of the
several perks street vending offers, such as low degree of investment, capital
and skill required, flexible working hours, etc. However, these hawkers are
looked down upon as pests that have led to congestion and disorganisation in
cities. Due to the lack of a legal status, they are forced to work in conditions
of absolute insecurity, facing regular eviction and harassment.
Previous State and Central statutes like the Bombay Provincial Municipal
Corporation Act (1949), Motor Vehicles Act (1988), etc. are widely argued as
oppressive remnants of the British colonial regime that had sought to impede
indigenous trades and businesses from growing. These outdated laws were however
perpetuated for several decades until the Supreme Court in 1989 held that street
vendors have the fundamental right to carry out their trade and business as
enshrined under Article 19(1)(g) of the constitution. This however led to no
Then in 2014, the Central Government came out with the Street Vendors Act that
encompasses several points for safeguarding and regulating street vendors
including the creation of a Town Vending Committee (TVC) that mandates
registration of local vendors with the committee and a 5 yearly town planning
framework that would contain free-vending zones as well to ensure protection of
vendors from anti-encroachment drives.
Despite including several potentially
potent guidelines, the Street Vendors Act has failed as a policy due to several
reasons. Firstly, according to the Centre for Civil Society (CCS) data, only 33%
of a total 7263 towns have formed TVCs, and several states have not even adopted
the act the way it was envisioned and laid out in the first place. Apart from
all these practical hindrances, there also exist several legal lacunas in the
Act. The most gaping one being that the Act upholds 'public nuisance' as a
reasonable and tangible ground for eviction of street vendors by the police.
This provides the authorities enough statutory vagueness to use it against the
vendors, which in turn violates their right to livelihood.
So, can one establish a link between the fundamental Right to Livelihood with
the defence of necessity available to us in tort law to negate the clause
dealing with 'public nuisance' in the Vendors Act?
Directly quoting the Olga Tellis v. Bombay Municipal Corporation (1985)
'if the right to livelihood is not treated as a part of the
constitutional right to life, the easiest way to deprive him of his means of
livelihood to the point of abrogation'. Reading this with Section 81 of the
Indian Penal Code that deals with defence of necessity, 'Nothing is an offence
merely by reason of its being done with the knowledge that it is likely to cause
harm, if it be done without any criminal intention to cause harm, and in good
faith for the purpose of preventing or avoiding other harm to person or
To avail the defence of necessity, a prima facie violation of the law
is a pre-requisite. Likewise, in our case we see that there has been a prima
facie transgression of the law where, say public nuisance or trespass to public
property has been caused. However, the vendors were forced to breach the
statutory clause only in order to safeguard their Fundamental Right to
Livelihood. While private necessity is often seen as a 'privilege' and thus, not
absolute in nature, linking it to a Fundamental Right guaranteed under the
Indian Constitution cements it as an indispensable constitutional safeguard for
vendors to protect their livelihood.
The defence of necessity is applied in situations that demand urgency and where
violation of law is absolutely necessary for survival. Hence, in situations of
overarching urgency such as safeguarding one's Right to Life and Livelihood it
proves to be extremely crucial. Defence of necessity hence saves these otherwise
defenceless victims from regular seizure of goods, fines and harassment as it
proves, by definition, their right to life and livelihood as a constitutionally
Conclusion: Upholding Constitutional Morality through Tort Law
The defence of necessity is based on the maxim 'salus populi suprema lex' which
translates to 'the welfare of the people is the supreme law'. Despite coming out
with an Act which aimed at upliftment of street vendors, the government has
failed in securing their fundamental right to livelihood. States have failed in
granting them registration certificates and legal status, leading to constant
harassment, damage to goods and loss of livelihood.
Necessity takes into cognisance circumstantial morality, and thus saves the
prima facie offender from his circumstantial offence. As the country becomes
increasingly urbanised, the problem of space will nothing but rise in the coming
years and in turn raise newer spatial and legislative conflicts.
Hence, it is
imperative for the constitution to expand the fundamental Right to Life and
Livelihood yet again to safeguard a major segment of the urban poor from
arbitrary clampdowns on their sole means of earning. It is pivotal for it to
take into its fold the defence of necessity in order to ensure justice for one
of the most marginalised socio-economic groups in India street vendors.
- Sharit K. Bhowmik National Policy for Street Vendors. Economic and
Political Weekly, vol. 38, no. 16, 2003, pp. 1543-1546. JSTOR, www.jstor.org/stable/4413453.
Accessed 20 Oct. 2020.
- Bhowmik, Sharit Street Vendors in the Urban Economy. India
International Centre Quarterly, vol. 42, no. 2, 2015, pp. 98-108. JSTOR,
www.jstor.org/stable/26316555. Accessed 20 Oct. 2020.
- Sharit K. Bhowmik. National Policy for Street Vendors. Economic and
Political Weekly, vol. 38, no. 16, 2003, pp. 1543-1546.
- Street Vendors (Protection of Livelihood and Regulation of Street
Vending) Act 2014.
- Sodan Singh and Ors v. New Delhi Municipal Committee and Ors (1989) 4
- Olga Tellis v. Bombay Municipal Corporation (1986 AIR 180, 1985 SCR Supl.