Prime Minister Narendra Modi had last year asserted that ‘pakoda’ sellers earning Rs 200 a day are also ‘employed’ but are not counted when jobs data are formulated. That may change soon. The Modi government has for the first time decided to count hawkers and street vendors for its economic survey, which it plans to begin by the end of this month.
Apart from recognising their economic activity, Modi government must also focus on a new kind of Ease of Doing Business – one for street vendors. For this, we need to unpack the labyrinthine ways in which they are defined and evicted across India.
Street vendors and hawkers in India, often regarded as ‘encroachers’, are largely at the mercy of local police or municipalities that make them hastily pack their goods during regular ‘eviction’ drives or shut the business down if ‘hafta’ money is not paid. This is a curious system because the law designed for their protection – the Street Vendors Act, ratified in March 2014 – specifically doesn’t allow their eviction until a survey has been completed and certificates, or licences been issued by the Town Vending Committees.
This begs a simple question: is the 2014 law really working?
At Centre for Civil Society, we analysed all 57 judgments passed by the Supreme Court and various high courts between January 2017 and September 2018 pertaining to this act. Of these, 47 cases had a common feature — eviction, or rather ‘unlawful’ eviction as hawkers call it.
Protected by law
As per the 2014 law, a municipality must not evict a hawker unless it has counted the number of vendors as part of its survey and issued licence to them. But municipalities first evict the vendors and then do the count. The courts too don’t side with them.
The 2014 Act defines a ‘street vendor’ as a person “engaged in vending of (products) from a temporary built up structure or by moving from place to place”. But courts have added riders and caveats. For instance, the Himachal Pradesh High Court does not define migrant hawkers as street vendors, and wants them evicted from Shimla. The court added its own criteria of ‘son of the soil’, which is not mentioned in the law, to determine who a street vendor is.
In 14 cases, the Delhi High Court ruled against the vendors and upheld the evictions. In 11 such cases, it looked at a decade-old, in some cases three decades old, committee surveys like the Thareja Committee 1992, the Chopra Committee 1996 or the NDMC committee 2007, to rule whether the person is a street vendor or not. If the person’s name did not feature in any of these committees (which together have only about a couple of thousand names), s/he was not a street vendor even if s/he had copies of tehbazari receipts and challans. Only a couple of thousands might qualify this condition.
Deserted by courts
Another issue is about determining the place where hawkers or vendors can sell their products. Even though the law demands a survey be done and a plan to be put in place before demarcation of no-vending zones, the Delhi High Court has upheld pre-2014 “no-vending zones” demarcated by the municipal bodies, in seven cases. On being challenged, the court said that the Act ‘merely prohibits any further declaration of no-vending zones and does not nullify the existing demarcation by the municipal authorities’. The Supreme Court in September 2013 declared that former demarcation of vending zones would be valid only until a legislation was in place. Based on this judgment, the demarcation now must be as per the Street Vendors Act 2014.
The Bombay High Court in 2014 said, “Street hawkers create dirt and nuisance. If they were to be conceded the right claimed by them, they could hold the society by ransom by squatting.” In 2017, the Delhi High Court was of the view, ‘Being pitched between the conflicting rights of the livelihood of the street vendors versus the life and security of the public in general, including the street vendors… we are of the opinion that the former must bow to the latter as without life and security, no question of earning a livelihood can arise.’
In 2011, the New Delhi Municipal Corporation asked a kiosk vendor at Bhagwan Dass Road, just opposite the Supreme Court, to shift elsewhere citing security concerns. As the vendor approached the Court, the deputy commissioner submitted a confidential folder to the judges with details of threats of bomb blasts received by the authority. None of the kiosks, canteens and shops operating within the Supreme Court complex was shut down. Lawyers continued to park their cars inside the Court as well as across the road. Why was this particular kiosk a threat? The Court did not ask this question. It was, after all, in the name of their security.
Rights as a vendor
How can street vendors be a threat to life and security of the public? Moreover, how do we weigh the concerns of the public against the rights of a vendor who is equally a part of the ‘public’ space? People prefer to be self-employed. Vendors are micro-entrepreneurs aspiring to become retailers and shopkeepers.
In 1953, Madras High Court’s Justice Ayyar, called the state a trustee of public streets and roads: “The members of the public are entitled as beneficiaries to use them, as a matter of right and this right is limited only by the similar rights possessed by every other citizen to use the pathways.”
Compare hawking to car parking in Delhi. Car owners pay per hour for occupying public space and it’s legitimate. On the other hand, hawkers pay money officially as well as unofficially to municipal officials and police officers, but there is still no certainty they won’t be evicted. What looks certain is courts won’t come to their rescue.
After Pulwama, we celebrated our chowkidars. Now it’s time to honour all our chaiwallahs and pakodawallahs.
Prashant Narang is Associate Director, Research and Jayana Bedi is a Research Associate at Centre for Civil Society