Tuesday, 18 March 2014

Better Late Than Never: Rights for Street Vendors

On February 19, 2014 the Rajya Sabha passed the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014 and it received the President’s assent earlier this month. This Act is a welcome step towards protecting the right to life and livelihood of the poor. This post seeks to provide an insight into this legislative attempt.

The Minister of Housing and Urban Poverty Alleviation, Dr.Girija Vyas while introducing the Bill in the Lok Sabha stated that street vending is a means of self-employment for the poor and also provides affordable and convenient services to a majority of the urban population. She further emphasized that these vendors must be able to pursue their livelihoods in a congenial and harassment free atmosphere. This Bill was passed by Lok Sabha on the 24th August, 2013 and transmitted to Rajya Sabha for its concurrence. The Rajya Sabha passed the Bill with amendments at its sitting held on the 19th February, 2014.

This legislative action reminds us of the decision passed by the Supreme Court in the case of Olga Tellis v Union of India[1] where the Court held that eviction of slum dwellers, over 50 percent of whom were street vendors, without alternative housing or arrangements would violate their right to life and livelihood under Article 21 of the Constitution of India. In its decision the Court did pay heed to the fact that the eviction would possibly interfere with their rights under Article 19(1)(g) as well. The decision was rendered in the context of eviction of slum dwellers who were evicted by the Bombay Municipal Corporation without any alternate arrangement.

The decision of the Supreme Court in Sodan Singh v. NDMC[2] is also of relevance. The Court stated that “If properly regulated according to the exigency of the circumstances, the small traders on the side walks can  considerably add to the comfort and convenience of the general  public, by making available ordinary articles of everyday use for a comparatively lesser price. An ordinary person, not very affluent, while hurrying towards his home after a day’s work can pick up these articles without going out of his way to find a regular market. The right to carry on trade or business mentioned in Article 19(1)(g) of the Constitution, on street pavements, if properly regulated cannot be denied on the ground that the streets are meant exclusively for passing or re-passing and no other use.”

These decisions have important implications not only the provisions of the Street Vendors Act, 2014 but also on the existing jurisprudence on the subject. .This Act garners the spirit of these famous cases and clearly provides for the protection of livelihood rights, social security of street vendors and regulation of urban street vending in the country.

The Act defines a street vendor to include a person engaged in vending of articles, goods, wares, food items or merchandise of everyday use or offering services to the general public, in a street, lane, side walk, footpath, pavement, public park or any other public place or private area, from a temporary built up structure or by moving from place to place and includes hawker, peddler, squatter and all other synonymous terms which may be local or region specific.

Salient Features of the Act:

Town Vending Committee; The Act envisions the formulation of a scheme, under which a ‘Town vending Committee’ shall be established. This Committee will be responsible for conducting surveys such that ‘vending zones’ can be clearly established. This survey is to be conducted every 5 years after the first survey is completed. All existing street vendors, identified in the survey, will be accommodated in the vending zones subject to a norm conforming to 2.5% of the population of the ward or zone or town or city. Where the number of street vendors identified are more than the holding capacity of the vending zone, the Committee is required to carry out a draw of lots for issuing the certificate of vending for that vending zone and the remaining persons will be accommodated in any adjoining vending zone to avoid relocation. Further the committee is responsible for issuing vending certificated to vendors.

The Town Vending Committee’s composition is one commendable feature of this Act. The Committee is to have 40 per cent representation from the Street Vendors on the basis of an election as per prescribed rules.  Another 10 percent will be the NGOs working in the field. The rest of the members are to be nominated by the Appropriate Government[3]The Committee will have the Municipal Commissioner or Chief Executive Officer as the Chairperson.

Vending Certificates:  The Act seeks to provide all vendors with a certificate upon payment of a nominal fee. The certificate will clearly highlight the vending zone, time allocated for vending, conditions and restrictions for vending. This certificate is issued for a specified period of time and can be renewed upon expiry. The certificate is issued under three main categories (a) a stationary vendor; (b) a mobile vendor; or (c) any other category as may be specified in the scheme.

Rights of street vendors: Vendors now have the right to carry on business subject to the terms and conditions of the vending certificate. In case of eviction street vendors can demand a new site to carry on the business. Street vendors can now exercise the statutory right to object to relocation or eviction until the survey is in progress. In case a street vendor, to whom a certificate of vending is issued, dies or suffers from any permanent disability or is ill, one of his family member i.e. spouse or dependent child can vend in his place, till the validity of the certificate of vending.

Duties of street vendors: The Act also enlists a few duties of a street vendor. These include general duties to maintain cleanliness and public hygiene in the vending zones, adherence to conditions of certificate maintenance of public property in the vending zones. Street Vendors are also obligated to pay periodic maintenance charges for facilities provided in the vending zones in addition to the prescribed vending fee. Street vendors must also remove goods and wares at the end of their time sharing period.

Relocation: The Act provides a clear procedure for relocation of vendors in case they are inhabiting an area which has been declared as a non – vending zone. The vendors are entitled to 30 days of notice before relocation. Additionally the authorities have been empowered to seize the goods in such case. In case they don’t relocate, they will be liable to pay for every day of default.

Redressal of Grievances:  Under the provisions of the Act, the Appropriate Government may constitute one or more committees consisting of a Chairperson who has been a civil judge or a judicial magistrate and two other professionals. Every street vendor who has a grievance or dispute may make an application in writing to the committee. The Committee is to then verify, conduct enquiry and take steps for redress the grievance. Decisions of the committee may appeal to the local authority.[4]

Plan: The Local authority is required to make out a plan once in every 5 years, on the recommendation of Town Vending Committee, to promote a supportive environment and adequate space for urban street vendors to carry out their vocation. It specifically provides that declaration of no-vending zone shall be carried subject to the specified principles namely; any existing natural market, or an existing market as identified under the survey shall not be declared as a no-vending zone; declaration of no-vending zone shall be done in a manner which displaces the minimum percentage of street vendors; no zone will be declared as a no-vending zone till such time as the survey has not been carried out and the plan for street vending has not been formulated. There is an important provision which mandates that the Plans of the Committee ensure that the provision of space or area for street vending is reasonable and consistent with existing natural markets. Thus the Bill provides for enough safeguards to protect street vendors interests.

Penal Provisions: If any street vendor indulges in vending activities without a certificate of vending; contravenes the terms of certificate of vending; or contravenes any other terms and conditions specified under the Act or Rules, he shall be liable to a penalty for each such offence which may extend up to rupees two thousand as may be determined by the local authority.

Other welfare provisions of the Act provide for the appropriate Government to undertake promotional measures of making available credit, insurance and other welfare schemes of social security for the street vendors.

The legislation should be seen as a good first step towards the protection of street vendors, however the jury is still out on what the practical consequences of the application of the Act might be. On the one hand, the rights of the street vendors has been recognised in a legislation while on the other hand engaging in street vending without a certificate is now illegal and entails penal consequences. This power to issue certificates can be linked to the decision of the Supreme Court in the case of Maharashtra Ekta Hawkers Union v. Municipal Corporation, Greater Mumbai[5] where the Court made it clear that hawkers have a right under Article 19(1)(g) to carry on their trade and can be restricted for the purpose of regulation under Article 19(6) of the Constitution. Hence any action challenging the constitutionality of the same might not succeed.

To a significant extent the effect of this Act is dependent on the rules and schemes to be framed and actions taken by the “Appropriate Government” and the various committees established under the Act. Hence, any judgement on the merit of this legislation would in our opinion, be premature.

[1] 1986 AIR 180 1985 SCR Supl. (2) 51[2] (1989) 4 SCC 155
[3] Appropriate Government means - in respect of matters relating to,— (i) a Union territory without Legislature, the Central Government; (ii) the Union territories with Legislature, the Government of the National Capital Territory of Delhi or, as the case may be, the Government of Union territory of Puducherry; (iii) a State, the State Government;
“Local Authority” means - Municipal Corporation or a Municipal Council or a Nagar Panchayat, by whatever name called, or the Cantonment Board, or as the case may be, a civil area committee appointed under section 47 of the Cantonment Act, 2006 or such other body entitled to function as a local authority in any city or town to provide civic services and regulate street vending and includes the “planning authority” which regulates the land use in that city or town.
[5] AIR 2004 SC 416

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