By Asmita Tyagi, BA LL.B. Student
Combination of the remedial, rights-based legislation, The Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014, was enacted to redress forty years of historical judicial and administrative antagonism towards street vendors in India. The Act, which was based on constitutional guarantees under Articles 14, 19(1) (g) and 21, aimed at institutionalizing sizeable governance, securing livelihoods, and harmonizing urban planning with the informal economic process. Nevertheless, the practical experience of street vendors, ten years later since its passage indicates the system of disempowerment enabled by inadvertency in its implementation, excesses by the municipality and judicial interference taking precedence over the statutory protections of the law. High Court orders, frequently rendered in the interest of traffic control, public convenience, and beautifying cities, have watered down the intent of the 2014 Act to become a welfare law, turned into an instrument of exclusion and control. Moreover, the use of municipality law has only led to further dilution of the intent of the said act.
Although the act is applicable to the entirety, it reserves the right for the state municipality to formulate regulations, while having the 2014 act based. This has led to several changes by the local authority often leading to separate interpretations of rules thus formulated, even if they appear not so distinct based on their verbatim. The act, which aimed to provide the work of Steet vending a legitimate occupation and a recognized right, is now treated as a conditional permission, revocable at the will of the municipal department. Section 21(c) has its terms and conditions of clause open to subjective interpretation at will of the government, as a weaponized mechanism disguised in a facit of law. The certificate of vending (CoV) is treated as a license to be rationed; consisting of arbitrary caps and exclusions whereas it was supposed to be of a protective statutory nature. Use of penal measures, which was supposed to be a last resort, is rather used as a primary regulatory tool.
Over time, street vendors have always been prone to being evicted, harassed, and criminalized by city authorities. Against this background came from the Street Vendors Act, 2014, a remedial piece of legislation, which was meant to put an end to informal judicial rulings in favor of a detailed statutory regime. However, following the path between enactment and implementation, the disjuncture between protection by law and do-not-have is increasing.
Prior to the promulgation of the 2014 Act, the statutory law regulating street vending was practically defined by judicial decisions. In Bombay Hawkers’ Union v. The Supreme Court has acknowledged street vending a basic right in Article 19(1) under the seventh clause, namely, Article 19(1) of the constitution, whereas permitting a city to provide reasonable limitations in the name of law and order. But since there was no statutory framework, regulations amounted to arbitrary eviction. Such tension was also expounded in Olga Tellis v. The Court in Bombay Municipal Corporation where the court had made the right to livelihood interdependent to the right to life in Article 21. Although the Court did not overturn the powers of evicting the pavement dwellers and hawkers, it did take note of the fact that it was not constitutionally clear when it was necessary to deprive both pavement dwellers and hawkers of their means of livelihood without due process. In Maharashtra Ekta Hawkers union, the Supreme Court urged expressly the enactment of thoughtful legislation to control the street vending, in recognition of the impotence of executive powers to act on previous judicial directions. To a great extent, the Street Vendors Act, 2014 was introduced in accordance with this judicial requirement.
The main component of the Act is the Town Vending Committee (TVC) which is envisaged to be a democratically make-up body with compulsory representation of street vendors themselves, conducting surveys, issuing certificates of vending and setting up of vending areas- devolving power and integrating the participation of the vendors in city governance. The Act in its Section 3 forbids the eviction of street vendors without a completed survey and certificate of vending being issued. The eviction is only allowed in extraordinary situations and must be conducted under the grounds of natural justice, and that includes notice and hearing. Moreover, the relocation and rehabilitation were mandated by the act. The Act grants street vendors the credit it rightfully deserves as part of urban economies. It aims at striking out a compromise between the interests of the vendors and the issues of urban planning that denies that vending is never compatible with community order and beauty. Although having a progressive framework, the practice of the Act has been not only unequal, but also highly troublesome.
In several states, TVCs are either unnecessary or are operative without real representation of vendors. The surveys, which lie at the heart of the protection mechanism of the Act, are being delayed regularly, making vendors illegal by default. Municipal governments still use municipal laws of the colonial period to seize commodities, issue fines and forcibly remove vendors mostly against the Act. The vending certificate, which is a shield, is transformed into a gatekeeping instrument because arbitrary limits and selective release are selectively issued.
Instead of brokering livelihoods, the process of formalization has become a source of new layer of precarity as the vendors are controlled but not guaranteed. Although the High Courts are very essential in the enforcement of rights, the court interventions of the street vending issues have mostly compromised the statutory framework of the 2014 act.
High Courts often pose the issue of street vending in the form of traffic congestion, public inconvenience, and city aesthetics. Interim eviction orders often have long-term estoppel effects, effectively resulting in invalidating the statutory rights of vendors. There are no time-stipulated compliance structures that can make executive powers postpone surveys indefinitely even as evictions continue to take place. Courts in various cases have used municipal submissions without inquiring on how the Acts are complied with hence putting administrative convenience over the intended objective of the law. Such a judicial stance reinstates the fact that the Act was meant to put an end to. This course is constitutionally troubling; there is a violation of article 14 made by arbitrary and selective enforcement and the unreasonable and indirect limitations make article 19(1)(g) sound far-fetched. The inability to follow up the Act with the letter and spirit is a constitutional re- regression especially to the economically marginalized groups.
The Street Vendors Act, 2014 was put in place to democratise the urban space, and be able to protect one of the most vulnerable strata of the India workforce. But its potential has not been much realised. The interventions of the High Court based on the interests of corrective actions instead of acting as corrective agencies has been observed to strengthen the exclusionary urban governments.
The problem of street vendors living in the paradoxical zone between the law and practice will not disappear unless courts positive intervene to enforce statutory protections and safe functioning TVCs, and curtail executive excess. Inclusive cities are not a matter of whether vendors are absent, but the sense of legal accountability.
