BY ARATRIKA GHOSH ,2ND YEAR STUDENT OF SYMBIOSIS LAW SCHOOL AT NAGPUR.
Street Vending right to carry on their trade in public street has been subject matter of debates and discussion globally for a long time. .Accordingly in Bellagio International declaration of street Vendors , 1995 to which India was a signatory envisaged the formulation of a National policy for hawkers and vendors to improve their standard of living by giving them a legal status through licensing promotion of self-regulation access to legal system and credit facilities etc amongst other things and the Government of India for the first time defined the term ‘street vendor’ in the National policy on urban street vendors which as follows:
According to the Ministry of Housing and Urban Poverty Alleviation, India has 10 million street vendors, including 250,000 in Mumbai, 450,000 in Delhi, more than 150,000 in Kolkata, and 100,000 in Ahmedabad. The majority of them are immigrants or laid-off workers who labour an average of 10–12 hours every day and are nonetheless poor. Street vending employs 14 percent of India’s entire (non-agricultural) urban informal workforce. The common license-permit raj in Indian bureaucracy ended in the 1990s for most retailing, but it remains in vogue. In most places, such as Mumbai, where the licencing ceiling is 14,000, more vendors hawk their wares illegally, making them vulnerable to bribery and extortion by local police and municipal authorities, as well as harassment, large penalties, and unexpected evictions. The profession was a cognisable and non-bailable offence in Kolkata.
Over time, street sellers have formed trade unions and groups, and several non-Governmental organisations have begun to assist them. The National Hawker Federation (NHF) is a federation of 1400 street vendor groups and labour unions spread over 28 states in India.
The bill, which aims to provide social security and livelihood rights to street sellers, is based on the ‘National Policy For Urban Street Vendors,’ which was first introduced in 2004 and then updated in 2009 as the ‘National Policy on Urban Street Vendors.’ In the same year, the Ministry of Housing and Urban Poverty Alleviation distributed a draught bill named “Model Street Vendors (Protection of Livelihood and Regulation of Street Vending) Bill, 2009” to all states and union territories for the drafting of state legislation.
However, because there were no legal ramifications, few countries made any headway in this area. Finally, in 2010, the Supreme Court of India, which acknowledged street hawking as a source of livelihood, asked the ministry to write a central legislation, and on November 11, 2011, a draft of the same was released to the public. The draft bill’s main points were the protection of legitimate street vendors from police and civic authorities, the establishment of “vending zones” based on “traditional natural markets,” proper representation of vendors and women in decision-making bodies, and the establishment of an effective grievance redressal and dispute resolution mechanism.
The bill was written with the support of Sonia Gandhi’s National Advisory Council and approved by the Union Cabinet on August 17, 2012. It was introduced in the Lok Sabha (Lower House of the Parliament of India) on September 6, 2012, by Kumari Selja, Union Minister of Housing and Urban Poverty Alleviation, amidst the outcry in the house over the coal block allocation fraud. The Lok Sabha passed the bill on September 6, 2013, and the Rajya Sabha passed it on February 19, 2014.
The Bill says—
The Town Vending Committee will be in charge of performing a survey of all vendors within its authority, which will be done every five years. No street seller will be evicted unless and until a survey is conducted and a certificate of vending is given.
A defined vending zone will be set aside for all street sellers. If all of the sellers are unable to be accommodated in the same vending zone, space will be allocated by lot. Those who do not receive a spot in the same vending zone will be placed in adjacent vending zones.
A certificate of vending will be issued to all street vendors over the age of fourteen. Such certificates will be provided only if the person guarantees that he will run his business alone or with the support of family members, that he will have no other source of income, and that he will not transfer the certificate. If the seller dies or becomes permanently disabled, the certificate might be transferred to a member of his family.
If the vendor violates the certificate’s terms, the certificate may be revoked.
No seller will be permitted to operate a vending machine in a no-vending zone.
The vendors will be transferred to another area if a specific region is declared a no-vending zone. However, such street vendors must be given at least 30 days’ notice before being relocated. Vendors who fail to shift from a place after being given notice would be subject to a penalty of up to two hundred fifty rupees per day.
The local authorities have the ability to physically remove sellers and seize their items if they have not relocated to vending zones.
A conflict resolution body consisting of a Chairperson who has previously served as a civil judge or judicial magistrate, as well as two other professionals as determined by the competent government, shall be established.
Each zone or ward of the local government will have its own Town Vending Committee.
A vendor who vends without a certificate of vending or who violates the conditions of the certificate may be fined up to two thousand rupees.
The National Hawker Federation (NHF) has pointed out that the current bill differs from the draft bill, which ensured that ‘Town Vending Committees’ (TVC) would have at least 40% representation of street vendors; however, the final bill presented in the Parliament’s monsoon session makes civic bodies, which have no representation of street vendors, the final authority on all issues concerning their fate, including the rehabilitation and resettlement of street vendors.
The Committee noted that street vendors’ identity cards and vending certificates give them the legal authority to do business in a specified vending zone. It was reported that not all vendors had received identity cards or vending certificates. It was suggested that merchants be given smart cards containing pertinent information (such as identification and details of the vending certificate), which are more durable than paper-based documents.
The Act authorises state governments to establish TVCs for the purposes of I am identifying street vendors, (ii) issuing vending certificates, and (iii) keeping vendor records. The Committee noted that in numerous states, the TVCs had yet to be formed, rendering street sellers vulnerable to eviction. It was suggested that TVCs be formed as soon as possible in such states. It emphasised that no evictions or relocations shall be carried out without first consulting TVCs.
The Committee pointed out that official representatives chosen by state governments make up 60% of a TVC. This may take precedence over legitimate concerns expressed by vendor reps. It was also pointed out that the Act makes no provision for elected representatives to be included in TVCs. It was suggested that ex-officio members, permanent invitees, and observers from local governments, state legislatures, and the Parliament be included. The Ministry of Housing and Urban Affairs should keep track on vendor representation in TVCs on a regular basis and keep a database of the representation.
ULTIMATELY STREET VENDORS (PROTECTION OF LIVELIHOOD AND REGULATION OF STREET VENDING) ACT 2014 CAME INTO EFFECT.
Salient features of the Act:
(i) That in terms of the provision of section 2 (1) (a) (iii) the “appropriate Government” means in a state , the state Government and as per provision of sadiron 2(1) (b) of the said Act “Street Vendor” means 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, land side walk, foot path pavement, public park or any other public place or private area for 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 and the words street vending with their grammatical variation and cognate expressions shall be construed accordingly. In terms of the provision of section 2(1) (m) of the sati act “Town vending committee” means the body constituted by the appropriate Government under section 22 and in terms of the provision of section 2(1) (n) “Vending Zones” means an area or a place or a location designated as such by the local Authority on the recommendations of the Town vending committee for the specific use by street vendors for street vending and includes footpath, side walk, pavement, embankment portion of a street, waiting area for public or any such place considered suitable for vending activities and providing services to the general public .
According to the scheme of the Act the State Government shall frame a street vending scheme specifying (a) criteria and process for regularisation and issue of vending certificate (b) eviction and relocation of street vendors and manner of cornification of goods (c) process and disposal of appeal (d) principle for determining vending Zones. (d)The town vending committee shall be constituted by the state Government in terms of the provision of section 22 of the said Act who shall conduct a survey of all existing street vendors within the area under its jurisdiction and subsequent survey shall be carried out at least once in every five years and shall ensure that all existing street vendors identified in the survey , are accommodating in the vending zones, subject to a norm continuing to two and half percent of the population of the ward or zone or town or city as the case may be in accordance with the plan for street vending and no street vendor shall be evicted till the survey has been completed and the certificate of vending has been issued to all street vendors .
That according to the scheme of the act any person above the age of 14 years planning to do any street vending business have to register himself with the town veining committee and the Town vending committee upon consideration of the same shall issue a certificate for doing business in the specified street vending scheme developed by the State Government of course on a charge of vending fee and further those person who having certificate are allowed to work as street venders with certain restriction whether or not included under the survey under sub section (1) of section 3 of the said Act . The certificate can be issued to a stationary mobile or any other vendor and will septicity the vending Zone activities and other conditions and restriction on street vendors.
The Town vending committee shall comprising of (a) the Municipal Commissioner or chief executive officer who shall be the chair person (b) such members of other members as may be prescribed nominated by the appropriate Government, representing the local authority , medical officer of the local Authority , the planning authority , traffic police , police , Association of street vendors , market Associations traders association Non- Governmental organisation, community based organisation , resident welfare Association, banks and such other interested person as it deems proper. (i)The number of members nominated to represent the NGO and the community based organisation shall not be less than 10% (II) the number of members representing the street vendors shall not be less than 40% who shall be elected by the street vendors themselves provided 1/3rd of members representing the street Vendors shall be from women vendors provided due representation shall be given to lth SC, ST,OBC , minorities and persons with disabilities from members representing the street vendors .
The local authority may evict or relocate the street vendor if he consistently fails to comply with the provision of the Act. The authority may relocate the vendors of creating nuisance obstructing public movement.
That if a person doing business without certificate or violate the terms of vending certificate or any other provisions of the Act then he may be charged with a penalty of Rs. 2000.00.
Street vendors who have grievances can appeal to a dispute redressal committee constituted by the local Authority. The committee shall consist of one sub judge. /Judicial magistrate or an executive magistrate and other persons experiences in street vending and natural markets. The committee has to redress the grievances within the time period specified in the scheme. That this act is over riding effect on state law that are inconsistent with the Act.
The Act mandates that local governments develop street vending strategies to address specific issues linked to street vending. These issues include I am identifying vending zones, (ii) developing spatial planning for street vendors, and (iii) putting in place procedures to ensure that goods and services are distributed efficiently and cost-effectively. Only 1,341 towns (31%) of the 4,315 towns in states that have notified a scheme under the Act have developed plans since the Act’s enactment, according to the Committee. Nine states have yet to make vending arrangements, including Assam, Meghalaya, and Sikkim. Vending zones have been notified in several states, such as Assam, without any vending strategies in place.
Many cities are being developed as smart cities or master plans are being developed without street vendors in mind, according to the Committee. It was suggested that the Ministry of Housing and Urban Affairs issue guidelines for I am interpreting the Act with developmental missions and urban planning processes, (ii) consulting TVCs when planning projects under the smart city mission, and (iii) ensuring vendor representation in the Committee formulating a city’s master plan.
GRCs, according to the Committee, are critical for gaining vendor trust and guaranteeing process openness. Only nine states (including Assam, Kerala, and Punjab) have established GRCs, according to the report. It was suggested that the federal government facilitate the formation of GRCs by holding review meetings. It was also suggested that a website or mobile app be created to provide traceability, accountability, and openness in the complaint resolution process.
View about the said Act:
(i) Upon perusal of various judgment, the National policy and the recent Act it can be safely said that little regard is given to street vendors rights in their goods both saleable items and items which are their tools to carry out the trade This is in view of the act. This is in view of the fact that there has been little discussion on this said issue, and protection if any has been provided only in the form of providing notice to the vendor and the imposition of fine and restoring confiscation as a 1st resort There are no provisions which make no observance of the notice and imposition of fine as a precondition of confiscation of goods as punishable under law. Therefore, enforcement will be a problem in the longer run.
(ii) Street vending has not been included in urban planning which seems to be a huge drawback for the street vending activity Though National policies envisaged the inclusion of street vending in the master plan the same is yet to be incorporated by the authorities responsible.
(iii) The act makes the vendors liable to make payment to local bodies in the form of maintenance charges for the facilities provided and vending charges. However there is no provision as to the maximum chargeable amount from the Vendors. The discretion to deicide the quantum etc. is solely left to the town vending Committee.
(iv) Though the Act places liability on the vendors to pay changes towards maintenance of various facilities provided if t do3es not even specify what kind of facilities the local bodies are to provide.
(v) Though the Act, various judgments of supreme court and High courts and the National policies formulate sought to provide protection to vendors from harassment the same have not been implemented due to lack of sensitivity in the officials.
(vi) The Act in particular and the overall legal position in general does not provide for the vendors to transfer their right to vend either permanently or temporarily. .An essential element of the right to property is the ability to transfer or dispose property in a manner the owner/holder would like therefore this restriction on the ability to transfer their vending right greatly hampers their property right.
(vii) The Act in particular and the overall law in general does not provide for what article which can or cannot be confiscated by the local authorities This is as major drawback of the act.
(viii) It has also been observed that the court judgments and the National policies sought to promote the idea of giving preference to certain class of individuals on caste basis or gender considerations are not required and also do not serve any useful purpose.
(ix) The Act provides that the certificate of vending which will be issued to the vendors will specify the type of vending adopted by the vendor and thereafter the vendor can carry out vending only in that form.
(x) The Act further provides that the Town Vending Committee shall also specify within the act itself to protect the vendors from harassment by penalizing officials who indulge in activities prohibited in the act.
(xi) The scheme of the Act provides for a very complex set up of scheme and constitution of the Town vending committee. The effectiveness of the same remains questionable Further it is not clear how far the executive will be able to promptly implement the same and there is no provision for a mechanism lint e interim. It is likely that till the provision is implemented the vendors will continue to be harassed.
(xii) There also appears to be little awareness among street vendors about the provisions of law pertaining to their trade
So all the more, this Act seems quite far fetched to achieve in its entirety. But to take these objectives from paper to field a long path has to be covered.
The Analysis made by me based on different Articles written by different writers, and data collected from the internet without verifying the same and also based on the judgment of Hon’ble Supreme Court Supreme Court and various High courts in India.