Author: Ishan Mishra

Edited by: Sulesh Choudhary

ABSTRACT

In this case, a landmark case decided by the Supreme Court, the Supreme Court of India had addressed the rights of the street traders in New Delhi. The petitioners, comprising various street vendors & hawkers, had claimed their fundamental right to engage in the trading occupation on the public pavement and raised the arguments that their ability to earn a livelihood was being obstructed unjustly by the N.D.M.C.

The court had to examine the provisions of Article 19(1)(g) & article 21 of the Constitution of India, which guarantee the right to carry out any trade, occupation, or business & the right to life & personal liberty, respectively. The petitioners were contending that their eviction from the zones designated areas for trading areas on the pavements were violative of their fundamental right, especially since they were allowed previously, to conduct their business upon the payment of the Tehbazari fees.

The counter asserted by the N.D.M.C. was that no individual has this legal right to occupy any public space exclusively for any commercial purposes, further emphasizing that the streets are primarily for the use of the public. The court had to, ultimately acknowledge the street trading legitimacy but also underscored the necessity for some appropriate regulation to prevent any chaos, public order & preventing of Public Nuisance through such occupations. Also, these occupations were subject to some reasonable restrictions if they conflicted with the public order, health & public interest.

Keywords (Minimum 5): Section 268, public nuisance, Article 19, fundamental rights, right to livelihood, street vendors

1. Fundamental rights: The rights ensured in the constitution for the effective carrying of the trade, business, or occupation subject to the art by the citizen 19(1)(g). whereas Article 21 guarantees the right to life and personal liberty.
2. Public street: It is a street which has been laid down for every person to commute without any hindrance.
3. Right to livelihood: It is recognized by law in such a manner that both men and women have equal rights to livelihood and can access resources such as air, water, etc.
4. Municipal Authorities: These are self-government institutions responsible for the effective administration of cities & towns.
5. Reasonable restrictions: under article 19(2) of the constitution are imposed in case there is a threat to the sovereignty & or the integrity of India
6. Public Nuisance: Any act that is an illegal omission & which causes any common injury, danger, or annoyance to the public.
7. Street trading/ hawking: It is an act of selling the required goods and services to the public without any built-up structure that is permanent.

CASE DETAILS

INTRODUCTION AND BACKGROUND OF JUDGEMENT

In India, individual people have been given the right to carry out any profession of their choice which has been explicitly stated & or provided under Article 19(1)(g) of the Constitution of India allowing them to practice any profession, or to carry on any occupation, trade or business. But simultaneously it also provides that if any vendor gets involved in an act like illegally obstructing the pavement meant for the public for his or her commercial ends. Such violations by those who are in any manner involved will be booked under Section 268 which amounts to PUBLIC NUISANCE defined under the INDIAN PENAL CODE, 1860 which describes it as one that causes injury, danger, or annoyance to the public or to those people who in general lives or occupies their property in the vicinity.

In this very case of SODAN SINGH Vs. N.D.M.C dating back to 1989, what was ruled by the Supreme Court was that “the right to carry on any trade or business stated in Article 19 (1) g of the constitution, on the street pavements, if are properly regulated, cannot be denied on the ground that the streets are meant exclusively to pass or re-passing and of no other use.”

This case primarily deals with the constitutional validity of the street vendors & the respective balance of their fundamental rights (street vendors) to effectively carry out their trade versus the need for regulation of the public spaces by those Municipal Authorities.

LEGAL ISSUES RAISED

1. Whether or not the petitioners had the right to conduct such street trading as per the provisions of article 19(1)(g) of the Constitution of India.
2. Whether or not the petitioners possessed the right to occupy any specific areas on the public pavements for carrying their business permanently.
3. Whether or not the refusal to allow the petitioners to trade was violative of their right to life and personal liberty under Article 21 of the Constitution

PETITIONER / APPELLANT’S ARGUMENTS

1. The counsel for the Petitioner argued that it was their fundamental right to engage in street trading under article 19(1)(g) of the constitution of India which guarantees everyone the right to practice any profession of their choice or to carry on any occupation, trade or any business.
2. The counsel for the Petitioner in continuation contended that they had been allowed to conduct their business in some specific areas by the municipal authorities but in exchange for the payment of Tehbazari fees.
3. The counsel for the Petitioner further submitted & claimed that the refusal to allow the hawkers to trade infringed upon their right to livelihood and personal liberty as per Article 21 of the Constitution of India.
4. The counsel for the Petitioner also argued that street vending was contributing to the economy and also was providing essential goods and services to the public which thus was serving a public interest.
5. The counsel for the Petitioner also argued & submitted that while the regulation of street trading was necessary, the outright prohibition was unjustified and would lead to social unrest and increased poverty among the vendors.

RESPONDENT’S ARGUMENTS

1. The counsels for Respondent submitted that nobody has the legal right to occupy exclusively any particular area on the road pavement for the pursuance of any trading business & nobody can claim any fundamental right in such cases whatsoever.
2. The counsel for the Respondent submitted that the municipal authorities did have or had the power to regulate the street trading & also impose restrictions to ensure that the public spaces are accessible & remain safe for every citizen.
3. The learned counsel for the respondent also emphasized that maintaining a clear & and unobstructed public path was essential for public safety & convenience.
4. The counsel for the Respondent also referred to previous rulings that supported the view that street vendors do not have a permanent right to occupy any public spaces.
5. The counsel for the Respondent also submitted & argued that street vending or hawking is a source of livelihood for many such people, so it should not come at the expense of any public order & or the rights of other citizens using public spaces freely.

RELATED LEGAL PROVISIONS

• Article 21[1]: – “Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law.”[2]
• Article 19(1)(g): “All the citizens shall have the right to practice any profession or to carry on any occupation, trade, business.

• Indian Penal Code
• Section 268: “This section defines “Public Nuisance” which may be applied if street vending obstructs public pathways or creates a hazard for the pedestrian”.
• Section 144: “This section allows the authorities to prohibit the assembly of four or more persons in any area, which could be invoked to manage street vending if it leads to public disorder”.

JUDGEMENT

The Hon’ble Supreme Court expressly recognized that the street vendors too have a fundamental right to carry out their trade as per article 19(1)(g) of the constitution of India.

However, the court clarifies that such right does not extend to a permanent occupation of any specific place on the streets for the public. The court simultaneously also directed the N.D.M.C. to frame some schemes for the regulation of street vending, which was inclusive of the designated & non-designated zones for hawking, also establishing licensing procedures &ensuring adequate space for pedestrians. The judgment also underscored that the right to trade is subject to certain reasonable restrictions that the authorities can impose in the interest of public order, health & safety.

In Saghir Ahmed Vs. State of Uttar Pradesh the Hon’ble Court had emphasized that preventive detention laws should adhere strictly to the provisions as laid down in the Constitution of India, particularly Article 21.

In Orga Tellis Vs. Bombay Municipal Corporation the Hon’ble court reiterated that any kind of eviction or any removal of the encroachments must follow the due procedure established by law. The Supreme Court emphasized that the right to practice any trade, occupation, or business under Article 19(1)(g) agrees with Article 21 of the Constitution of India.

RATIO DECIDENDI

• The court established that street vendors have a fundamental right to engage in any trade as per Article 19(1)(g) of the constitution of India.
• The court also acknowledged & clarified that there is no such absolute right to occupy a specific area on the public streets permanently.
• The emphasis through the judgment was given on the need for regulation rather than outright prohibiting street vending.

GUIDELINES (IF ANY)

• To ensure that the vendors are operating legally & maintaining public order, the court ordered the N.D.M.C to frame comprehensive and structured schemes for the regulation of street vending.
• The guidelines also called for the identification of specified hawking and non-hawking zones to manage where the street vendors are operating.
• To ensure that the vendors are registered & authorized to trade in the areas designated to them, the court emphasized the need for a clear licensing procedure for the street vendors.
• It was also suggested by the court there should be some regulation to define the types of goods that could be sold & the specific number of vendors allowed in specific areas to prevent overcrowding.

OBITER DICTA (IF ANY)

• The court had emphasized street vending as a means of livelihood for many of the individuals, which highlighted the socio-economic implications of regulating street vending.
• The court also suggested that the regulations framed should be with a compassionate understanding of the circumstances of the street vendors.

CONCLUSION & COMMENTS

The Hon’ble Supreme Court through its judgment had this affirmation that it is the fundamental right of the vendors to engage in trade under Article 19(1)(g) of the constitution of India, also acknowledging their contribution towards the economy and society.

It was also concluded by the court that while street vending is a legitimate activity, it also must be properly regulated to ensure that the public spaces aren’t inaccessible and are safe for all citizens.

In my opinion, without going through all the possibilities about the place where the person carries out his/her business & also how the business is being carried out, the livelihood of the person cannot be snatched away from him/her in the name law unless & until it is a manner causing a problem for the common public & is also not being in conflicting in the eyes, as well as with the provisions of the law. Which as a result should be the top priority to ensure that no one is denied of their fundamental rights under articles 19 & 21 of the constitution of India.

REFERENCES

Important Cases Referred

• Saghir Ahmed Vs. State of Uttar Pradesh
• Olga Tellis Vs. Bombay Municipal Corporation

Important Statutes Referred

• The Constitution of India, 1950
• Indian Penal Code, 1860
• Punjab Municipal Act .1911
• Delhi police act, 1978

ENDNOTES

• https://indiankanoon.org/doc/165273/
• https://indiankanoon.org/doc/1767433/
• https://main.sci.gov.in/jonew/judis/37261.pdf
• The constitution of India (1950), Article 19(1)(g)
• The constitution of India (1950), Article 21
• The Indian Penal Code (1860), section 144
• The Indian Penal Code (1860), section 268

[1]  Section 144; 268, Indian Penal Code, (1860)

[2] Article 21, Constitution of India (1950).