This paper will examine the position of Indians who attempted

to make a living on the streets of Durban as hawkers and flower

sellers. In doing do it will explore a pivotal intermediate phase
in the economic lives of Indians between indenture and urban
industrial wage labour, as well as the role of the local state,
which "scarcely received a footnote in the works of both the
'liberals' and 'revisionists' (social scientists) who dominated the
critical intellectual agenda on South Africa during the 1960s and
1970s." The lack of analysis of the local state has shrouded an
understanding of the characteristics of local state and politics, a
weakness that needs remedying. The activities of Indian
hawkers brought them into conflict with a local government
committed to its white electorate and which passed a myriad of
laws to peripheralise hawkers. The theme is primarily one of
state repression and attempts by Indians to forge an existence in
spite of state policies. There were few instances of government
promoting street trading to provide employment opportunities in
the absence of formal industrial development. Another
dimension to this study is the racialising of politics during this
period. The issues surrounding street trading were framed and
conceived in racial terms. Hawkers turned to educated Indians
and Indian traders, whom they viewed as 'community' leaders, to
intervene on their behalf in their conflict with the state. Politics
was clearly racialised, and this paper will explore the parameters
within which these racialised politics operated.
 INDIAN HAWKER Flower Sellers in Durban

Between 1860 and 1911, 152,641 Indians arrived in Natal as

indentured labourers to work on sugar plantations. In terms of
their contracts they were to work for five years for the employer
to whom they were assigned. Thereafter, they could either
reindenture or seek work elsewhere in Natal. At the end of ten
years Indians were entitled to a free return passage. However,
almost 58% remained in the colony. The Wragg Commission of
1886 noted that "an Indian, drawing the first breath of freedom
after five years of indentured service, will, in almost every
instance, prove unwilling to re-indenture.... His fellow
countrymen will direct his attention to the profits obtainable by
the cultivation of a small tract of land easily procurable on lease,
to the freedom and gains of peddling, and to the dignity and
solid profits of shopkeeping. By 1910 Indians owned about
10,000 acres of land in Natal, while the acreage held by Indian
tenant farmers and landowners increased from 11,722 acres in
1896 to 42,000 acres in 1909. White opinion was divided over
indentured labor. While sugar planters welcomed Indians, other
whites were hostile because of the presence of non-indentured
Indian itinerant hawkers, petty shopkeepers, artisans and market
gardeners who threatened the existing exploitative relationship
of whites with Africans and indentured Indians. Whites
generally viewed the independent economic activity of Indians,
and their attempts to avoid wage labour, very reproachfully.
According to the Clayton Commission of 1909, Indians had
been allowed to remain in Natal after indenture in order for them
to take over the work performed by indentured Indians and thus
eliminate the need to import indentured labour. However, the
Commission noted, "the Natal born Indian will not do the work
of indentured Indians. He considers it too hard, and menial.
They prefer to settle about the towns earning a precarious
livelihood, and many lead an entirely idle and vagrant life."
Indians did not lead an "idle and vagrant life". The transition
from plantation labor to urban wage employment was not linear,
partly because the industrial sector had not yet developed and
partly because Indians made a conscious attempt to avoid wage
labor, or what Rogerson refers to as "hidden resistance" to
capitalist exploitation. Most were self-employed as hawkers and
petty commodity producers. Hawkers of fruit and vegetables
were a feature of Durban life from the 1880s. The produce of
small cultivators was sold by men and women hawkers, known
as "vegetable Sammy" and "Basket Vallas" respectively by
whites, who piled their fruits and vegetables in baskets which
they carried on their heads from house to house each day in
"rain or sunshine, spring or winter..." "Australian" commented
on this invaluable service:

The Indian hawker is a great convenience especially to

the poor white. A rich lady can bowl down to the
 market in her carriage and purchase all her
requirements in the vegetable line for the day, but
where does the poor woman come in who perhaps has
a child or two to nurse at home, besides having to go
through the drudgery of her household duties. To her
"Sammy" is a very welcome sight and a saving of time
and trouble. Her marketing is done at the door and she
hasn't to hurry and scurry away to make purchases.
You can really imagine what the abolishing of the
Indian hawker would mean to poor people living on
the outskirts of the city.
Hawking was an important avenue of Indian employment. It
appealed to Indians because it required little capital or expertise.
Most hawkers sold fruit and vegetables that they bought very
early in the morning at the Indian Market for re-sale during the
day. They formed an important link between the market and the
public, and helped deliver produce to the customer. However,
this brought them into conflict with organised business whom
they undercut in prices, and the local state which saw them as
the cause of pedestrian and vehicular traffic and as constituting a
public health nuisance. The activities of Indian street traders did
not tie in with white ideas of a "civilized" city and every effort
was made to eliminate and restrict their activities. It will also be
seen that organised white trade, local state planners, Africans
and Indians all framed and articulated the conflict in racial
terms. Hawkers formed an "Indian Hawkers Association". Little
is known about this body except that it organised a public
meeting on 1 January 1914 that was attended by Gandhi,
Rustomjee and whites like C.F. Andrews and Polak. £60 was
collected from the Association's "poorest members" for the
Passive Resistance Fund of 1913/1914. At that stage the
president was Kalidas Parshotam and the secretary Parag Doga.
From the beginning hawkers were monitored very strictly by the
state. From 1912 they had take out a licence, which they
considered unfair since they were "already sufficiently taxed'
and "merely ekeing out a living and could not afford licences."
They also felt that their plight had not been "sufficiently and
prominently" taken up by Indian leaders, that the "great men
have not defended their rights to make a living in the country
unfettered." This reference to Indian politicians as their 'leaders'
indicates that even during this early period racial identity was
mobilised in the political arena. Indians existed as Indians in
relation to whites and Africans even though they were
fragmented along religious, language, region and class lines for
other purposes. In addition to bringing in revenue, the licencing
of hawkers enabled the DTC to be selective about who and how
many people were allowed to trade. It was also a deterrent to
those who repeatedly broke the law because they could be
denied a licence. When hawkers paid for their licence the DTC
supplied them with a badge that they had to wear on "their arm
above the elbow, or exhibit on their basket or pack." It was an
offence not to display the badge. It should be noted that the DTC
distinguished between "hawkers" and "pedlars". In 1916 the
annual cost of a "hawkers" licence was £6, which allowed for
the sale of a wide range of goods, and 5/- for pedlars, who could
only sell "South African Fruits and Vegetables". The authorities
took this distinction seriously as can be seen from the case of
Gesset Goolam who had a pedlars licence and was therefore
arrested and charged with contravening a bye-law when he was
caught selling eggs. While the DTC distinguished between
hawkers and pedlars, this paper will refer to both as hawkers
since the overwhelming majority only sold fruit and vegetables,
and this is a term more commonly used in the literature. The
following table shows the number of licensed Indian hawkers
and pedlars in Durban.
Licensed Indian Hawkers and Pedlars, Durban
Year Pedlars Hawkers
1916 1361(joint)
1918 1342 (joint)
1921 1365 (joint)
1928 1358 (joint)
1939 1222 60
1940 1188 61
1943 1248 55
1944 1236 58
Although the Indian population of Durban increased from
17,015 in 1911 to 123,165 in 1949, the number of hawkers did
not increase proportionately. If anything it decreased. This
illustrates just how effectively the licencing procedure was used
to limit hawkers in the CBD. In fact, the Licencing Officer
admitted in 1944 that "this Department does not encourage
trading in the streets and keeps the number of hawkers' and
pedlars' licenses within certain limits." In 1947 the same official
remarked that "there has been a decrease in licences and no new
licences are at present being granted, unless there is a surrender
of an existing licence."
To lessen the competition that hawkers posed to established
trade, a bye-law prohibited them from taking up a "fixed or
permanent stand, station or position, but must be itinerant
vendors of goods." Constant movement meant that they could
not build up a clientele, and limited the amount and types of
goods that they could carry. This remained a contentious
provision as hawkers tended to be stationed in one place and
move a short distance when faced by the law. The Natal
Supreme Court ruled in 1933 that the law required "continual
movement with the goods when it is intended to offer them for
sale." The movement from one's residence to the locality where
the sale was to take place did not cover the requirements of the
law. Further, by "place" the law referred to "something
considerably larger than the area of ground covered by the
licence holder's person and vehicle. It would be a misuse of
language to say that a man travels with his goods when he
moves only a few yards to another such area of a like size…"
Like fruit and vegetable vendors, Indian flower sellers were also
prominent on Durban's streets. Flowers were grown by White
and Indian farmers in Pinetown who cut and bunched their
flowers each morning before making a 20-30 mile trip to Durban
to auction their flowers at the Borough Market between 3 P.M.
and 5 P.M. After purchasing flowers, Indian flower sellers
would sort, strip and re-bunch the flowers at home for sale the
following day. The range of flowers depended on the season but
included daffodils, tulips, gladioli, roses, proteas, carnations and
chrysanthemums. Both Indian and White flower growers sold
their flowers at the white Borough Market where they were
bought by whites and Indians.
As far as flower sellers are concerned, a 1915 bye-law treated
them as ordinary hawkers and barred them from placing their
flowers in a specific spot. They were also compelled to be on the
move. Flower sellers wrote to the Mayor in 1915 that hawking
flowers in the ordinary way was difficult because water had to
be carried around to keep the flowers fresh. They requested
permission to place their "baskets of flowers on the edge of the
water drainage." Permission was refused because the Chief
Constable reported that "there has already been considerable
complaints made by European florists…. It would be highly
injudicious to deviate from the bye-law, especially as regards
Indians who are prone to take advantage of any little
concession." Flower sellers continued to petition the DTC on
this issue and, in 1921, were finally allowed to place their
baskets on the pavement kerb in the West, Gardiner and Church
Streets fronting the Post Office for one day in each week. This
was the first introduction of fixed stands for flower sellers. The
Africans' League objected to this "privilege":

The Gardiner Street frontage of the Post Office is one

of the most valuable business sites in the borough -
and a spot where the presence of 20 Indians with their
baths and baskets filled with flowers causes an
obstruction in a street where the traffic is often
congested to a dangerous degree. If any stands are
permitted in this area they should be allotted to
 European ex-soldiers now dependent on charity or the
hard work of casual labour to avoid starvation.... The
flowers that the Indians sell are not grown by them,
but by Europeans, and these Orientals make a profit of
200% to 300% when retailed at their prices. In view of
the wide-spread unemployment amongst our deserving
White population they should be allotted to ex-soldiers
now dependent on charity. The Pea-nut vendors
should be dealt with on similar lines, as also the Fruit
hawkers who can be seen squatting with their dirty
unwholesome products at various points in the
borough, causing assemblages of natives and Indians,
and the littering of the sidewalks and gutters with nut-
shells, and fruit rinds. Compel them [Indians] to vend
goods from house to house only, or allot them
positions where they will not be attended by danger of
disease, accident or annoyance to Europeans.
The Licensing Officer, however, believed that whites could not
make a living from selling flowers. He pointed to an incident
where he had allowed three returning soldiers to hawk flowers
without a licence and had even obtained the flowers for them:
"In no case were the men able to knock a living." An additional
reason for allowing flower sellers to continue was that that they
"give a touch of colour and beauty to an otherwise dull street."
In October 1924 white florists petitioned the DTC to put a stop
to street flower selling "which interferes with our legitimate
business for which we pay rent and rates for the use of our
shops. The competition is unfair in every way…. Those who
desire to sell flowers should do so in shops which are rated by
the Corporation…" In response, Councilor Kemp influenced the
DTC to remove flower sellers from Gardiner Street and compel
them to observe the law requiring hawkers to be perpetually
moving. The removal of flower sellers from Gardiner Street
yielded a response from white growers who, in a petition to the
DTC in December, pointed out that the bulk of their flowers had
been sold to Indian flower sellers with stands in Gardiner Street.
With the closing of the stands the public was not prepared to
"spend the time to attend morning sales at the Market." This
resulted in a drop in flower sales. The petition also mentioned
that although Indians dominated the flower trade there was
"open competition": "Europeans decline to compete because of
false pride… this should not be sufficient reason to cause serious
damage to the Flower Growers." It is ironical that white farmers,
who were otherwise anti-Indian, should intervene on behalf of
Indians when they were affected economically. The Market
Master verified the drop in sales. Between May and October
1924 the average sales of flowers was £1571 per month. In
November, after the restrictions had come into effect, sales
dropped to £1096. The Master remarked that many "of the
growers curtailed their supplies, some have even ceased to
supply us…" In view of this, Councilor Benson requested that
the DTC remove the restrictions because the flower growers,
flower sellers and public were losing; only a few florists
benefited and even "this is doubtful." In January the DTC
rescinded the original decision and allowed Indians back in
Gardiner Street until a new site was prepared for them outside
the Borough Market on Railway street. The new site was opened
on 2 June 1925 and comprised of 24 stalls, two of which were
occupied by whites. Even this did not satisfy whites. J.
Hammond, for example, complained in 1930 that:
 For ages and ages we have had Indian flower sellers.
They are not the same ones I have seen during the past
30 years. As the Good Kind Durban Corporation allow
those poor Indians free rent, I presume they have made
a fortune, and unlike the whites, have retired before
the age limit to make room for the generations
following. Now what about the Durban Corporation
giving notice to those Indians to move on because
there is now too much motor traffic at that corner…. It
comes a bit awkward to those poor walking Whites
who have to jump over flowers, banks and Indians to
safety. I have seen Durban's Police looking on, but not
doing anything - I wonder why?
Why? Because flower sellers were useful to whites for a number
of reasons. First, they were aesthetically appealing and added
beauty to the city. The director of the Durban Publicity
Association remarked that "one of the many attractive sights that
meets the eye of the visitor to Durban, particularly those arriving
from overseas, is the display of bright flowers on sale by Indians
in front of the Borough Market." Second, flower sellers were an
outlet for white farmers to dispose of their flowers and for white
citizens to purchase flowers without having to go out of their
way. Mrs. D. Wood of Florida Road, for example, wrote to the
DTC that "in these days of slogans such as "Say it with Flowers"
I regret that Indian sellers have been ordered away from selling
in Gardiner Street. The sellers were always very
polite…Trusting that the "old order" may be restored." Third,
because their numbers were very small flower sellers could be
tolerated. Whites only tolerated Indians when it suited them;
otherwise they were determined to eliminate them as a factor in
Durban. For example, in March 1928 S..M. Ponting and 17 other
white flower growers petitioned the DTC to place the flowers of
Indian and white growers separately at the market where they
were sold. The Markets and Abbatoir Committee advised that
this would lead to "results of a disastrous nature" since the
largest purchasers of flowers were Indians. To "alienate the
largest buyers of flowers is to invite retaliation, a boycott would
recoil on the petitioners." Instead the DTC decided that when
flowers were put up for sale the name of the grower would be
announced so that buyers would be aware whose flowers were
being sold and could buy "in the direction in which their
sympathies lay." This incident serves to illustrate the racism of
white growers which was being manipulated in this instance to
achieve an economic advantage over Indians.
White traders were also opposed to hawkers. In January 1915
McIntosh & Co. complained that Indian trolley and cart owners
in Commercial Road were a "nuisance" because they used the
area as a resting place for animals; "the odour emanating
therefrom is both objectionable and unhealthy." According to
the Inspector of Nuisances 15 carts had been placed in a "single
line" from Grey Street to Albert Street all along Commercial
Road since 1903. These were hired from the DTC. Until 1915
there had never been a complaint which "gave it a measure of
public recognition." As McIntosh's office was 60 feet from the
animals, and Indian business owners in the area did not think the
smell "affects their business" the Inspector considered the
"removal of the stand a harsh proceeding." When McIntosh
persisted with his complaints, the Chief Constable reported that
the stand was situated in "an entirely Indian quarter and
eminently suited for the purpose … the compalint of McIntosh is
rather unreasonable." The DTC decided not to take any further
action in this matter. This was not the end of the matter as
McIntosh took this issue up with Councilor Hooper who
confirmed that there was a "strong smell". Since an alternative
site could not be found, the DTC sanctioned the spending of a
large sum of money to improve the sanitary condition of the area
to reduce the smell. This early example shows the influence that
whites exerted on local politics. Whenever they complained
Councilors reacted and introduced new restrictions on Indians.
Hawkers used inventive means to get around the law. Hassan
Ebrahim, for example, placed his goods in a cart that he
positioned in an "old, dilapidated ricksha shed" in Queen Street
where he paid a daily rental to the owner. He was charged for
not being mobile, and accused of running a "business" instead of
hawking. The magistrate visited the site and ruled that while the
defendant conducted his trade like a private retailer, in that he
had a specific spot and paid rent, he did not have "private and
proper accommodation" and found Ebrahim not guilty, but
warned him not to repeat this practice. Hawkers were also
innovative in their attempts to circumvent the requirement that
they be mobile. The Acting Licensing Officer reported in 1916
that many hawkers were using a "peculiar form of handcart"
constructed of two pieces of wood, five feet long, between
which were narrow strips of wood. These acted as receptacles
for "four or more" baskets of fruit and vegetables. The handcart,
mounted on two wheels, was "unsightly" and posed a danger to
motorists and pedestrians "as hawkers do not care how or where
they move or leave their carts when selling their wares."
However hawkers could not be charged under existing
legislation. As a result of this report, the vehicle bye-laws were
amended so that hand-carts had to be licenced at a cost of £2.10
per annum. Most hawkers could not afford this fee and this
practice gradually decreased. A visitor from Johannesburg
described his experience of hawkers during a visit to Durban
thus.

The heat was intense, the air drowsily sweetened with

the humid smell of over-ripe fruit… Those Oriental
hawkers! I might have been coated with molasses.
They might have been famished flies. They swarmed
around me. They all talked at once. They jostled one
another. They gesticulated. They chewed garlic. Each
one declared the prices of his wares cheaper than those
of all the others.... They implored me to buy. "How
much?" "Half Crown-very cheeep". "Good Heavens,
you can get beads cheaper than that in Johannesburg".
It was a fatal retort to make. There was a chorus at
once, Phew, Johannesburg - o-o-oh-you Johannesburg,
eh! Plentie money, eh plentie?"… These old women
on the street were, to me, the most interesting. There
was something extraordinary about them. They were
at once sinister and pathetic. They appeared to be
scowling unuttered impreciations at everyone who
passed, to be brooding incessantly over dark thoughts,
to be meditating uncanny evil. They were living
embodiments of a hopeless life.
With many hawkers hovering below the poverty line, families
resorted to the use of child labor to supplement family incomes.
Children were used to sell nuts and were on the street until as
late as midnight. A perturbed Chief Constable felt that "when
children of this age are employed at this work their associates
and surroundings are bound to have a most injurious affect on
their character. In fact they are certain to grow up evil-doers."
The DTC banned children under 13 from street trading. Parents
were to be fined £10 or 30 days imprisonment if their children
were caught. Although the Children's Act of 1937 raised the age
limit to sixteen, this did not resolve the problem. The use of
children was a feature throughout this period. The Chief
Constable reported in 1941 that "during the last ten years Indian
juveniles between the ages six and ten hawk around Grey and
Victoria Streets selling pencils, shoe laces, razor blades studs,
etc." The problem was that the parents fled as soon as the police
arrived and the children refused to divulge their names and
addresses. This made it impossible to punish the parents.
Another investigation revealed that adult Indians employed by
the Central News Agency to sell newspapers employed a total of
58 boys under the age of 14 who worked on Saturday evenings
near cinemas and clubs until after midnight selling newspapers.
As the Durban Juvenile Affairs Board and the Union Probation
Officer advised the Town Clerk that any legislation was doomed
to failure until compulsory education was introduced for Indian
children, no further legislation was introduced.
In April 1928 19 white-owned retail businesses in West, Field,
Pine and Gardiner streets petitioned the DTC that they were
"very seriously prejudiced by the indiscriminate and unchecked
manner in which the Indian Hawkers are now carrying on
business." They protested that as their rents, overheads and
living expenses "are very high" compared to hawkers, the latter
should be prohibited from operating in "the same neighbourhood
where there are established European businesses". The Chief
Constable reported that part of the reason for the failure to
eliminate the problem of hawkers taking up a fixed position was
the difficulty of getting a conviction because proof was needed
that the offender had stayed in one position for an extended
period. As inspectors and their vehicles were well known to
hawkers, it was difficult for inspectors to keep observation for a
lengthy period.
Responding to this complaint by white traders the Licencing
Officer reported that hawkers did not fall under his jurisdiction
because they obtained their licence from the Receiver of
Revenue. Until 1925 licences had been issued by the DTC and
hawkers were the responsibility of the Licensing Department.
This changed with the Licenses Consolidated Act No. 32 of
1925, which came into force on 1 January 1926. Thereafter
licences were issued by the Receiver of Revenue, a central
government office, after a Certificate of Authority had been
obtained from the Licencing Department, a municipal office.
This latter proviso was to allow the DTC to exercise a measure
of control over trade by virtue of being able to refuse a
Certificate to hawkers. The Receiver of Revenue relied on the
Licencing Inspector and police to eliminate unlicenced hawking.
This was impossible because one inspector covered the entire
area, while police officers were under the impression that this
was a Municipal affair and outside the scope of their duties.
Although the Licencing Office did not have a legal
responsibility to control unlicenced hawking, inspectors did
intervene but were ineffective because they lacked the power of
arrest. When inspectors came across unlicenced hawkers they
gave the names of offenders to the Receiver of Revenue to
institute legal proceedings. In most cases Indians provided
fictitious names and addresses. The Licencing Officer felt that
the problem could only be solved by adding hawkers' licences to
the list of municipal licences and giving the Municipality the
power to control both licenced and unlicenced hawkers.
Although the DTC had no legal basis for making a Certificate of
Authority a pre-requisite for a licence, it enforced this regulation
for fourteen years until a Court ruled in June 1939 that this bye-
law was ultra vires of the Act. The Town Solicitor also advised
that there was no legal basis for making a Certificate of
Authority a prerequisite for a licence and concluded that "the
sooner the Corporation gives up its efforts in this direction the
better, because I am afraid it is simply kicking against the
pricks." The Licencing Officer considered it "absurd " that the
DTC could not have "full measure of control for regulation,
inspection and control of licences" and advised the Town Clerk
to introduce legislation to put the "position on a proper legal
basis." The DTC was finally given the legal clout to insist on a
Certificate of Authority by Ordinance 19 of October 1942. This
did not solve another of the DTC's problems, namely that
although it had to incur expenses to monitor trading, fines were
paid to the Receiver of Revenue which deprived it of income. In
fact, when the law was passed in 1925 the Mayor remarked in a
"Municipal Notice" in the local press that there was "no
arrangement as to compensation for expense, for the benefit of
the Provincial Revenue." The only compensation for the DTC
was that it could charge ten pence per licence issued, which was
an additional expense for poor hawkers.
That racist practice against Indians pre-dated apartheid is also
illustrated by the fact that as a result of complaints by whites,
the Finance Committee instructed the Licencing Officer to erect
barriers in the Licencing Office to provide separate queues for
whites and Blacks. The Licencing Officer responded on 11
January 1946 that although there were no barriers in place
"every endeavour is made to keep the Europeans separate from
the non-European." In fact, an official was "assigned the duty of
attending to the queues and it is his duty to see that Europeans
are kept separate from other races." However the Finance
Committee was not satisfied with this arrangement and formal
barriers were erected in January 1946.
Whites continued to protest against Indian hawkers. In
September 1929, the African Theatres Limited complained of
the "unpleasant state of affairs" created outside its theatres by
hawkers: "We do not think that it is necessary to stress the fact
that our company pays your Council heavy dues by way of rates,
light, water charges, etc. and that we employ in our Tea Rooms
white staff to sell such commodities." The manager also
complained that the peanuts and toffee apples sold by Indian
vendors polluted their theatres because patrons threw dirt on the
floors. In February 1929 a petition by W.B. Raymond and ten
other White-owned fruit and vegetable stores complained that
hawking by Indians in the vicinity of the Borough Market
"seriously prejudiced" their businesses:
 These people are allowed to go round to the various
offices, banks and other business premises in the
Town, and also waylay pedestrians. As these hawkers
have no expenses in the way of rent, wages, etc. we do
not consider it fair trade competition, and therefore
request that they should not be allowed this freedom in
the business centre of Town.
When asked for his opinion the Chief Constable reported that
the police were doing their best but the "paltry nature of the
contravention" and the "elusiveness of the movements" did not
warrant the "special police vigilance that the detection would
require; especially in view of the more serious crime which has
to be attended to by the small force at my disposal."
Commenting on these complaints "The Natal Advertiser"
remarked that hawkers did not only pose an economic problem,
but were a public nuisance:

The petitioners have an extremely strong case for

relief from a public nuisance. The community needs
protection against a form of service which ignores
ordinary observances of hygiene and cleanliness. It is
a public nuisance to be pestered by itinerant vendors
…. By persistent evasion of the health by-laws it also
verges on a public danger…. Whites vehemently
opposed Indian street trading. The freedom of private
enterprise does not necessarily mean urban hordes of
itinerant hawkers should be allowed to congest busy
thoroughfares. Liberty ends where licence begins.
The editor of "Indian Opinion" argued strongly against any
action:
If the hawkers are prevented from plying their trade in
Pine Street, where will the line be drawn? If the
precedent of "protection" for one group of traders
alone is granted there is no apparent reason why half a
dozen other groups should not be given protection
against competition they might describe as unfair.
However the DTC had decided that since hawkers could not be
stopped "as the law stands at present… to secure better control
of hawkers and to reduce the present inconvenience and
annoyance" the DTC would request the Provincial Council to
introduce new legislation. DTC solicitors advised that the
Durban General Extended Powers Ordinance of 1929 made
provision for introducing by-laws to restrict hawkers; while
hawking in offices and business premises could only be stopped
by "the occupiers of these premises." The NIC pleaded with the
Town Clerk that legislation would "affect in great measure the
very poor members of our community who earn their livelihood
by hawking and peddling, and who are because of their poverty
least able to protect their rights and interests; we appeal to you
and to your Council that consideration of these bye-laws be
postponed." Another appeal by the NIC to "represent the case of
these poor Indians prior to the confirmation of these bye-laws"
was ignored and the new regulations became law in April 1930.
Hawkers were prohibited from areas where white trade
predominated: West Street between Gardiner and Grey Streets;
Pine Street between Railway Streets and Field Streets; Gardiner
Street between Smith and Pine Streets and lower Marine Parade
between Beach Road and Depot Road. What these exchanges
illustrate is that the battle lines were drawn along racial lines.
The hawkers were Indians and as the "Natal Advertiser" pointed
out "whites vehemently opposed Indian street trading." On the
other side, the repression of Indian hawkers became a
'community' affair. The middle class "Indian Opinion" and
trader dominated NIC intervened on behalf of their poorer
members of the Indian community.
The "Indian Opinion" remarked that this legislation was a means
to "deprive the honest livelihood of the poorest section of the
Indian community, the majority of whom are women." The total
value of their goods being "hardly thirty shillings, how can they
affect shopkeepers particularly if, as the law requires, they have
to keep moving?" There were 45 hawkers in this area, mainly
women, who each only made between three and five shillings
per day, "so how can they constitute a threat or nuisance to
pedestrians, motorists or shopkeepers." The effect of the law
would be to increase the number of unemployed. The editor was
surprised that "lady councillors did not raise their voices for the
sake of women hawkers".
Complaints against Indian hawkers persisted and it was not
confined to whites. Even African traders were boisterous in their
outcry against Indian hawkers. In 1920 the overseer of the native
Eating House complained to the Native Affairs Department that
"there is a tendency towards friction between the Natives and
Indians on account of their [Indian] occupation in the mornings
of our verandah, and an old standing sore exists over the ground
on which the present Fish Market stands." In February 1930, the
overseer of the Victoria Street Native Market wrote to the DTC
that the 17 tenants of stores in the Native Market wanted the
police to remove Indian hawkers operating outside the Market
who "take away a certain amount of trade which would come to
them in the ordinary way, were it not for these people." The
Chief Constable replied that police were vigilant in this area and
had convicted 35 individuals in that month. The problem was
that hawkers stayed stationary for 30 minutes and moved to
another spot in the vicinity. Magistrates considered this a
reasonable time period and were reluctant to prosecute. The
Native Advisory Board petitioned the DTC in January 1931 to
designate roads in the vicinity of the Native Meat Market in
Queen and Victoria Streets as restricted areas. A Mr. Ngcobo
complained to the Native Advisory Board in 1948 that most
hawkers in Dalton road were Indians. He felt that since the
customers were African, only Africans should be allowed to
hawk in the area. These are not isolated examples. Africans
believed that Indians were receiving favorable treatment in
relation to themselves and as the competition for sparse
resources intensified, it was defined in racial terms. What we
have during this early period is that tension and differences were
conceptualised in racial terms. While the local state responded
positively to white complaints, the grievances and objections of
Africans were ignored. This added to the frustration of Africans.
Tension built up gradually until it exploded into the 1949
Indian-African riots.
In February 1931 the Chief Constable complained that because
only a portion of West Street was prohibited, hawkers
congregated in the unprohibited area around the Post Office
causing "considerable traffic trouble," a problem which could be
resolved by extending the prohibited areas. The Chief Constable
also mentioned that it was becoming more difficult to prosecute
hawkers. In a recent case, when hawkers were charged with
obstruction, the magistrate said that he could not convict unless
those members of the public who had been obstructed were
brought to court to give evidence. This demotivated police from
arresting offenders. As a result of this report the following areas
were added to the prohibited list in July 1931: that portion of
West Street between Gardiner and Aliwal Streets; Queen Street
between Grey Street and Cemetery Lane; Cemetery Lane
between Queen and Brook Streets; Brook Street between
Cemetery lane and Victoria Street and Victoria Street between
Brook and Grey Streets. In October 1931 the NIC petitioned the
DTC on behalf of nineteen hawkers who had been operating in
the area now prohibited. Two of the petitioners were widows of
Indian men who had died in East Africa during World War One,
while another three had themselves served in the war. They had
all been in the area for over a decade. The new restrictions had
caused "great hardship" to the petitioners, most of whom were
"married men with large families." On the advice of the
Llicensing Officer who felt that to allow these hawkers to
remain would be to "allow Peter to rob Paul" because they
would affect the business of legitimate traders, the DTC did not
depart from its new laws.
This legislation served to restrict and concentrate hawkers to
areas where Indian trade predominated. The addition of areas
like Queen Street, Brook Street, Victoria Street and Cemetery
Lane was not due to the DTC seeing to the needs of Indian
traders who predominated in this area. Rather it was an attempt
to protect the Indian Market which was an important source of
revenue for the DTC. Not surprisingly, M. Lall and 7 other
Indian traders of Victoria street complained that since "you
brought the Hawkers in near our shops our business has
suffered." In September 1931 R.B Poley and "other traders" of
Victoria Street requested the DTC to send the hawkers "back to
where there are no stores nearby." The Licensing Officer had a
"great deal of sympathy with these petitioners. The action of the
Council in closing certain streets to hawkers accentuated the
competition in other streets and I know that they are feeling the
competition very badly." The DTC was resolving the problem of
whites by restricting areas where white traders predominated.
But it was pushing these hawkers into Indian areas, as if Indian
traders did not suffer the same problems as their white
counterparts. The DTC clearly viewed the situation in racial
terms because it did not expect Indian traders to complain about
Indian hawkers.
The action of the DTC also accentuated the dual racial CBD
comprising of a white area in the image that planners had of the
'beautiful' city, and another where Indians could exist in
conditions which did not quite match up to the ideal, but which
was tolerated because Indians were involved. A racially
segregated urban environment existed in Durban long before the
introduction of formal apartheid in 1948. When free and
passenger Indians first began establishing stores in the CBD in
the 1870s they could not compete with the established white
CBD and built their shops and shacks on swampy land at the
northwestern periphery of the white CBD. The "Indian" and
"white" CBD's impinged as they expanded. The 1897 Dealer's
Licence Act was used to segregate Indian traders in central
Durban, resulting in the racial and structural duality of the CBD.
As the Licencing Officer himself pointed out "there can be no
law on the Statute Book which gives such arbitrary and
uncontrolled powers as does the Act of 1897…. Innumerable
appeals have been taken. The Town Council has generally
supported me, and in thirty years no decision of mine has been
reversed by the Supreme Court." The use of this law to
systematically and methodically segregate Indians was
acknowledged by G. Molyneux, Borough Licencing Officer
between 1903 and 1934. According to Molyneux:

The Durban Licensing Department has steadily

worked to a definite policy over a long period….
Thirty years ago when I took control of the Licensing
Department, and only seven years after powers of
control had been granted to it by Act 18 of 1897,
overtrading in Durban was marked. It was then that we
first established the policy which has since been
pursued. Indian traders were indiscriminately mixed
with Europeans all over the town, large areas of which
were entirely given over to Asiatic trade, nor was the
central portion of the town any different to the rest. It
seemed undesirable that the class of shoppers which
mainly avails itself of Indian shops should be scattered
all over the town,… as a result of 30 years patient
work and adherence to this plan, the Asiatic licenses
which then were considered a menace have ceased to
do so. Today the so-called Grey Street area and
Umgeni Road are the recognised tading areas for
Asiatics.
 I have tried to divide the town into areas where the
various types of customers can trade,… spread over a
number of years it has resulted in the segregation of
races and traders. For example, the Council recently
opened a new Indian Market on Lancers Road. I have
steadily refused new licenses there, for all my
experience shows that Indian penetration does not end
with the opening of a new store. Every new license
granted in an area to an Asiatic will mean the eventual
influx of more Asiatics until they gradually extend.
During the period under review there was continuity of policy
because those making the decisions occupied their positions for
extended periods. Molyneux was Licencing Officer from 1903-
1934, his successor B.R. Lagerwell had joined the department in
September 1904, Chief Inspector Roger Hunter worked between
1903 and 1928, Inspector Sidney Eales joined in 1907 while
A.E. Constable, Inspector of Motor Vehicles, had joined in
1908.
New restrictions did not mark the end of hawkers' troubles
because white traders in unrestricted areas continued to
complain. In August 1933 eleven white traders in Field Street,
between West and Pine Streets, complained that "intending
purchasers were accosted and waylaid by the hawkers about
whom we complain." This area was added to the list of restricted
areas, as was Smith Street between Aliwal and Grey Streets,
Church Street between Smith and Pine Streets, Church Lane,
Mercury Lane, Murchies Passage and Greenacre's Passage. The
Colonial Born & Settlers Indian Association (CBSIA), a
political body formed by educated Indians, took up the cause of
poor Indians. The CBSIA complained that the "increase in areas
banned for hawkers" amplified the difficulty and the "numbers
of unemployed whose problem is already very acute. The DTC
is not justified in weeding these people off the streets." Protest
was in vain and the prohibited area continued to increase in
response to white complaints. In June 1938 Victoria Street
between Brook Street and Warwick Avenue, Warwick Avenue
between Victoria Street and Berea road, and Berea Road
between Warwick Avenue and Berea road station were added to
the prohibited list; The NIC informed the Town Clerk that the
new bye-laws were viewed "with concern … as a large number
of Indian women hawkers find themselves in a predicament.
These women are mostly poor and hawking is the only means of
their livelihood. We appeal to the City Council for the repeal of
the laws." This appeal was in vain. The DTC continued to take a
hard line against hawkers. For example, when about 200
hawkers failed to renew their licences at the end of 1938,
something that happened every year, the Licensing Office
decided that these would be treated as new applications which
meant an additional charge of 15/-. The CBSIA considered this
injunction a "distinct hardship - the creation of an unnecessary
expense which these poor people can ill afford. They are
ignorant and hitherto no objection was taken to their applying
for their renewals late." The Licensing officer reported that of
1276 licenses issued the previous year, 1013 had renewed their
licenses within the specified period, which suggested that
hawkers were aware of the regulations and failure to apply was
due entirely to neglect. Since the law "makes no discrimination
between those who are neglectful and those who are ignorant,"
the Licensing Officer did not want to deviate from the bye law.
The Town Clerk met with the CBSIA but upheld the ruling.
During the 1940s complaints against Indian hawkers intensified.
In July 1940 the Durban Tea Room Owner's Association played
the public health card when it complained that Indian hawkers
were supplying foodstuffs in "unhygienic conditions". It accused
them of storing "food in their own sleeping room prior to their
daily rounds. To allow such a practice at a time when many of
our doctors and nurses are on Active Service is nothing short of
a crime on the part of those responsible." No action was taken
on the advice of the M.O.H. who said that the "hygenic
objective was being used as an excuse for indulging in a trade
war…." Complaints continued unabated and from a variety of
sources. In September 1942 the Adjutant, South African
Women's Voluntary Air Force, Natal Command, complained
that when troops were coming off their boats, "Indian women
and fruit hawkers are charging ridiculous prices for fruits….
Troops just landing do not know the market value of local fruit.
Surely something can be done by the City Police to stop this
profiteering by a certain section of the Community?" The Chief
Constable advised the Town Clerk that the police could not take
any action because the price of fruit was not controlled. In July
1942 Colonel Sherwood of the Imperial Forces Transhipment
Camp requested that the Town Clerk prevent Indian hawkers
from selling fruit at gates of the camp because they "grossly
overcharge and the quality of their wares constitutes a grave
menace to the health of Imperial troops who are in transit at the
camp."
When S. Naidoo applied to the Town Clerk in 1942 for
permission to hawk fruit close to Mitchell Park, the Chief
Constable informed the Town Clerk that since January 1939 the
Durban Women's Municipal Association had complained on
many occasions that Indian hawkers littered the entrance to the
park. As a result two "Native" constables were placed on special
duty every Saturday and Sunday to prevent littering. As the
situation would be "exacerbated" by the granting of a licence,
the application was rejected. In March 1943, 24 Indian women
hawkers selling fruit on vacant land on the West side of the
railway near Victoria Street requested permission to stand in a
fixed position with baskets because the density of traffic made it
impossible to move constantly. The Licencing Officer advised
that he had refused these hawkers licences in 1939 because they
left "refuse comprising banana skins, citrus skins, and old papers
and litter lying about" but the DTC had overturned his refusal.
He wanted the request refused because these hawkers created a
'nuisance', allowing them to take up a fixed position was
contrary to law and would set a dangerous precedent, and it
would impact negatively on the business of the Market.
Flower sellers were not spared the new protest by whites. The
Market Master reported in November 1935 that a deputation of
whites had complained that Indian flower sellers were at an
advantage over flower sellers inside the Borough Market
because of their excellent location, the fact that they could trade
all day, and their low rentals. The Master agreed with this and
recommended a rental increase of 400%. A joint deputation of
the Natal Indian Congress (NIC) and flower sellers met with the
Town Clerk on 14 February 1936 to discuss this huge increase.
V. Pather, speaking for the delegation, pointed out that on
average flower sellers made a profit of between £4 to £10 per
month. The new rentals would put most of them out of business
and also affect Indian flower growers whose flowers were
bought mainly by Indian flower sellers. The delegation failed
because the Committee decided to impose the increase by a vote
of 3 to 2. Rent increases and restrictions on the areas in which
they could trade made it very difficult for flower sellers to
survive economically.
In March 1939 the Market Master recommended that the flower
sellers be moved from Railway Street and into the market
extension in Warwick Avenue. While this was supported by the
Markets and Abbatoir Committee, the Finance Committee
granted flower sellers a reprieve and ruled that they could stay
where they were "at the pleasure of the Council" until further
notice. Flower sellers continued to attract criticism. J. Griffin of
the Horse Shoe Hotel considered the flower sellers "an eyesore
to Durban…. Stallholders can be correctly described as unkempt
and slovenly in appearance and towards the end of the day,
when under the influence of liquor, they are abusive." A.
Williams of the Durban Publicity Association replied to Griffin
that his opinion was "not shared by most people. The beautiful
display of flowers is a joy to the thousands who see and buy
them and are regarded as one of the sights of Durban." For once,
even the Chief Constable was on the side of flower sellers,
reporting that he had "never seen any Indian intoxicated or dirty
or unkempt…. The area is kept clean by the Indians and all
rubbish is placed in drums provided by the Corporation. I have
personally seen the stallholders, after a dusty day, swilling the
area concerned with water from a trough, thereby making sure
that the area is left clean."
Flower sellers adopted aggressive selling techniques to
overcome the twin handicaps of limited stands and confined area
in which they had to operate. They employed additional labour
to sell flowers beyond the limits imposed by fixed stands. The
Durban Florists, Nurserymen and Seedsmen Association
complained in August 1944 that Indians were hawking their
flowers illegally in prohibited areas and going from office to
office to sell flowers. Some had even hired rooms in
Commercial Road where they made bouquets and wreaths, thus
"encroaching on the legitimate business of the Florists of the
City who pay heavy rentals and employ a considerable amount
of European labour." The police were powerless because flower
sellers posted one man at the corner of a street with a basket of
flowers and another as a "lookout". As soon as a constable
approached a signal was given and both men disappeared. While
there had been some arrests, this was not effective because of
the "small amount of the fine." The Chief Constable agreed that
this was a problem and pointed out that 41 Indian flower
hawkers had been charged with hawking in prohibited areas in
West and Smith streets in the period 1 January 1943 to 28
August 1944. He also remarked that because of the "look-out" it
was difficult to apprehend hawkers with uniformed police;
plain-clothe African police were being used. Since the fine did
not act as a deterrent, it had been doubled. Further, while flower
sellers admitted that the rooms in Commercial Road were
storerooms, there was no conclusive proof that they were used to
make wreaths and bouquets.
Following complaints from the Durban Publicity Association in
1948 that the awnings in Railway Street were old, the Town
Clerk personally visited the area and agreed that they were in
"bits and pieces and very unsightly" and needed replacing.
When the awnings were replaced, the Durban Publicity
Association thanked the Town Clerk: "the awnings have now
been renewed and are a great improvement to this particularly
colourful area." The story of Indian flower sellers shows that the
DTC was willing to tolerate Indian street traders who served
white needs and added beauty and colour to the streets. Where
this was not the case, they acted ruthlessly to stamp out street
trading, as was the case with hawkers of fruit and vegetables.
Durban's reputation for effectively controlling its streets vendors
was well known throughout Southern Africa, hence the
Bulawayo municipality wrote to the Town Clerk in 1942 to
"assist the Council" in drawing up measures to control street
vending in Bulawayo. After explaining the various laws the
Licencing Officer added that "it should be pointed out that the
Authorities in Natal have powers that do not exist in the other
Provinces of the Union and there is clear measure of control
over traders generally. The Powers that exist appear to work
very well in the best interests of all concerned."
Indians did not simply accept the laws without resistance. For
example shortly after the DTC declared "Lower Marine Parade"
a restricted area in 1945, an Indian hawker named G. Sookdhaw
was fined for hawking on that street. Sookdhaw served
summons on the Chief Constable on the grounds that "there is
no road with such a name." The Legal Adviser considered this
an "embarrassment" for the DTC because this area was never
"specifically given this name by any resolution of the City
Council". However it was "generally" known by this name and
was marked such on the official map of Durban. The Legal
Adviser suggested that a member of the City and Water
Engineer's Department be called to testify to this effect.
However, the Court did not accept this and the bye-law was
declared void for vagueness. The DTC rectified this by officially
approving the naming of the thoroughfare "Lower Marine
Parade" and including this as a prohibited area in December
1945.
By the end of the Second World War the tide had turned against
hawkers. White traders and the local state were no longer
willing to tolerate them. Even the last few remaining
unrestricted areas were attacked by whites. The Station Master
at Berea road, for example, complained in July 1948 that Indian
hawkers were "continuously creating a nuisance in Brook
Street…. The whole vicinity is strewn with dirt, bad fruit, straw
and filthy papers… which is most unhealthy and unhygenic. I
have on many occasions observed that passengers, when
hurrying for trains, slip on banana skins and many of these
passengers have fallen…. The entrance to the station near the
parcels office is on some days blocked with these hawker carts."
When police arrived the hawkers would move away for a few
minutes but return as soon as the police departed. The Station
master wanted Brook Street to be declared a prohibited area. G.
Viljoen, a Stableman in the Animal Transport Department of the
Municipality, who lived on municipal premises in Brook Street,
also complained that hawkers' activities left the street "in a
disgusting condition." Aside from the health point of view, the
hawkers presented a danger to the public: "The barrows are very
ramshackle and made up of bits and pieces. Many are in the
charge of lads in their early teens or women who have no
knowledge of the rules of the road. With a number of "stalls" (I
refer to those that are stationary nearly all day) and moving
barrows, wobbling all over the place, it is a mercy that a serious
accident has not yet occurred.
Over time the restricted areas became larger and the movements
of hawkers were severely restricted as the DTC tried to contain
hawking to levels acceptable to whites. Hawkers were
peripheralised from the best trading areas and vigilantly
monitored. In 1943 when the Chief Constable complained that
the number of hawkers operating outside the Indian Market had
increased considerably, Warwick Avenue between Alice Street
and the road north of the City Market was prohibited. In August
1944 as a result of further complaints by the Chief Constable the
following areas were added to the prohibited list: Cathedral
Road betweenWest Street and Pine Street, Davis Lane between
West Street and Saville Street, Alexandra Street between West
and Smith Streets, Russell Street between West Street and
Victoria Embankment, Aliwal Street between Pine Street and
Victoria Embankment, Point Road between West Street and
Smith Street and Brickhill Road between West Street and Pine
Street. In December 1945 the following areas were prohibited:
Lower Marine Parade between West Street and Somtseu Road
and West Street between Gardiner Street and Lower Marine
Parade.
Notwithstanding this, many whites still felt that the action of the
DTC was indecisive. Even the City and Water Engineer, H.A.
Smith joined the chorus of opposition to hawkers complaining to
the Town Clerk that the activities of hawkers results in "litter
and continues despite persistent efforts by cleansing officials….
Hawkers are a great deal of labour is wasted and unsightliness
created by their activities in various areas of the City." Smith
wanted action against hawkers "intensified" by the following:
refuse licences to those guilty of contravening bye-laws, renewal
of licences be restricted, restrict operational areas, and stop
semi-permanent stands. Roy Albert of Shirley Brothers felt that
the police and Licensing Department were only acting because
of the "numerous complaints we have made…. We also feel that
this matter is still not being pursued with the vigour that it
deserves. We still find hawkers plying their trade in all parts of
the City. The time has now come for a drastic reduction in the
number of licenses issued so that business houses like ourselves,
who pay standard wages and contribute considerably to the City
Treasury may have some protection."
The Acting Licensing Officer, for example, responding to claims
that the DTC did not do enough to get rid of the "plague" of
hawkers reported during 1941, 813 persons were prosecuted for
offenses such as exposing food on the pavement, taking up a
fixed stand or not possessing a hawker's licence. The figure for
1942 was 1422. In February 1944 there were 222 prosecutions.
In all cases about half of these prosecutions were for hawking
without a licence. "Generally speaking, this Department does
not encourage trading on he streets … Hawkers are being
supervised and controlled … The number of hawkers is kept
within certain limits through controlling the issuing of such
licences." During 1945, 814 persons were prosecuted, while
1019 hawkers were charged in 1946. However, as the Licencing
Officer explained, the problems would persist until the
Municipality was given greater power over hawkers. Licensing
Inspectors should be given restricted powers of arrest to enable
them to deal more effectively with unlicenced hawkers. To
eliminate the problem of hawkers taking up fixed positions,
more convictions were needed. This was difficult because
inspectors and their vehicles were well known to hawkers. The
Licencing Department needed to employ African constables to
observe hawkers. The Department had unofficially begun
refusing licences to convicted offenders.
By 1948 whites felt that existing regulations were ineffective
and that the time had arrived to adopt a new set of bye-laws to
enable the Licensing Department to take action against hawkers
without referring defaulters to the Receiver's office. Discussion
on the new laws began in 1948 though the regulations only
became law in August 1949. The new law effectively closed all
the loopholes. Hawkers had to obtain a licence from the
Licencing Officer. To prevent several persons operating under
one licence, licences had to be accompanied by a photograph of
the applicant, which was to be of the full face, and approved by
the Licencing Officer. Hawkers had to carry these licences at all
times. The new law also stipulated that vehicles had to be
approved by the Licencing Officer. If the vehicle was deemed
"suitable" the name and address of the hawker and the number
of the Certificate of Registration had to be impressed on both
sides of the vehicle. Limits were placed on the size of vehicles.
Before a licence was granted the hawker had to provide a "room,
place or receptacle" for the storage of goods, which had to be
approved by the M.O.H. Hawkers could not remain in one spot
for longer than 20 minutes, and had to move to another spot at
least 50 yards away. The city of Durban was also divided into
eight zones and hawkers had to stipulate the area where they
intended to trade, and could not trade in any other area. Limits
were placed on the numbers of hawkers that could operate in
each area. Hawkers contravening these regulations could be
fined or jailed. Most important, as far as the DTC was
concerned, in future it could proceed against hawkers and the
fines would be paid to the municipality. It was no longer
necessary to refer such cases to the Receiver.
The Natal Indian Organisation, a body formed by Indian traders
after the NIC was taken over by more radical elements of the
Indian middle class, viewed these new laws "with grave
apprehension". It felt that in general the new laws were against
the "spirit and intention" of the Licences Consolidation Act 32
of 1925; the affixing of photographs was "demeaning,
unnecessary and cumbersome"; restrictions on the size of
vehicles "adversely affects" those who possess motor vehicles;
the provision that hawkers could not be stationery for longer
than 20 minutes prejudiced those who supplied blocks of flats;
the placing of limits on the numbers of hawkers allowed in each
area took no account of historical trends as hawkers were
established in certain areas and also failed to take heed of the
needs of the people in these areas; finally, a fine of £10 was far
in excess of what hawkers earned while imprisonment was not
commensurate with the offence. Such protests were in vain. The
DTC finally had the legal basis and legal muscle to clear streets
of traders. Again, it is noteworthy that richer Indians intervened
in the plight of the poorer members of their community.
CONCLUSION
This study has focused on Indian flower sellers and hawkers of
fruit and vegetables who operated on the streets of Durban
during the first half of this century. While both groups were
affected by legislation, flower sellers achieved a degree of
permanence and stability, and better and improved facilities.
Hawkers were not so lucky. Repressive policies designed to
contain and eliminate, successfully achieved their objective.
According to Rogerson, with the victory of the National Party in
1948 and its implementation of Grand Apartheid, the informal
sector was seen as dysfunctional with "respect to the desired
socio-economic order of the apartheid state" because it was seen
as a stimulus to rural-urban migration. In fact, the NP directed
local authorities that "Natives must trade in Native areas only."
What this study has shown is that local initiatives to curb urban
small-scale enterprise was not a response to directives from the
apartheid central government but that such imperatives had their
origins in local factors and pre-dated formal apartheid. Durban's
planners and policy-makers were determined to suppress and
restrict hawking in the CBD and they passed an array of laws in
the period 1910-1948 to effect this. Hawking was an important
avenue of employment for large numbers of Indians, and was
often transitional between indenture and industrial employment.
The white-dominated local state did not see hawking as a means
of alleviating unemployment and poverty for large numbers of
Indians, and took no cognisance of the consequences of its
repressive policies, namely that it was reducing or destroying the
ability of people to earn a living. Rather street traders were seen
as a distasteful and repulsive anomaly, and an impediment to
achieving a 'beautiful' modern city.
A critical factor influencing official policy were complaints of
unfair competition from licenced traders, mainly white. Every
complaint swayed the authorities further in the direction of
suppressing hawkers. It usually resulted in a new assault on
hawkers as the areas in which they could trade were further
curtailed. State policy moved from partial tolerance to
suppression, and the full weight of the law was thrown at
hawkers to eliminate them. With few exceptions, no thought was
given to creating an environment conducive to street trading.
The state used the twin strategies of individual prosecutions as
well as blocking out entire streets to hawkers to contain street
trading. Negative policies included restrictions on the types of
vehicles used, limitations on the areas in which hawking was
allowed, employment of regulatory individuals such as licencing
personnel, constables, and health inspectors tasked with
eliminating street trading, and even the utilisation of plain-
clothes undercover policemen to pursue and harass defaulters.
Although large numbers of Indians took to hawking, this activity
did not allow for autonomous development. Hawkers operated
in areas controlled by the state, and under strict regulations, with
the result that there were limited opportunities for independent
development. Hawkers operated in an unequal structure that
repressed all initiatives undertaken by them. Their day-to-day
activities and actions were governed by a host of repressive laws
designed to appease and serve the interests of formal traders,
white civilians and town planners. Hawkers lived a life of bare
existence, hard work and long grind. While hawking enabled
Indians to avoid wage labor, it placed Indians at the bottom of
the economic structure. The stock of hawkers and pedlars was
worth less than £5 each during the 1940s. Castells and Portes
description of informal work is very applicable to Indian
hawkers; it "simultaneously encompasses flexibility and
exploitation, productivity and abuse, aggressive entrepreneurs
and defenceless workers, libertarianism and greed." The struggle
of Indian hawkers against the local state was largely in vain and
resulted in what Beavon refers to as the "underdevelopment of
the 'informal sector' in the South African city." Finally, what this
study has also revealed in that politics was clearly racialised
during this pre-apartheid era. The local state was clearly
motivated to protect its white citizens who saw Indians as an
economic threat, Africans conceptualised the problem in racial
terms while all classes of Indians came to see that they
comprised a racial 'community' in their dealings with Africans
and whites, notwithstanding marked differences of language,
region, class and so on amongst

MUMBAI: The Street Vendors (Protection of Livelihood and

Regulation of Street Vending) Bill, 2012, approved by
Parliament on Friday promises to make the illegal tradition of
hawkers paying protection money-commonly called hafta-to
the authorities a thing of the past.

At the same time, confirming citizens' worst fears, an

amendment in the bill means more than three lakh hawkers
will be able to get a licence from the BMC.

The amendment allows the number of hawkers in a city to be

2.5% of its population. As the city is home to 1.25 crore people,
the formula allows 3.12 lakh licensed hawkers, 47,000 more
than today's number of 2.65 lakh hawkers, legal as well as
illegal.
Hawkers plan a "victory rally" at Azad Maidan on September
20.

Sharad Rao, president, Municipal Mazdoor Union, said an

amendment in the bill gives the responsibility for issuing
licences and certificates to regularize hawkers to a town
vending committee, a body chaired by the municipal
commissioner or the chief executive officer. "This also means
collection of hafta by civic officials and the police will come to
an end," Rao said.

Activists said the state would now have to tackle the issue of
accommodating hawkers. "Giving licenses and finding
legitimate space for them (hawkers) acceptable to all
stakeholders are two different things. We have been through
the whole process, how is the state going to house them and
find space for them? This is our major concern. If you licence
and regulate hawkers, then the hafta fear goes away," Vidya
Vaidya of Citispace said.

Anil Joseph, chairperson, Perry Road Residents' Association,

said even licensed hawkers harassed citizens. "With so many
more licences, one shudders to think what will happen to the
voice of the common people," Joseph said.

Additional municipal commissioner Mohan Adtani said the BMC

had appointed a two-member committee of independent
experts-Sharit Bhowmik, a professor at the TISS Centre for
Labour Studies, and Dr Rohit Shinkre from the Rachna Sansad
Academy of Architecture-to scout for more places where
hawker pitches may be legitimately relocated.

****************8

HAWKING
The informal sector was supposed to provide the reserve labour
force that fed the formal economy as it expanded. Precisely the
opposite has happened. In 1961, 65 per cent of Mumbai's
workforce was employed in the organised sector and the
remainder in the unorganised sector; 30 years later the
proportion was reversed. By 1991, 65 per cent of employment
was in the unorganised sector… Bombay Metropolitan
Development Authority. Draft Plan for 1995-2005, Mumbai
1997.
Livelihood & Employment issues
A large proportion of the urban population depends on 'the
urban informal sector for its livelihood. This is seen from the
fact that this sector constitutes upto 50% of the labour force in
cities like Calcutta, Bombay and Madras. The urban informal
sector comprises essentially the self employed, who can be
grouped into 3 broad categories. (Which ?)
It was also found that younger, better-educated persons were
continuing to become hawkers. This pattern far from being anti
developmental or anti social points to a situation, where in the
absence of other employment opportunities, people take to
hawking.
Today vending is legal in villages and towns. But in the cities it
has become an illegal activity. Unless urban planners recognise
and accept the need for hawkers and vendors in the cities of a
poor country, municipal acts will continue to have provisions
that will call vending on the roadside an 'encroachment' simply
because you do not plan for them.
Bhatt, Ila , "Do Tokri Ki Jagah: Article from Labour file
Journal", Labour File, New Delhi, Nov 1998, [C.J31],
/eldoc/urban_issues/uu1_M014.html
The street vendor is the smallest player in the market economy.
This profession is the refuge of almost all those who migrate to
cities from villages. While the state is spending on poverty
alleviation, its minions are preying on the informal secotr. Three
views: Prof Gangadhar Jha, National Institute of Urban Affairs:
The vital role of the street vendors and the existing aberrations
giving rise to corrupt practices calls for a re-look at the existing
planning practice and process. Urban planning need to come out
of the existing elitist planning disposition...
Madhu Kishwar, Editor, Manushi: our government policies are
designed to depress their incomes and thwart their
entrepreneurial potential in the name of cleaning up the city by
cleaning it of "unwanted encroachments". They are treated as
legal offenders, as a "public nuisance" and frequently…Subrata
Mukherjee, Mayor of Kolkata, Trinamool Congress: When one
talks of industrial resurgence or an overall rejuvenation of the
state, one has to keep in his mind that it cannot be done without
giving the city the much needed facelift. One also has to keep in
his mind that such a facelift should not come at the cost of the
livelihood of a not so small section of the society.
"Allow Hawkers to Flourish?" The Economic Times,
Bangalore, 03 July 2001. [C.J31.030701ET].
Some previous Campaigns
Efforts to ban sale and use of thin plastic bags: Except in four or
five wards, the performance of other wards has been poor - Dy.
Municipal Commissioner; Cleanliness Campaign in 87 slums
change to a drive wherein 2.82 lakh citizens were caught for
spitting, urinating, literring in public and fined; ALM scheme
for garbage separation taken up in 650 localities. Despite this,
private layouts, slums, unattended corners reek with rotting
garbage. Additional labour from private contractors is
requisitions. 5 lakh rupees is spent every month, awareness
campaign are launched, and street wiped clean. Albeit
temporarily.
Mehta, Manuja, "Civic Sense Proves a Rare Commodity",
Indian Express, Mumbai, 24 November 2001. [C.J31.241101IE]
Hawking - A Right!
Article 19(l)(g) gives the Indian citizen a fundamental right to
practice any profession, or to carry on any occupation, trade or
business. This right is limited only by the right of the Indian
Government, to prescribe professional or technical qualifications
for certain trades or professions. and right of the State to create
monopolies in certain trade, business or industry in the interest
of the general public. Otherwise a citizen's right to carry on a
trade or profession of his choice is absolute.
Street vendors, artisans, masons, construction workers are
among the self employed people in India, As they belong to the
informal or unorganised sector they enjoy little or no legal
benefits. They also do not have access to finance as easily as
organised industry...
Advani, Rani , " Legal Status of Street Vendors: Article from
Labour File Journal", Labour File, New Delhi, Nov 1998,
[C.J31], /eldoc/urban_issues/uu1_M013.html
Culture, Consumption, Middle Class and Hawkers
Groups who are outside the ambit of formal citizenship rights,
manage to be heard by the state, not by arguing for the liberal
rights of individuals, but by making demands based on group
rights and community identity. (Partha Chatterjee).
The pheriwala is one extraordinary class of citizen-subjects that
the developmentalist (and now liberalising) state in India
produces as a vulnerable category of persons. Pheriwalas are
entrepreneurs..but the condition of their survival is that they
remain marginal and de-humanised... What becomes
controversial is not the inhuman treatment of pheriwalas or the
grotesque form of modernisation. The criticism are in fact
aesthethic and political: street vendors are seen as offensive,
inconvenient, and illegitimate. Attempts to impose order on city
spaces are also about the value of the real estate involved. In a
time of unchecked urban growth, the pheriwala becomes a
symbol of metropolitan space gone out of control. As such they
become the exemplary image of an unattainable disciplinary
project. A Climate of terror is instilled through demolition and
destruction, illuminating the despotic character of state power
under market liberalisation.
Rajagopal, Arvind, "Violence of Commodity Aesthetice,
Hawkers, Demolition Raids and a New Regime of
Consumption", Economic and Political Weekly, 05 January
2002, [C. J31. 05JAN02EPW].
If the licence-permit raj has been lifted for rich industrialists,
why has it not been lifted on the smallest players in capitalism?
Why are the poor still in chains?
Editorial, "The Smallest Players", Business Standard, Kolkatta,
05 May 2001. [C.J31.050501BSB].
The Railways, pride of many swadeshis, too has succumbed to
the pressures of the free market. A group of 25 vendors have
filed a petition in Delhi High Court alleging that the Railways'
policy of 1992 of allowing multinationals and big Indian
companies from setting up shops and kiosks at the railway
station is detrimental to their business interest.
Statesman News Service, "Vendors File Petition Against
MNC's Kiosks at Rly station", The Statesman, Delhi, 03 August
2001. [C.J31.030801ST].
"Belligerent hawkers have converted the footpaths into a virtual
no-entry zone for pedestrians". "officials of the BMC defend
their lack of action. They point to the Supreme Court's recently
served contempt notices to the civic administration, asking it to
temporarily stop evicting hawkers".
Sharan, Abhishek, "Why Pavements Are Turning Into
Markets", Indian Express, Mumbai, 12 December 2002.
[C.J31.121202IE].
In a controversial move, the BMC is toying with the idea of
reserving 20 per cents of open plots meant for gardens.
Playgrounds andmarkets for hawkers to sell their wares.
Times News Network, "BMC Now Plans to Hawk Open
Plots", The Times of India,Mumbai, 12 December 2001.
[C.J31.121201TOI].
The BMC has proposed that it be allowed to concentrate its
efforts on removing hawkers from the non-hawking zones.
Lawyer-activist Raju Moray however says that barring the few
non-hawking zones, the hawkers are free to camp anywhere!
BMC feels that … "The residents although eager to patronise
hawkers do not want them in front of their premises".
Misra, Anshika, "BMC Is Hell-Bent on Surrendering City to
Hawkers, say Lawyers and Activists", The Time of India,
Mumbai, 16 March 2002. [C.J31.160302TOI]
Hawkers Policy
1998: Supreme Court directed authorities to frame a
comprehensive scheme for hawkers and all encroachments in
Bombay. Committe formed but defunct?
MARCH 2001:The Bombay High Court had directed the BMC
to stop collecting fees through daily "pavtis" which enabled
them to carry on their business. Vested interests benefitted.
Corrupt policemen and civic staff began collecting "hafta". The
BMC sought the courts to re-collect the fines as "We have
reached a point where more than evicting the hawkers, we want
to regulate and discipline them," a senior official said.
Times of India Civic Correspondent, "BMC will seek HC
approval to collect fees from hawkers", The Times of India,
Mumbai, 13 March 2001. [C.J31.130301TOI].
MAY 2001: Union Urban Development Ministry sets up task
force to frame policy guidelines on street hawking...
MAY 2001: HIGH Court allows BMC to increase number of
hawkers ( 30,000, 15000 of whom have existing licenses) in
hawking zones; 1564 PCOs as Public Utility, 88, Aarey Sarita
stalls, 140 andicapped stalls, 10 Jai jawan stalls etc.HC declines
laxity in no hawking near railway stations onthe ground that
they were there for many years, hawking within 50 metres of
municipal market.
Express News Service,"Hawking zone modifications
approved", Indian Express, Mumbai, 04 May 2001.
[C.J31.040501IE].
SEPT 2001: The BMC's plan envisages forming non-hawking
zones per ward after considering the intensity of vehicular and
pedestrian traffic on the area's streets, and also the location of
railway stations and hospitals. Residents' associations are u in
arms against the BMC plan, which, they say. Will result in
hawking zones being created in residential areas which dont
have much traffic.
Mehta, Rajshri, "Non-Hawking Zones May Decrease in New
Scheme", Indian Express, Mumbai, 24 September 2001.
[C.J31.240901IE].
SEPT. 2001: Task force decides to accept Prime Minister's
suggestion that Legitimate occupations like street hawking
should be recognised and the scope for rent seeking and
harassment by enforcement officers must be eliminated. In a
concept note to the Task force, the PMO said that hawking is a
fundamental right, that hawkers are service providers to the low-
cost economy groups and also that hawking helps reduce eye-
teasing and vehicular pollution (by reducing transportation
requirements).
Khomne, Ranjit, "PM Seeks Speedy Redressal of Hawkers'
Problems", The Times of India, Mumbai, 20 September 2001.
[C.J31.200901TOI].
DEC 2001: The Centre has asked the State Governments to
desist from taking any punitive action against hawkers,
pavement vendors and rickshaw-pullers pending finalisation of a
national policy to regulate their activities. ( This directive is
following a recommendation from a task force on street
vendors).
Hindu Special Correspondent,"Centre's directive to States on
hawkers", The Hindu, Madras, 01 December 2001.
[C.J31.011201H].
SEPT 2002: The second National Commission on Labour has
suggested giving legal status and licences to Hawkers.. Hawkers
are among the most visible category of workers in the informal
sector. Most come from impoverished rural families. Street
vending absorbs millions who come to cities as economic
refugees from villages and enter the occupation with small
amounts of capital. They not only create employment for
themselves but also generate up-stream employment in
agriculture and small-scale industry.
Times News Network, "Give licences to hawkers, suggests
labour panel", The Times of India, Mumbai, 21 September
2002. [C.J31.210902TOI].
OCT 2002: A Central Task force has suggested a policy aimed
at providing support system to enable street vendors to earn a
living as well as maintain the cityscape." The policy treads the
fine line between safeguarding the rights of hawkers on the one
hand and protecting public spaces and ensuring smooth traffic
movement on the other.
Times News Network, "Task force drafts policy to regulate
hawking", The Times of India, Mumbai, 01 October 2002.
[C.J31.041002TOI].
Solutions
Town planners proposed reserving certain areas for hawkers to
sell food without disturbing them geographically and creation of
food courts. The idea was to find a practical solution, which will
ensure vendors earn their livelihood while citizens get their own
space back.
Express News Service, "Mumbai Can Have Its Bhel and Eat it
Too", Indian Express, Mumbai, 23 November 2001.
[C.J31.231101IE].
There are no takers for the Dadar Hawker's Plaza of 1160 units.
A Tata Institute of Social Sciences indicates the presence of over
5,000 hawkers in Dadar, raising a question mark over the
viability of the plaza They are being charged Rs. 6500 per sq/ ft.
(Cloth merchants 10,925/sq. Ft). "Why should we move from
our open galas to these conested areas, where we may not get
customers at all?. Illegal hawkers are given space licensed
hawkers are ignored, while new hawkers continue to come on to
the roads," points Vijay Dalvi, President of the Wholesale
Bhajipala and Phool Vyapari Mahasangha.
Deshmukh, Smita, "Dadar Plaza No Deal, Cry Hawkers', BMC
Prices Itself Out Of Market", The Times of India, Mumbai, 15
May 2001. [C.J31.150501TOI].
In most indian cities the urban poor survive by working in the
informal sector. Poverty and lack of gainful employment in rural
areas and in smaller towns drive large numbers of people to the
cities for work and livelihood. These people generally possess
low skills and lack the level of education requires for the better
paid jobs in the organised sector. Besides, permanent protected
jobs on the organised sector are shrinking, hence even those
having the requisite skills are unable to find proper employment.
For these people, work in the informal sector offers the only
means for their survival.
Bhowmik, Sharit K., "National Policy for Street Vendors",
Economic and Political Weekly, Mumbai, 19 April 2003.
[J.19APR03EPW].
Alarmed by the proliferation of hawkers all over the metropolis,
Citi Space, the Association for a Clean and Green Chembur and
40 other organisations and individuals had filed a PIL (public
interest litigation) in the Bombay high court in November 1998.
Following this, the HC had ordered the creation of hawking and
no-hawking zones...
BALAKRISHNAN, S., " Move on hawking zones slammed
(BMC\'s move on hawking zone ruffles feathers of civic
activists)",Times of India, Mumbai,10 March 2002, [C.J31.]
/eldoc/j31_/14oct03toi2.html
http://timesofindia.indiatimes.com/cms.dll/html/uncomp/articles
how?msid=233679
The study finds that around 20% of the hawkers covered in
Mumbai were once permanent employees of the organised
sector. In Ahamedabad, around 30% of the male hawkers
covered were previously working in large factories and in
Calcutta half the street vendors covered were permanent workers
in the formal sector. In these cities a large number of factories,
especially textile mills and engineering industries, have closed
down. Over 65% of Mumbai's workforce is engaged in the
informal sector and in Ahmedabad and Calcutta this sector
engages more than 75% of the workforce of the two cities. In the
three cities the decline in the manufacturing sector has led to a
sharp increase in the services sector.
"Emerging Issues", 12 Nov 2003, [C.J31.] /docsweb/urban-
issues/hawkers/haw_evict.htm http://www.nasvi.net/issues.php
The Supreme Court of India directed the 'Municipality to
construct a multi-storied market to accommodate all these
women-vendors and provide at least 2 large lifts for them to
carry their agricultural produce. For diverse reasons the
judgment has not been implemented in full effect.
"LEGAL PROVISIONS", 11 Nov 2003, [C.J31.]
/docsweb/urban-issues/hawkers/hawker11.htm
http://www.nasvi.net/provisions.php
While comparing the income of the different groups with the
purchases from hawkers we find that the proportion of the
income spent in making purchases from hawkers is definitely
higher as the income level decreases from the fair price(ration)
shops, the poor buy all their requirements from hawkers.
"Perception of Customers", 11 Nov 2003, [C.J31.]
/docsweb/urban-issues/hawkers/hawkers10.htm
http://www.nasvi.net/perception.php
Why is the populace against the idea of too many vendors on the
roads? One popular myth is that all the existing vendors, and
those coming into business, will cause a lot of space problem
trying to accommodate within the space limits. Nevertheless a
group in IIT, Delhi has studied and found that all vendors can be
accommodated provided the city authority is efficient and
rational. So whose predicament is that, the poor vendors or the
authorities?
Also, many deem that vendors are a source of leakage to any
neighbourhood news such as a vacant house etc., but according
to road safety expert Dinesh Mohan, street vendors bring safety
and security to the neighbourhoods. Wherever clusters of open
shops on pavements are settled, the crime rate is low.
"Street Vendors: Exploitation by the State",11 Nov 2003,
[C.J31.] /docsweb/urban-issues/hawkers/streetvendors.html
http://www.ccsindia.org/Intern2002_1_vendors.pdf.
The point here is to show that the distinction between the
formal, informal and illegal sectors may never be perfectly
clear. Does this make our project (or any project involving the
informal sector) indefensible, as some have suggested (e.g.
Peattie 1989)? We don't think this is true. In fact, we believe that
the very fluidity of the notion of the informal sector is what
makes it such a fascinating--and in a certain sense "post-
modern"-- field of study: it defies the simplistic categorization
process and throws all definitions into doubt. In other words, it
points out that the distinction between "appropriate" and
"inappropriate" economic behavior is not a matter of laws or
rules, but of definition, motives and power. The distinction is
above all not one of legality (which is a purely formal category),
but the ability of competing interest groups to impose and
enforce their own perceptions of legality. In this case,
informality often appears in the gray area between the
imposition of laws (typically favoring large businesses and well-
organized unions) and the lack of enforcement of those laws
due to a combination of the inability of the state to do so and the
ability of the poor and relatively unorganized to thwart
enforcement.
Street vending thus came under savage attack throughout the
modernist era. While one of the criticisms lodged against this
activity was its purported inefficiency, the real problem was it
was too competitive with formal retail outlets, unless they were
located in optimal "modern" areas. Since supermarkets could not
put street vendors out of business through market mechanisms,
they had to use the police system to do it. The solution,
therefore, was to ban or over-regulate street vendors while at the
same time redesigning urban spaces in which they could no
longer exist. Suburban subdivisions, urban decay, and urban
renewal projects were all a vigorous part of this process in the
First World. In the Third World, the same processes were
obviously put in place, but with varying success due to the lack
of modernist penetration of society and the increased power of
those in the informal economy themselves to evade or resist the
modernist encroachment on their livelihoods.
"Street Vendors, Modernity and Postmodernity:Conflict and
Compromise in the Global", 11 Nov 2003, [C.J31.]
/docsweb/urban-issues/hawkers/hawkers13.htm
http://www.openair.org/pub/IJSSP/postmod.htm
But while clearing the streets he is also destroying a section of
the economy with an annual turnover of Rs.1,590 crores. If
legalised and regulated, annually this sector could earn the
deficit-strapped municipal corporation a revenue of Rs.146
crores. Yet, justifying the demolition drive, Rokde adds: "We
are not taking action against small hawkers. Only those
occupying prime space and those who have encroached on
public space and run businesses with large turnovers will be
removed..."
In Mumbai, around 20 per cent of the hawkers are those who
have been retrenched from mills or other industries, said Dr.
Sharit Bhowmick, head of Bombay University's Sociology
Department. They have been forced into the city's unorganised
sector, which comprises 65 per cent of the workforce. Hawkers
serve a large section of Mumbai's population - selling everything
from food to books and clothes. "Where else can I grab a bite on
my way back home? It's so cheap and convenient. Please ask
them to put back the chai shop, the vada pau and Chinese food
stall outside my office. They have the best food. They are not
blocking the roads, the street is bare without them," said an
office secretary in south Mumbai's commercial area.
BUNSHA, Dionne, "Targeting hawkers", Frontline, Madras 01
Feb 2002, [C.J31.]/eldoc/j31_/01feb02frn1.html
http://www.flonnet.com/fl1902/19020940.htm
The Supreme Court in its order dated July 3, 1985 approved a
composite scheme prepared by the Municipal Commissioner and
directed the BMC to frame it ``as far as possible'' before
31.10.1985. The conditions of the Scheme as approved by the
Supreme Court in the `Bombay Hawkers Union' case are as
follows:
Hawkers should do their hawking business only on an area of
1Mt. x 1 Mt. on the footpath wherever it exists or on the extreme
sides of the carriage way, in such a manner that the vehicular
and pedestrian traffic is not obstructed and access to shops and
residences is not blocked...
Hawkers should not put up any stall or place any table, stand or
such other thing or erect any type of structure on the pitch on
which they are conducting their business nor should they hawk
on handcarts...
Hawkers should not hawk within 100 metres of any place of
worship, educational institution or
general hospital and within 150 metres of any Municipal or
othermarket...
Hawkers should do their business only between 7 am and 10 pm
on the day on which the
prescribed daily fee is recovered...
The daily fee charged will not confer upon the hawker the right
to do his business at any particular place...
One only has to take a look around Mumbai City to realise that
the BMC took the Supreme Court for a royal ride. Instead of
getting rid of hawkers who obstruct footpaths, the BMC has got
rid of the footpaths.
Moray, Raju Z, "Trampling over Footpaths",[C.J31.]
/eldoc/j31_/hawkers2.htm
http://www.expressindia.com/ie/daily/19980919/26251004.html
Since the adoption of the so-called `New Economic Policies’,
there has been massive closure of major and small industries.
Several thousands of workers who have become unemployed
have opted for self-employment. Already, self-employment
groups such as autorickshaw or taxi drivers, are at saturation
point and most have joined the hawking trade...
The leftist government of west Bengal launched what is known
as Operation Sunshine through which they removed several
thousand hawkers from the streets of Kolkatta forcibly. Later on
this was followed in all other mega cities of India.
Kapile, Suresh, " Bombay Hawkers Association’s
message:hawkers are not a ‘nuisance’", [C.J31.]
/eldoc/j31_/hawkers3.htm
http://www.streetnet.org.za/english/bombay1.htm
The Bombay High Court has set apart only 131 hawking zone
roads. The zone roads can accommodate only around 17,000
hawkers, says Chatterjee, adding, "The municipal
administration in its affidavit given to the Supreme Court has
stated that the stress should be on implementing non-hawking
zones in phases (46 roads to start with) and simultaneously
making adequate space available for accommodating the number
of hawkers held eligible as per TISS-Yuva"...
Apparently, Mumbai can fit in at best one lakh hawkers or the
revised list of 75,000 while the hawker population is estimated
by Pocker and experts at around three lakh.
Devarajan, P., " What\'s Mumbai without its hawkers?",
[C.J31.] /eldoc/j31_/hawkers4.htm
http://www.thehindubusinessline.com/bline/2002/04/09/stories/2
002040900411800.htm
Mumbai provides contrasts as far as female hawkers are
concerned. The women squatting on thepavements in the
working class area of Central Mumbai have started hawking
after the closure of the textile mills in that area. Their husbands
had worked as permanent workers in the textile mills and are
now unemployed for the past several years. These women
provide for most of the expenses for the household through their
meagre incomes, as they are the main earners...
By and large, trade unions have not been very effective in
protecting the rights of street vendors. For example, the unions
were helpless when the mass eviction drive took place. However
one cannot hold unions solely responsible. The bureaucracy in
the city has represented the interests of the affluent.The
newspapers too have only played up the negative aspects of
street vending. The elected representatives, namely, the
Municipal Cooperators, have little say in running the city. The
eviction of hawkers has drawn protests from a section of
cooperators but these seemed to have been brushed aside by the
bureaucrats.
"Mumbai", [C.J31.] eldoc/j31_/hawkers7.htm
http://www.nasvi.net/mumbai.php
"Draft Policy on Street vendors", [C.J31.]
/eldoc/j31_/nat_pol_vendors.htm
http://urbanindia.nic.in/mud-final-
site/policies/policy_streetvendors.htm
The study looked at the problem of hawkers in the cities of
Mumbai, Delhi, Ahmedabad, Patna, Imphal, Bangalore,
Bhubaneshwar and Imphal. He found that among the cities only
two, Bhubaneshwar and Impal, had made provisions for street
vendors by including them in their plans...
Imphal is the only city that has rules for street vending. In
residential areas it provides for four to six shops and ten
hawkers per 1 000 people. In Imphal, the traders are exclusively
women who have won a hard three-year battle for the right to
trade. The women have a hard life, starting work at 4.30am and
returning home in the evening. As the market cannot afford
electricity, they have to use kerosene lamps.
"INDIA - ‘Don’t see hawkers as a menace’ - Seven City
Report", [C.J31.] /eldoc/j31_/hawkers5.htm
http://www.streetnet.org.za/India4.htm
A member of the national task force on street vendors, Sharit
Bhowmik, said the city of Mumbai wasresponsible for
committing atrocities. Instead of fining vendors for street
encroachments, the authorities confiscated stalls and goods
without warning or any concern about the damage or
destruction.

Navi Mumbai Hawkers & Workers ... vs The State Of

Maharashtra & Others on 28 February, 1998
Equivalent citations: 1998 (3) BomCR 458, 1998 (3) MhLj 438
Author: A Savant
Bench: A Savant, V Sahai
ORDER
A.V. Savant, J.
1. Heard all the learned Counsel; Dr. Chandrachud for
petitioners; Mr. C.J. Sawant, Advocate General for respondent
Nos. 1 and 5; Mr. B.R Apte, Advocate General for respondent
Nos. 2 and 3 and Mr. R.M. Sawant for respondent No. 4.
2. The first three petitioners are Trade Unions duly registered
under the Trade Unions Act, 1926 representing a large number
of hawkers in Navi Mumbai, (New Bombay), the twin city.
Petitioner Nos. 4 to 17 are hawkers, who claim to have been
carrying their hawking activities in Navi Mumbai and had
submitted their applications to the second respondent
Commissioner, Navi Mumbai Municipal Corporation for grant
of licence to hawk in the hawking zones. The fourth respondent
City and Industrial Development Corporation (for short
'CIDCO') is the New Town Development Authority (N.T.D.A.)
constituted under section 113 of the Maharashtra Regional and
Town Planning Act, 1966. The third respondent Navi Mumbai
Municipal Corporation is a Corporation duly constituted under
section 3 of the Bombay Provincial Municipal Corporations Act,
1949 (for short B.P.M.C. Act). The fourth respondent CIDCO
has notified certain areas within the new town of Navi Mumbai
as "hawking zones" and the same have been placed at the
disposal of the third respondent Municipal Corporation.
The Municipal Corporation, in its turn, is entitled, in accordance
with the provisions of sections 384 and 385 of the B.P.M.C. Act,
to grant licences for sale of Articles in public place or licence for
use of skill in handicraft or rendering services for the purposes
of gain in public place or street. Chapter XXII of the B.P.M.C.
Act deals with "Licences and Permits." Sub-chapter VIII deals
with "Licences for Hawking etc." Under section 384 of the said
Act, it is provided that no person shall use any public place or
any public street for the purpose of hawking or exposing for
sale, any article whatsoever, whether it be for human
consumption or not except under and in conformity with the
terms and provisions of a licence granted by the Commissioner
in that behalf. Section 385 provides that no person shall, for the
purpose of gain, use any public place or public street for the
purpose of using his skill in any handicraft or in rendering
services to and for the convenience of the public, except under
and in conformity with the terms and provisions of a licence
granted by the Commissioner in that behalf. Section 386 in Sub-
chapter IX deals with the "general provisions regarding licences
and permits".
4. The controversy raised before us is in respect of the
constitutional validity of the impugned letter dated 21st August,
1997 (Exh. S. page 115) issued by the Asstt. Commissioner of
the third respondent Municipal Corporation. Under the said
letter, the applicants like petitioner Nos. 4 to 17 and other
members of petitioner Nos. 1 to 3, who have submitted their
applications for grant of licence to hawk in the hawking zone
within the limits of Navi Mumbai Municipal Corporation, had
been called upon to remain present in the office of the Asstt.
Commissioner and produce the following five documents.
i) Ration card;
ii) Voter's identity card;
iii) Proof in support of the applicant carrying on business;
iv) 2 passport size photographs; and
v) Certificate from the Competent Officer that the applicant is
resident of
Maharashtra for 15 years.
It is that last item, namely, a certificate from the Competent
Officer to the effect that the applicant is a resident of
Maharashtra for 15 years, which is objected to before us by Dr.
Chandrachud on behalf of the petitioners. The impugned letter
dated 21st August, 1997 read with the affidavit of Asstt.
Commissioner Mr. N.N. Alhat makes it clear that only a person
producing the said documents would be eligible to be considered
for allotment of a slot in the hawking zone. It is thus one of the
conditions of eligibility for being considered for grant of a
licence to hawk in the hawking zone in Navi Mumbai Municipal
Corporation that, the person applying must produce the above
mentioned five documents. We are not concerned with the first
four items in respect of which there is no controversy before us.
The objection of the petitioners is to the insistence on item No.
(v). It is obvious that, if an applicant does not produce the said
certificate of residence for 15 years in the State, his application
is liable to be rejected on the ground that he is not even eligible
for being considered for grant of licence to hawk in the hawking
zone. The applications of some of the petitioners have been
rejected solely on the ground that they did not produce the said
certificate of residence. Some applications are pending
consideration. Some have been rejected on the ground that the
applicants did not remain present for the interview. In this
category there are cases where the applicants have produced all
the five documents whereas there are some who may have
produced the first four documents but were unable to produce
the certificate of residence for 15 years in the State. It is in these
circumstances that the petitioners have prayed for issuance of a
writ of certiorari
quashing the rejection of petitioners' applications. There is also a
prayer for issuance of a writ of mandamus directing respondent
Nos. 2 and 3 to issue licences to the petitioners under sections
384 and 385 of the B.P.M.C. Act and to allot them a place in the
hawking zone.
5. Dr. Chandrachud, the learned Counsel for the petitioners has
contended that the right to hawk is a fundamental right protected
by Article 19(1)(g) of the Constitution which guarantees to
every citizen a right to practice any profession or to carry on any
occupation, trade or business. It is undoubtedly true, as provided
in Clause (6) of Article 19, that, nothing in sub-Clause (g) of
Clause (1) shall affect the operation of any existing law in so far
as it imposes, or prevent the State from making any law
imposing, in the interests of the general public, reasonable
restrictions on the exercise of the right conferred by Clause
(1)(g). It is then contended that the licensing power vested in the
State under the Municipal Law is a regulatory power which must
be exercised so as to ensure due and proper conduct of the
business which is being licenced. No person can carry on
hawking activity except in accordance with the licence granted
under section 384 or 385 of the B.P.M.C. Act. Since the right to
hawk is a fundamental right guaranteed under Article 19(1)(g)
of the Constitution, insistence on the production of a certificate
of residence for 15 years in the State does not meet the sanction
of any existing law imposing, in the interests of the general
public, reasonable restrictions on the exercise of the right
conferred by Article 19(1)(g). Since there is no legal sanction
for the insistence on production of the certificate of residence,
the respondents cannot invoke the aid of Clause (6) of Article 19
to contend that there is an existing law imposing, in the interests
of general public, a reasonable restriction on the exercise of
right conferred by Article 19(1)(g).
6. Apart from the fact that there is no legal sanction for
insistence on production of a certificate of 15 years residence in
the State, nothing has been indicated to us as to what is the
authority of the Asstt. Commissioner to insist on production of
such a certificate. It is of some significance in this behalf to note
that in similar letters issued in the past only 4 documents were
required to be produced which are, more or less, similar in
nature to the first four items mentioned in the impugned letter.
Our attention has been invited to the letters dated 5th June, 1997
(Exh. N pages 103 to 105) where, while considering the question
of grant of licence for hawking, the applicants were required to
produce only 4 documents similar to the first four documents
mentioned in the impugned letter. A perusal of the impugned
letter dated 21st August, 1997 shows that by way of a rubber
stamp item No. (v) has been added in a very unsatisfactory
manner. What is now further demanded is a certificate from the
Competent Officer that the applicant is a resident of
Maharashtra for 15 years. Instead of mentioning the words
"Competent Officer", in Marathi "Saksham Adhikari", what has
been mentioned in the rubber stamp is "Samaksha Adhikari". In
a similar letter at page 116, the said rubber stamp is wholly
illegible. That apart, no provision of any law, rule or even a
resolution of the Corporation has been pointed out to us to show
the authority of the Asstt. Commissioner to insist on the
production of a certificate of residence for 15 years. It is,
therefore, contended that the Corporation and its officers are
acting arbitrarily in insisting upon the production of the
certificate of residence of 15 years as a condition of eligibility
for grant of licence for hawking and hence the action of
respondent Nos. 2 and 3 is clearly hit by provisions of Article 14
of the Constitution which guarantees the equality before law to
every person within the territory of India.
7. In reply to the petition, the only affidavit that has been filed is
of Asstt. Commission of Navi Mumbai Municipal Corporation
Mr. N.N. Alhat. It is stated in the
said affidavit that no restriction has been imposed on the trading
activity of the petitioners within the area of Navi Mumbai
Municipal Corporation. The infringement of a fundamental right
guaranteed by Article 19(1)(g) must be as a result of the direct
impact of the restriction on the freedom to carry on trade and
should not be a mere incidental effect of such a restriction. It is
contended that trading activity in general has not been stopped.
While, it is not denied that the petitioners have a right under
Article 19(1)(g) to hawk in the hawking zone, what is contended
is that insistence on a certificate of residence for 15 years does
not amount to imposing any restriction on the petitioners' right
under Article 19(1)(g) of the Constitution. Para 5 of the affidavit
makes a very strange reading. We would prefer to reproduce the
same. "5. I say that the condition imposed is not 15 years
domicile but 15 years residence and any citizen from anywhere
in India who has a 15 years residence in this State, is eligible for
applying for a slot in the hawking zone. I say that those who are
residing in the State for about 15 years and more are preferred in
as much as they are having some roots in the State and
'unknown outside criminal elements' without any base in the
State should not take advantage of the allotment. I say that the
said condition is put to provide opportunities to those who are
staying in this State for about 15 years."
It will be clear from the above that in the first part of para 5 it is
clearly stated that a citizen who has 15 years' residence in the
State is eligible to apply for a slot in the hawking zone. What
has been stated subsequently is, in our view, wholly improper
and pains us. While saying that those who were residing in the
State for about 15 years and more are preferred in as much as
they are having some roots in the State it is said that "unknown
outside criminal elements without any base" in the State should
not take advantage of the allotment. It is difficult to appreciate
how the Asstt. Commissioner of the third respondent Municipal
Corporation could have made such an irresponsible statement.
The averments in para 7 of the affidavit show further non
application of mind on the part of Mr. Alhat, Apart from several
mistakes in the said para, it shows a very casual manner in
which the affidavit has been sworn by Mr. Alhat in a matter of
some importance.
8. Relying upon the affidavit of Mr. Alhat, it was urged by Mr.
Apte, the learned Addl. Advocate General that even assuming
that the petitioners have a right under Article 19(1)(g) to hawk
in the hawking zone, such a right has not been infringed by
requiring the petitioners to produce the certificate of residence
for 15 years in the State. It is contended that such a requirement
does not have any direct impact on the petitioners' right under
Article 19(1)(g). The impact, if any, is indirect and is of a very
limited nature and is not violative of the right which the
petitioners claim under Article 19(1)(g). We will consider the
rival contentions in the light of the legal position.
9. Two principal questions which arise in the light of the
pleadings and the arguments advanced are as under :
i) Can the petitioners claim their right to hawk as a fundamental
right protected
by Article 19(1)(g) of the Constitution.
ii) If the answer to the first question is in the affirmative, the
second question which arises is does the insistence on
production of certificate of residence for 15 years in the State
has the sanction of any existing law in so far as it imposes, in the
interests of the general public, reasonable restrictions on the
exercise of the right conferred by Article 19(1)(g).
10. Article 19(1)(g) and Article 19(6) of the Constitution read as
under :
"19. Protection of certain rights regarding freedom of speech,
etc.
(1) All citizens shall have the right -
(a) .....
(b) .....
(c)....
(d) .....
(e) .....
(f) .....
(g) ..... to practice any profession, or to carry on any occupation,
trade or
business.
(2) .....
(3) .....
(4) .....
(5) .....
(6) ..... Nothing in sub-Clause (g) of the said clause shall affect
the operation of any existing law in so far as it imposes, or
prevent the State from making any law imposing, in the interests
of the general public, reasonable restrictions on the exercise of
the right conferred by the said sub-clause, and, in particular,
(nothing in the said sub-clause shall affect the operation of any
existing law in so far as it relates to, or prevent the State from
making any law relating to, (i) the professional or technical
qualifications necessary for practicing any profession or
carrying on any occupation, trade or business, or (ii) the carrying
on by the State, or by a Corporation owned or controlled by the
State, of any trade, business, industry or service, whether to the
exclusion, complete or partial of citizens or otherwise."
11. Article 19(1)(g) of the Constitution protects the right of a
citizen to practice any profession or to carry on any occupation,
trade or business. It is well settled that this right extends the
protection to all lawful trade or business. The ambit of
constitutional protection does not extend to businesses which are
regarded as unlawful or inherently pernicious such as trade in
liquor. See Har Shankar and others etc. etc. v. The Deputy
Excise and Taxation Commissioner and others, . Street trading
and hawking is an age-old vocation adopted by human beings to
earn their living. It is recognised by common law and after
advent of the Constitution, the protection of fundamental rights
has been extended to such a trade. The hawker who hawks his
wares subserves, in the process of carrying on his own business,
the needs of common man for ordinary goods and services at
affordable prices. The hawker has, therefore, been recognised by
law to subserve the felt needs of the society and of the common
man who is the vital constituent of the society. In Bombay
Hawkers Union and others v. Bombay Municipal Corporation
and others, , the Supreme Court considered the validity of
various conditions imposed by Bombay Municipal Corporation
for regulating the activities of the hawkers. The Court upheld the
validity of those conditions which were necessary to ensure that
the carrying of trade and business of hawkers did not result in
nuisance or annoyance or inconvenience to other members of
the public. In other words, the Court held that the conditions
which constitute unreasonable restrictions on the hawkers' right
to carry on their trade or business must be dropped. The Apex
Court held that the power conferred upon the Commissioner by
section 313-A of the Bombay
Municipal Corporation Act to grant licence to hawk was in the
nature of a discretion coupled with a duty and it was, therefore,
essential that such a power should be exercised by consulting all
concerned interests and guided by consideration of what is in the
interests of general public. The Court, therefore, held that
hawking licence should not be refused in the hawking zone
except for good reasons and discretion not to grant a hawking
licence in a hawking zone should be exercised by the
Commissioner reasonably and in public interest. These
observations are to be found in paras 10 and 11 at pages 1210
and 1211 of the report.
12. The view expressed by a Bench of 3 learned Judges presided
over by Y.V. Chandrachud, C.J., in Bombay Hawkers Union's
case was reaffirmed by a Constitution Bench of the Apex Court
presided over by E.S. Venkataramiah, C.J., in Sodan Singh and
etc.etc. v. New Delhi Municipal Committee and another, A.I.R.
1989 Supreme Court 1988. The petitioners in Sot/an Singh's
case claimed a right to engage in trading business on the
pavements and roads of the city of Delhi. They asserted that they
had been operating their trade with the permission of the
Municipal authorities for some time but recently there had been
illegal interference in their right to carry on their trade. Delhi
High Court had dismissed their petition and they approached the
Apex Court. In para 16 of the judgment, Apex Court affirmed
the ratio of its earlier judgment in Bombay Hawkers' Union case
(supra) and said that the right to carry on the trade or business
mentioned in Article 19(1)(g) of the Constitution on street and
pavement, if properly regulated, cannot be denied on the ground
that the streets are meant exclusively for passing and repassing
and for no other use. A reference was also made to the principle
enunciated in Saghir Ahmed v. The State of U.P., to which we
will make a brief reference in the later part of this judgment. In
para 17 of the judgment in Sodan Singh's case, the Constitution
Bench did not approve of the observations of the 3 learned
Judges' Bench in Pyare Lal v. New Delhi Municipal Committee,
. While upholding that the petitioners had a right under Article
19 of the Constitution, the Apex Court rejected the argument
that the right extended to carry on the trade by occupying a
specific place on the street or pavement. The argument that such
a right fell under Article 21 was, in terms, negatived and the
right under Article 19(1)(g) in this behalf was held not to extend
to occupying any particular place on the pavement where he can
squat and engage in trading business. In para 28 of the
judgment, the Apex Court made a reference to street trading
being recognised by various Acts of Parliament in England.
Reference was made to Halsbury's Law of England, 4th
addition, Volume 40 paras 427 and 428 dealing with the
regulations in that behalf. In the result, the Court concluded that
street trade being a fundamental right, has to be made available
to the citizen subject to Article 19(6) of the Constitution. It is
within the domain of the State to make any law imposing
reasonable restrictions in the interests of the general public. It
was, however, observed that this can be done by an enactment
on the same lines as in England or by any other law permissible
under Article 19(6) of the Constitution.
13. We may, at this stage, make a brief reference to some of the
earlier decisions which have a bearing on the issue raised before
us. In Mohd. Yasin v. Town Area Committee, Jalalabad, , the
petitioner was a wholesale dealer in fresh vegetables and fruits
in Jalalabad in U.R The respondent-Committee had framed
certain bye-laws under which all rights and powers to levy or
collect commission on sale or purchase of vegetables and fruits
within the limits of the town vested in the Committee or any
other agency appointed by the Committee. The
Committee, by auction, had given a contract for sale of
vegetables and fruits as also for collecting commission for the
relevant year to respondent Bhishamber who, it was alleged, had
never dealt with in vegetables and fruits. Although, in terms,
there was no absolute prohibition against carrying on business as
wholesale dealer in vegetables and fruits, the result of the
byelaws requiring the wholesale dealers to pay the prescribed
fee of one anna in a rupee to the contractor who held the
monopoly was, in effect, to bring about a total prohibition of the
business of the wholesale dealer in vegetables and fruits. The
petitioner challenged this action of the Committee. It was held
by Apex Court in para 7 of its judgment that under Article
19(1)(g) the citizen had a right to carry on any occupation, trade
or business which right under that clause is apparently
unfettered. The only restriction to this unfettered right is the
authority of the State to make a law relating to the carrying on of
such occupation, trade or business as mentioned in Clause (6) of
that Article as amended by the Constitution (First Amendment)
Act, 1951. If, therefore, the licence fee cannot be justified on the
basis of any valid law, no question of its reasonableness can
arise. An illegal impost would at all times be an unreasonable
restriction and would necessarily infringe the right of a citizen to
carry on his occupation, trade or business under Article 19(1)(g).
It was, therefore, held that such an infringement, which is illegal
in its inception, can properly be made subject matter of a
challenge under Article 32 of the Constitution. In para 8 of the
judgment, the Apex Court held that section 293 and section 298
of the U.P. Municipality Act, 1916 did not empower the Town
Area Committee to make any bye-law authorising it to charge
any fee otherwise than for use and occupation of any properly
vested in or entrusted to the management of the Town Area
Committee. In the result, it was held that the petitioner Mohd.
Yasin was entitled to succeed.
14. In Saghir Ahmad and another v. State of U.P. and others, ,
the question arose in respect of the right to carry on business of
plying motor vehicles as "stage carriages" on hire, on the
Bulandshahr Delhi route. The running of vehicles was regulated
by the Motor Vehicles Act, 1939. It was held in para 9 of the
judgment that the right of the public to use motor vehicles on
public road cannot, in any sense, be regarded as a right created
by the Motor Vehicles Act. Such a right existed anterior to any
legislation on that subject as an incident of public rights over a
highway. A reference was made to the distinction between
carrying on transport buses by common carriers on the public
road in America as a "franchise" which was not a common law
right which could be claimed by all citizens. It was then
observed that under our Constitution contract carriers as well as
common carriers would occupy the same position so far as the
guaranteed right under Article 19(1)(g) is concerned and both
were liable to be controlled by appropriate regulations under
Clause (6) of that Article.
15. In Kharak Singh v. State of U.P. and others, A.I.R. 1963
Supreme Court 1293, the question which arose in a petition
under Article 32 of the Constitution was in respect of the
constitutional validity of certain provisions in Chapter XX of the
U.P. Police Regulations and the power conferred upon the police
official to open a "history sheet" and keep certain citizens "under
surveillance" which action was alleged to be violative of the
right guaranteed to the citizen under Article 19(1)(d of the
Constitution which guarantees to every citizen a right to move
freely through out the territory of India. The relevant regulation
under which surveillance was carried out was regulation 236 of
U.P. Police Regulations. The Apex Court considered the
American and English decisions on the subject where it was held
that "the house of everyone is to him as his castle and fortress as
well as for his defence against injury and violence as for his
repose. "It was, therefore, held that Regulation 236(b) was
clearly violative of Article
21 as there was no "law" on which the same could be justified
and was, therefore, struck down as unconstitutional.
16. In the light of the above decisions and, in particular, the ratio
of the decisions in Bombay Hawkers' Union's case and Sedan
Singh's case on which heavy reliance has been placed by Dr.
Chandrachud on behalf of the petitioners, we have no hesitation
in answering the first question in the affirmative, namely that the
petitioners have the right to hawk in the hawking zones in Navi
Mumbai Municipal Corporation as a fundamental right
guaranteed by Article 19(1)(g) of the Constitution.
17. We may now turn to the second question as to whether the
insistence on production of a certificate of residence for 15 years
in the State has the sanction of any existing "law" in sofar as it
imposes, in the interests of general public, reasonable
restrictions on the exercise of the right conferred by Article
19(1)(g) of the Constitution. The learned Addl. Advocate
General Mr. B.P. Apte, has invited our attention to two decisions
of the Apex Court to contend that the petitioners' right was not
violated. In Viklad Coal Merchant, Patiala and others v. Union
of India and others, , the petitioners were coal merchants who
had challenged the virus of section 27-A of the Indian Railways
Act, 1890 and the circular issued thereunder on 1st April, 1972
regarding Preferential Traffic Schedule providing for priority for
movement of different goods including coal. The petitioners
coal merchants - alleged that a total ban was imposed on the
transport of coal by giving abbreviation "GX" and restricting
loading of coal wagons from the station categorised as "GX".
Such "preferential traffic schedule" in their cumulative effect
resulted in total ban on transport of coal by railways at their
instance and the said actions were violative of Articles 14 and
19(1)(g) of the Constitution. Rejecting the contention of the
petitioners, it was held by the Apex Court that whenever the
Court is called upon to examine the complaint that the
restrictions imposed on the freedom to carry on trade are
unreasonable, it is necessary to find out what is the trade and
business of - the petitioner and to what extent the restrictions, if
any, are imposed upon the freedom to carry on trade or business.
The Apex Court further held that in order to determine whether
the restriction was reasonable or not, it was necessary to find out
what is the direct impact of the restrictions on the freedom to
carry on trade and that is to be kept in view and not the ancillary
or incidental effect of the Governmental action on the freedom
to carry on trade. It was, therefore, held that the petitioners'
business or trade as coal merchants was in no way interfered
with by the railways by not being able to provide transport
facilities since the railways was not the only means of transport.
There are other means of transport by which coal could be
transported by the petitioners to the respective places of
business. It was then held that even assuming that direct impact
of the policy laid down by the Railway Administration pursuant
to the orders of the Central Government under section 27-A
resulted in denial of the allotment of wagons to the petitioners,
the restrictions will nevertheless be reasonable because the
petitioners were not wholly denied the allotment of wagons. In
the result, the writ petitions were dismissed.
18. In Krishnan Kakkanth v. Government of Kerala and others, ,
the constitutional validity of the circular dated 19th May, 1995
issued by the Secretary to the Government of Kerala directing
that for distribution of pumpsets under Comprehensive Coconut
Development Programme and other similar schemes of the
Agriculture Department and giving specific roles and
responsibilities to certain agencies was challenged. It was
directed under the circular that M/s. Kerala Agro Industries
Corporation (KAICO) and Regional Agro Industries
Development
Corporation (RAIDCO) would arrange supply of pumpsets in
certain districts and in remaining districts, supply was to be
effected by private dealers alongwith KAICO and RAIDCO.
Reliance was placed on the ratio of the decision in Viklad Coal
Merchant's case (supra). The Apex Court held in para 26 of the
judgment that fundamental right for trading activities of the
dealers in pumpsets in the State of Kerala, as guaranteed by
Article 19(1)(g) had not been infringed by the impugned
circular. The rights guaranteed under Article 19 of the
Constitution were not absolute but the same were subject to the
reasonable restrictions to be imposed against the enjoyment of
such rights. Such reasonable restrictions seek to strike a balance
between the freedom guaranteed by any of the clauses under
Article 19(1) and the social control permitted by Clause (2) to
(6) of Article 19. In para 30 of the judgment, it was held that
even for imposing reasonable restriction on the fundamental
right guaranteed under Article 19(1), the restriction has to be
imposed under a valid law, be it a statutory law or regulation,
and not by an executive instruction of the Government. A
reference was made in this behalf to Kharak Singh's case
(supra). It was then held that though a citizen has a fundamental
right to carry on trade or business, he had no fundamental right
to insist upon the Government or any other individual for doing
business with him. The Government or individual has a right to
enter into contract with a particular person or to determine a
person or persons with whom it or he will deal. The private
dealers cannot insist that the Government must enter into
contract with him and make him a approved dealer. The
Government has every right to select dealers of its choice for
delivery of pumpsets at the price agreed upon and to render after
sale service to the purchasers of the pumpsets covered by the
Government Financial Assistence Scheme. Reiterating the law
laid down in the case of Viklad Coal Merchant (supra), the Apex
Court concluded that the circular dated 19th May, 1995 did not
violate the petitioners' right and, therefore, there was no merit in
the writ petition.
19. It will be clear from the facts of the two cases summarised
above that their ratio has no application to the facts of the
present case. There is no controversy before us that, in the light
of the ratio of the decisions in Bombay Hawkers' Unions case
and Sodan Singh's case, the right to hawk in the hawking zone is
a fundamental right guaranteed under Article 19(1)(g) of the
Constitution. If respondent Nos. 2 and 3 want to insist on the
petitioners' complying with the requirement of production of a
certificate of 15 years' residence in the State, it is for the said
respondents to show that, in the first place, there exists a law in
so far as it imposes, in the interests of the general public,
reasonable restrictions on the exercise of the right conferred by
Article 19(1)(g). Needless to say that there has to be a 'law'
imposing restriction as and if such a 'law' exists, the restrictions
should be reasonable in the interests of the general public.
Affidavit of Mr. Alhat makes it abundantly clear that
requirement of production of certificate of residence for 15 years
in the State is a condition of eligibility. Apart from the improper
and irresponsible averments made in para 5 of the affidavit,
respondents Nos. 2 and 3 have made it clear that this is a
condition of eligibility. No law, rule or even a policy resolution
has been pointed out to us in support of the addition of item No.
(v) in the impugned letter dated 21st August, 1997. We have
already indicated above that in some earlier letters of 5th June,
1997 all that was required was production of 4 documents which
are more or less similar in nature to the first four items
mentioned in the impugned letter. A rubber stamp is now put in
the impugned letter in a manner which shows a very casual
approach. The designation of the officer from whom the
certificate is to be obtained has been wrongly mentioned which,
in our view, shows clear non application of mind. The manner in
which the rubber stamp has been
put, illegible in some cases, again shows a very casual approach
on the part of respondent Nos. 2 and 3. We requested the learned
Addl. Advocate General to show any legal sanction or authority
in the Asstt. Commissioner requiring the petitioners to produce
the certificate of residence for 15 years in the State from the
'Competent Officer'. Nothing was shown to us. Who is to be the
"Competent Officer" has not been clarified. There is no
indication in the circular as to whom the petitioners should
approach for such a certificate. It is left obscure and vague.
20. We have already referred to Mohammed Yasin' case (supra)
where the petitioner was a wholesale dealer in vegetables and
fruits at Jalalabad and had challenged the action of the Town
Area Committee imposing a fee of one anna in a rupee to be
paid to the contractor who held the monopoly in the business of
wholesale dealers in vegetables and fruits. Reliance was sought
to be placed by the Town Area Committee on its power under
sections 293 and 298 of the U.P. Municipality Act, 1916. Apex
Court held in paras 7 and 8 of its judgment that the said
provisions did not empower the Town Area Committee to make
any bye-law authorising it to charge any fee otherwise than for
the use or occupation of any property vested in the Committee.
It was, therefore, held that if the fee cannol be justified on the
basis of any valid law, no question of its reasonableness can
arise. An illegal impost must at all times be an unreasonable
restriction and will necessarily infringe the right of a citizen to
carry on his occupation, trade or business. Similarly in Kharak
Singh's case (supra), the Apex Court held that Regulation 236
appearing in Chapter XX of U.P Police Regulations authorising
the police to keep 'surveillance' on a citizen was no 'law' which
could be justified under Article 19(5) of the Constitution since
the Apex Court was dealing with the right under Article 19(1)(g)
of the Constitution. In the result, it was held that the said
Regulation was plainly violative of the right guaranteed under
Article 19(1)(d) and Article 21 of the Constitution. Applying the
same ratio, we have no hesitation in coming to the conclusion
that there is no sanction of any law, rule or even a policy
resolution requiring the production of a certificate of 15 years
residence in the State. We need not express any opinion on the
question as to whether a mere rule or policy resolution will have
the force of law within the meaning of Article 19(6) of the
Constitution since such a question does not arise for our
consideration. We also need not examine the question as to
whether the restriction imposed is a reasonable restriction in the
interests of the general public since there is no "law" authorising
imposition of such a restriction. If the insistence on production
of a certificate of 15 years' residence in the State is ab initio
illegal, it is not necessary for us to examine the ancilliary
questions as to whether a mere rule or a resolution of the
Corporation would have the force of 'law' and, secondly,
whether such a restriction would be reasonable in the interests of
general public as contemplated by Clause (6) of Article 19 of the
Constitution.
21. In our judgment the ratio of the decision in the case of
Viklad Coal Merchant and Krishnan Kakkanth is of no
assistance to respondent Nos. 2 and 3. This is not a case where
the restriction does not have a direct impact on the petitioners'
right to carry on trade as guaranteed under Article 19(1)(g) of
the Constitution. The affidavit of Mr. Alhat leaves no doubt
whatsoever that production of a certificate of residence for 15
years in the State is a condition of eligibility. Moreover, it is not
as if certain percentage of licences are reserved in preference,
for those who produce a certificate of residence and the
remaining are left open for every one else residing anywhere in
the country, The approach of respondent Nos. 2 and 3 in
rejecting the applications of most of the petitioners is very clear,
namely, that any one who does not produce the certificate of
residence is not at all eligible to be considered for grant of
hawking licence even in
the hawking zone. Under the circumstances, we have no
hesitation in answering the second question against respondent
Nos. 2 and 3 and in favour of the petitioners namely that
insistence on production of a certificate of residence for 15 years
in the State does not have the sanction of any existing 'law' in
sofar as it imposes, in the interests of general public, a
reasonable restriction on the exercise of a right conferred by
Article 19(1)(g).
22. Dr. Chandrachud for the petitioners, also invited our
attention to the decisions of the Apex Court in (i) Smt. Maneka
Gandhi v. Union of India and another, ; (ii) Ramanna Dayaram
Shetty v. The International Airport Authority of India and
others, and (iii) Tata Cellular v. Union of India, 1994(6) S.C.C.
651 in support of his contention that the Navi Mumbai
Municipal Corporation, which is an instrumentality of the State
and a regulator of a large number of services and benefits to the
society must act in a manner and in accordance with the
procedure which is just, fair and reasonable. Sequitur to this
argument is that if the procedure evolved by the third respondent
Corporation is not just, fair and reasonable, it would clearly be
violative of Article 14 of the Constitution. Counsel contends that
the rule of Wednesbury unreasonableness must apply here and
the decision of an administrative body must be quashed if it is
one which no reasonable body of persons would ever arrive at.
While there can be no doubt about the proposition of law
canvassed by the learned Counsel, we do not think it necessary,
for the decision of the present case, to go into the details of the
said decisions. We have come to the conclusion that both the
questions framed for our decision in para 9 of this judgment
must be answered in favour of the petitioners and against
respondent Nos. 2 and 3.
22-A. We, therefore, hold that (i) the petitioners have a
fundamental right to hawk in the hawking zones which right is
guaranteed by Article 19(1)(g) of the Constitution and (ii) the
requirement of production of a certificate of residence for 15
years in the State imposed in the impugned letter dated 21st
August, 1997 does not have the protection of any existing law,
in so far as it imposes, in the interests, of general public, a
reasonable restriction in the exercise of a right conferred by
Article 19(1)(g). In this view of the matter, the petitioners are
entitled to succeed.
23. Since, however, the petitioners are claiming 3 right to hawk
and since it is necessary in the light of our judgment to direct
respondent Nos. 2 and 3 to reconsider the petitioners' cases
without insisting upon the production of certificate of residence
for 15 years in the State, we give the following directions.
i) Condition (v) in the impugned letter dated 21st August, 1997
requiring
production of a certificate of residence for 15 years in the State
is hereby
quashed and set aside being violative of the provisions of Article
19(1)(g)
of the Constitution.
ii) The second respondent Commissioner will reconsider the
cases of all the
applicants members of the first three petitioners - as also of
petitioner
Nos. 4 to 17 who fulfil the other four requirements mentioned in
the
impugned letter dated 21st August, 1997.
iii) The petitioners are at liberty to produce further material and
documents in
support of their claim before the second respondent within a
period of four
weeks from today.
iv) The second respondent will consider the case of all the
applicants before
him afresh in the light of the aforesaid judgment and decide the
same on
merits without insisting upon the production of certificate of
residence for
15 years in the State. The second respondent shall decide the
claim of the petitioners within a period of ten weeks from today.
24. Rule is accordingly made absolute in the above terms with
no order as to costs. Interim order granted in this petition will
remain operative for a period of twelve weeks from today.
25. Before parting with this matter, we must express our strong
disapproval of the reckless and improper manner in which Mr.
Alhat has made averments in para 5 of his affidavit which we
have reproduced in para 7 above. Mr. Apte, appearing on behalf
of respondent Nos. 2 and 3 tenders an unconditional apology on
behalf of Mr. Alhat, Asstt. Commissioner who is present in the
Court. Apology tendered today by Mr. Alhat is taken on record.
The same is accepted and marked "X" for identification.
26. Petitions allowed.

life is getting tougher for hawkers in Delhi. Nasiruddin

Siddiqui, pradhan of the Reri Patri Sangharsh Morcha, says they
are being routinely fleeced, evicted and hounded. He represents
around 100 hawkers who were peacefully selling their wares on
a footpath outside Station Road in Shahdara, east Delhi.

For many years, the Municipal Corporation of Delhi (MCD)

would charge them Rs 1 per day, which they dutifully paid. In
September 2007, the MCD told them they would get regular
shops if they applied. So the vendors filled up forms, each cost
Rs 100, and deposited between Rs 20,000 to Rs 25,000 for those
promised shops, says Siddiqui.

The MCD then lapsed into silence. A year later, it sprang a

surprise by declaring the hawkers ‘unauthorized’. They were
told to clear out. The vendors are now routinely challaned.
“Sometimes the challan is for Rs 1,500. The vendor doesn’t
even have goods worth that much,” says Siddiqui.

“See, vendors on the footpath are innocent and frightened

people. They don’t have the courage to confront officials and
say look here I paid for an allotment, where is my money?” says
Siddiqui, anger simmering in his voice.
In the run up to the Commonwealth Games, New Delhi is in the
throes of a beautification drive. It wants to look green and rich.
It doesn’t want slums and hawkers and the working poor.
Instead of the colour and cacophony of the Indian bazaar, it
wants the monotony of malls and empty streets.

“We are not against city beautification, but can we be part of

it?” asks Siddiqui.

Ironically, a whole lot of policies uphold the rights of the

vendor. There are orders by the Supreme Court. There is the
National Policy on Urban Street Vendors. There is also the
National Capital Territory of Delhi Law, 2009. All this copious
paper says that vendors must not be evicted from footpaths and
markets. Instead, cities should demarcate specific zones where
hawkers can do business legally, in peace. They should be
registered and given identity cards and all rights and facilities.

The National Policy on Street Vendors has political backing. No

less a person than the Prime Minister Manmohan Singh has
written to chief ministers asking them to implement it.

Yet the working poor live in perpetual fear. The bulldozer and
the police van can demolish their jobs and ramshackle homes
reducing them to abject penury, worsening infant and maternal
mortality rates and child malnutrition.

“In Delhi there is more despair,” says Arbind Singh, head of

National Association for Street Vendors of India (NASVI). “The
cost of living is higher, implementation of policies, poorer.”
Government agencies are dawdling over implementing the
National Policy on Street Vendors. However, the MCD has
taken the initiative of drawing up a ‘scheme’ for vendors under
which it has formed 272 ward vending committees each headed
by the local councilor and 12 zonal committees, presided by a
judicial officer.
The committees are supposed to identify zoning sites for
hawking and ensure norms are followed – like registration fees,
timings, allotment of sites, issuing of identity cards and so on.
Disputes are settled by the zonal committee. There is reservation
in allotment for widows and handicapped people.

Notices were published in newspapers inviting hawkers to apply

for legal vending sites. RP Gautam, the officer in charge of the
MCD scheme, says his office has received 1, 31,807
applications. The city has 300,000 vendors.

“But we don’t have any pavement space, ” he shrugs. “We

identified 30,000 zones. The police rejected them. The zones
don’t fulfill Supreme Court guidelines. Now we have only 2000
vending sites.”

The Supreme Court had said that the pavement for vending
zones should be nine feet in breadth so that it can be shared with
pedestrians. But Delhi’s pavements are smaller. The MCD
informed the court and the size has been whittled to seven feet.
MCD has outsourced the business of finding such pavements to
a private company called Indivelop.
Meanwhile, the corporation is doing things piecemeal, shifting a
few hawkers here and there. So it did ‘displace’ 173 vendors
from INA market but then it ‘resettled’ them at Thyagaraja
Sports Stadium where they will all benefit from the
Commonwealth Games, said an officer of MCD’s licensing cell
with an air of satisfaction.

Arbind Singh is tired of listening to excuses. Land is not really

an issue. Last year, NASVI worked with the MCD and identified
95 markets where vendors can be given space. “If those don’t
meet their criteria, we can identify other spaces,” says Arbind.
“What they need are market feasibility reports.”

NASVI put on the table a range of ideas: designer kiosks, street

food courts, night markets with solar lighting, clean toilets, even
an all-women vendor market. Delhi has 272 weekly markets
which could be creatively expanded.

The problem is the MCD, cosseted in a derelict building in the

Walled City, eyes most NGOs, academics and urban planners
with utmost suspicion. It has not evolved a mindset or
mechanism to tap into their knowledge and implement
ingenuous, socially conscious projects which might earn them a
shining reputation.

NASVI has decided to force itself on MCD, anyway. It has

offered to carry out the ‘scheme’ in Shahdara. The group has
trusty links with hawker committees, critical for
implementation. “We can identify genuine hawkers and draw
up lists,” says Arbind. “The MCD can monitor us.”
It has also offered to set up a women vendors market in Delhi.
“In all of India, there are only eight all-women markets,” says
Rehmat who looks after NASVI’s Women’s Cell. “Often
women are evicted from their spot by male vendors. They do
business on the footpath with no facilities like drinking water,
toilets or a crèche.”

Whether NASVI succeeds in enthusing MCD is anybody’s

guess. Initially the Commissioner appeared interested, even
convening a ‘high-powered’ meeting. Officials cooperated,
working out funding. Then they were mysteriously transferred
and the corporation lapsed into characteristic silence, says
Arbind.

It is an open secret that the nexus between lower-level officials

and the police prevents plans for the working poor from taking
off. If hawkers are ‘unlicensed’ money can be extorted.

NASVI has talked to senior police officers and got a

sympathetic response. If the police at street level can be
dissuaded from allying with lower-level officials, corruption can
be broken down.

“The major weakness is money,” explains Arbind. “Hawkers

collectively are paying around Rs 10 to Rs 15 lakhs a day in
bribes to the MCD, the NDMC and the Delhi Development
Authority. The day vendors get licences these agencies will not
be able to bully us. We at NASVI have declared that from now
on we will not pay bribes. We will file an FIR instead,” says
Arbind.
Maharashtra Ekta Hawkers Union and
another Vs. Municipal Corporation,
Greater Mumbai and others
[Civil Appeal Nos.4156-4157 of 2002]
[Civil Appeal Nos. 4161-4162 of 2002]
[Civil Appeal Nos. 4175-4176 of 2002]
[I.A.Nos.266-285, 288-289, 294-299,304-
309,312-321 & 324-335]
[Civil Appeal Nos.4156-4157 of 2002]
[I.A.Nos.7-8 in Civil Appeal Nos. 4161-
4162 of 2002]
[I.A.Nos.16-17 in Civil Appeal Nos. 4175-
4176 of 2002]
ORDER
G.S. SINGHVI, J.
1. A street vendor / hawker is a person who
offers goods for sale to the public at large
without having a permanent structure /
place for his activities. Some street vendors
/ hawkers are stationary in the sense that
they occupy space on the pavements or
other public / private places while others
are mobile in the sense that they move from
place to place carrying their wares on push
carts or in baskets on their heads.
2. In last four decades, there has been
manifold increase in the number of street
vendors / hawkers in all major cities in the
country. One of the many factors
responsible for this phenomena is unabated
growth of population without corresponding
increase in employment opportunities. The
other factor is the migration of rural
population to the urban areas. A large
section of the rural population has been
forced to leave their habitat because of
massive acquisition of land and substantial
reduction in the number of cottage
industries, which offered source of
livelihood to many people in the rural areas
and even those living in the peripheries of
the urban areas. In recent past, many lakh
youngsters have moved from the rural
areas to the cities with the hope of getting
permanent source of livelihood but a
substantial number of them have become
street vendors /hawkers because their
expectations have been belied. One reason
which has contributed to this scenario is
that unlike other sections of the urban
population, they neither have the capacity
and strength to demand that the
Government should create jobs for them
nor do they engage in begging, stealing or
extortion. They try to live with dignity and
self-respect by doing the work as street
vendors / hawkers.
3. The importance of street vendors and
hawkers can be measured from the fact
that millions of urban poor across the
country procure their basic necessities
mainly from street vendors / hawkers
because the goods, viz., cloths, hosiery
items, plastic wares, household items, food
items, etc., sold on pavements or through
push carts, etc., are cheap. The lower
income groups also spend a large
proportion of their income in purchasing
goods from street vendors / hawkers.
4. Unfortunately, the street vendors /
hawkers have received raw treatment from
the State apparatus before and even after
the independence. They are a harassed lot
and are constantly victimized by the officials
of the local authorities, the police, etc., who
regularly target them for extra income and
treat them with extreme contempt. The
goods and belongings of the street vendors
/ hawkers are thrown to the ground and
destroyed at regular intervals if they are not
able to meet the demands of the officials.
Perhaps these minions in the administration
have not understood meaning of the term
"dignity" enshrined in the preamble of the
Constitution.
5. The constant threat faced by the street
vendors / hawkers of losing their source of
livelihood has forced them to seek
intervention of the Courts across the
country from time to time. In last 28 years,
this Court has struggled to find a workable
solution of the problems of street vendors/
hawkers on the one hand and other
sections of society including residents of
the localities / places where street vendors /
hawkers operate and delivered several
judgments including Bombay Hawkers'
Union vs. Bombay Municipal Corporation
(1985) 3 SCC 528, Sodan Singh vs. New
Delhi Municipal Committee (1989) 4 SCC
155, Maharashtra Ekta Hawkers Union vs.
Municipal Corporation, Greater Mumbai
(2004) 1 SCC 625, Maharashtra Ekta
Hawkers Union vs. Municipal Corporation,
Greater Mumbai (2009) 17 SCC
151,Maharashtra Ekta Hawkers Union vs.
Municipal Corporation, Greater
Mumbai(2009) 17 SCC 231 (this order was
passed on 30.07.2004 but was printed in
the journal only in 2009) and Gainda Ram
vs. Municipal Corporation of Delhi(2010) 10
SCC 715, but the situation has not changed
in last four decades. Rather, the problem
has aggravated because of lackadaisical
attitude of the administration at various
levels and the legislative instruments made
many decades ago have become totally
ineffective.
6. In Sodan Singh vs. New Delhi Municipal
Committee (supra), L.M.Sharma,J., who
authored the main judgment, referred to a
number of precedents including Saghir
Ahmad vs. State of U.P. AIR 1954 SC 728
and observed.
"17. So far as right of a hawker to transact
business while going from place to place is
concerned, it has been admittedly
recognised for a long period. Of course,
that also is subject to proper regulation in
the interest of general convenience of the
public including health and security
considerations. What about the right to
squat on the roadside for engaging in
trading business? As was stated by this
Court in Bombay Hawkers' Union v.
Bombay Municipal Corporation (1985) 3
SCC 528 the public streets by their
nomenclature and definition are meant for
the use of the general public: they are not
laid to facilitate the carrying on of private
business. If hawkers were to be conceded
the right claimed by them, they could hold
the society to ransom by squatting on the
busy thoroughfares, thereby paralysing all
civic life.
This is one side of the picture. On the other
hand, if properly regulated according to the
exigency of the circumstances, the small
traders on the sidewalks can considerably
add to the comfort and convenience of
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 day's work can pick up these articles
without going out of his way to find a
regular market. If the circumstances are
appropriate and a small trader can do some
business for personal gain on the pavement
to the advantage of the general public and
without any discomfort or annoyance to the
others, we do not see any objection to his
carrying on the business. Appreciating this
analogy the municipalities of different cities
and towns in the country have been
allowing such traders.
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
for no other use. Proper regulation is,
however, a necessary condition as
otherwise the very object of laying out
roads - to facilitate traffic - may be
defeated. Allowing the right to trade without
appropriate control is likely to lead to
unhealthy competition and quarrel between
traders and travelling public and sometimes
amongst the traders themselves resulting in
chaos. The right is subject to reasonable
restrictions under clause (6) or Article 19. If
the matter is examined in its light it will
appear that the principle stated in Saghir
Ahmad case (1955) 1 SCR 707:AIR 1954
SC 728 in connection with transport
business applies to the hawkers' case also.
The proposition that all public streets and
roads in India vest in the State but that the
State holds them as trustee on behalf of the
public, and the members of the public are
entitled as beneficiaries to use them as a
matter of right, and that this right is limited
only by the similar rights possessed by
every other citizen to use the pathways,
and further that the State as trustee is
entitled to impose all necessary limitations
on the character and extent of the user,
should be treated as of universal
application." (Emphasis supplied) In his
concurring opinion, Kuldip Singh, J. made
the following observations:
"33. In India there are large number of
people who are engaged in the business of
"street trading". There is hardly a household
where hawkers do not reach. The
housewives wait for a vegetable vendor or
a fruit seller who conveniently delivers the
daily needs at the doorstep. The petitioners
before us are street traders of Delhi and
New Delhi areas. Some of them have
licences/Tehbazari from Municipal
Corporation of Delhi/New Delhi Municipal
Committee but most of them are squatters.
There is practically no law regulating street
trading in Delhi/New Delhi. The skeletal
provisions in the Delhi Municipal
Corporation Act, 1957 and the Punjab
Municipal Act, 1911 can hardly provide any
regulatory measures to the enormous and
complicated problem of street trading in
these areas.
35. Street trading being a fundamental right
has to be made available to the citizens
subject to Article 19(6) of the Constitution. It
is within the domain of the State to make
any law imposing reasonable, restrictions in
the interest of general public. This can be
done by an enactment on the same lines as
in England or by any other law permissible
under Article 19(6) of the Constitution. In
spite of repeated suggestions by this Court
nothing has been done in this respect.
Since a citizen has no right to choose a
particular place in any street for trading, it is
for the State to designate the streets and
earmark the places from where street
trading can be done. Inaction on the part of
the State would result in negating the
fundamental right of the citizens. It is
expected that the State will do the needful
in this respect within a reasonable time
failing which it would be left to the courts to
protect the rights of the citizens.
7. "In Maharashtra Ekta Hawkers Union vs.
Municipal Corporation, Greater Mumbai
(supra), which was decided on 9.12.2003, a
two Judge Bench referred to the judgments
in Olga Tellis vs. Bombay Municipal
Corporation (1985) 3SCC 545, Sodan
Singh vs. New Delhi Municipal Committee
(supra), the recommendations made by the
Committee constituted pursuant to an
earlier judgment and observed: "10. The
above authorities make it clear that the
hawkers have a right under Article 19(1)(g)
of the Constitution of India. This right,
however, is subject to reasonable
restrictions under Article 19(6). Thus
hawking may not be permitted where, e.g.
due to narrowness of road, free flow of
traffic or movement of pedestrians is
hindered or where for security reasons an
area is required to be kept free or near
hospitals, places of worship etc. There is no
fundamental right under Article 21 to carry
on any hawking business.
There is also no right to do hawking at any
particular place. The authorities also
recognize the fact that if properly regulated,
the small traders can considerably add to
the convenience and comfort of the general
public, by making available ordinary articles
of everyday use for a comparatively lesser
price. The scheme must keep in mind the
above principles. So far as Mumbai is
concerned, the scheme must comply with
the conditions laid down in Bombay
Hawkers' Union case (1985) 3 SCC 528.
Those conditions have become final and
there is no changed circumstance which
necessitates any alteration."The Court then
enumerated the following restrictions and
conditions subject to which the hawkers
could do business in Mumbai:
"(1) An area of 1 m × 1 m on one side of the
footpath wherever they exist or on an
extreme side of the carriageway, in such a
manner that the vehicular and pedestrian
traffic is not obstructed and access to shops
and residences is not blocked. We further
clarify that even where hawking is
permitted, it can only be on one side of the
footpath or road and under no
circumstances on both sides of the
footpaths or roads. We, however, clarify
that aarey/sarita stalls and sugarcane
vendors would require and may be
permitted an area of more than 1 m × 1 m
but not more than 2 m × 1 m.
(2) Hawkers must not put up stalls or place
any tables, stand or such other thing or
erect any type of structure. They should
also not use handcarts. However, they may
protect their goods from the sun, rain or
wind. Obviously, this condition would not
apply to aarey/sarita stalls.
(3) There should be no hawking within 100
metres from any place of worship, holy
shrine, educational institutions and
hospitals or within 150 metres from any
municipal or other markets or from any
railway station. There should be no hawking
on footbridges and over bridges. Further,
certain areas may be required to be kept
free of hawkers for security reasons.
However, outside places of worship
hawkers can be permitted to sell items
required by the devotees for offering to the
deity or for placing in the place of worship
e.g. flowers, sandalwood, candles,
agarbattis, coconuts etc.
(4) The hawkers must not create any noise
or play any instrument or music for
attracting the public or the customers.
5) They can only sell cooked foods, cut
fruits, juices and the like. We are unable to
accept the submission that cooking should
be permitted. We direct that no cooking of
any nature whatsoever shall be permitted.
Even where cooked food or cut fruits or the
like are sold, the food must not be
adulterated or unhygienic. All Municipal
Licensing Regulations and the provisions of
the Prevention of Food Adulteration Act
must be complied with.
(6) Hawking must be only between 7.00
a.m. and 10.00 p.m.
(7) Hawking will be on the basis of payment
of a prescribed fee to be fixed by BMC.
However, the payment of prescribed fee
shall not be deemed to authorize the
hawker to do his business beyond the
prescribed hours and would not confer on
the hawker the right to do business at any
particular place.
(8) The hawkers must extend full
cooperation to the municipal conservancy
staff for cleaning the streets and footpaths
and also to the other municipal staff for
carrying on any municipal work. They must
also cooperate with the other government
and public agencies such as BEST
Undertaking, Bombay Telephones, BSES
Ltd. etc. if they require to lay any cable or
any development work.
(9) No hawking would be permitted on any
street which is less than 8 metres in width.
Further, the hawkers also have to comply
with the Development Control Rules, thus,
there can be no hawking in areas which are
exclusively residential and where trading
and commercial activity is prohibited. Thus
hawking cannot be permitted on roads and
pavements which do not have a shopping
line.
(10) BMC shall grant licences which will
have photos of the hawkers on them. The
licence must be displayed, at all times, by
the hawkers on their person by clipping it
on to their shirt or coat.
(11) Not more than one member of a family
must be given a licence to hawk. For this
purpose BMC will have to computerize its
records.
(12) Vending of costly items e.g. electrical
appliances, video and audio tapes and
cassettes, cameras, phones etc. is to be
prohibited. In the event of any hawker found
to be selling such items his licence must be
cancelled forthwith.
(13) In areas other than the non-hawking
zones, licences must be granted to the
hawkers to do their business on payment of
the prescribed fee. The licences must be for
a period of 1 year. That will be without
prejudice to the right of the Committee to
extend the limits of the non-hawking zones
in the interests of public health, sanitation,
safety, public convenience and the like.
Hawking licences should not be refused in
the hawking zones except for good
reasons. The discretion not to grant a
hawking licence in the hawking zone should
be exercised reasonably and in public
interest.
(14) In future, before making any alteration
in the scheme, the Commissioner should
place the matter before the Committee who
shall take a decision after considering views
of all concerned including the hawkers, the
Commissioner of Police and members of
the public or an association representing
the public.
(15) It is expected that citizens and
shopkeepers shall participate in keeping
non-hawking zones/areas free from
hawkers. They shall do so by bringing to
the notice of the ward officer concerned the
presence of a hawker in a non-hawking
zone/area. The ward officer concerned shall
take immediate steps to remove such a
hawker. In case the ward officer takes no
action, a written complaint may be filed by
the citizen/shopkeeper to the Committee.
The Committee shall look into the complaint
and if found correct, the Committee will with
the help of police remove the hawker.
The officer in charge of the police station
concerned is directed to give prompt and
immediate assistance to the Committee. In
the event of the Committee finding the
complaint to be correct it shall so record.
On the Committee so recording an adverse
remark re failure to perform his duty will be
entered in the confidential record of the
ward officer concerned. If more than three
such entries are found in the record of an
officer it would be a ground for withholding
promotion. If more than six such entries are
found in the records of an officer it shall be
a ground for termination of service. For the
work of attending to such complaints BMC
shall pay to the Chairman a fixed
honorarium of Rs 10,000 p.m.
(16) The scheme framed by us will have a
binding effect on all concerned. Thus, apart
from those to whom licences will now be
issued, no other person/body will have any
right to squat or carry on any hawking or
other business on the roads/streets. We
direct that BMC shall bring this judgment to
the notice of all courts in which matters are
now pending. We are quite sure that the
court(s) concerned shall then suitably
vacate/modify its injunction/stay order."
8. By an order dated 30.07.2004, which is
reported in (2009) 17 SCC
231(Maharashtra Ekta Hawkers Union vs.
Municipal Corporation, Greater
Mumbai),the Court modified order dated
09.12.2003 and permitted handicapped
persons who were granted licence for
running PCOs/Aarey/Sarita stalls to
continue to run those stalls even in non-
hawking zones with the rider that nofurther
or new licences be granted to any other
person.
9. The matter did not stop there. The issue
was again examined in the judgment
reported in (2009) 17 SCC 151
(Maharashtra Ekta Hawkers Union vs.
Municipal Corporation, Greater Mumbai). In
that case, a two Judge Benchtook
cognizance of National Policy on Urban
Street Vendors, 2004 and observed:
"41. After noticing the contents of the
statements in the counter, we are happy to
note that the State Government is initiating
a process for implementation of National
Policy on Urban Street Vendors by framing
regulations as envisaged in Section 10.1 of
the National Policy. We hope and trust that
the State Government will pursue the
matter with right earnest and bring it to
logical conclusion within the time stipulated.
42. We clarify that the regulations so
framed by the State would be in
consonance with the aims and objects of
the National Policy to render some sort of
succour to the urban street vendors to eke
out a living through hawking.
43. We also clarify that the State
Government shall frame regulations in
order to solve the problem of hawkers
independently without being influenced by
any scheme framed by us or any direction
issued by this Court in the interregnum. We
further clarify that the schemes and
directions issued by this Court are purely
temporary in nature and subject to
regulations framed by the State
Government in terms of Section 10.1 of the
National Policy on Urban Street Vendors. In
other words, the schemes and directions
issued by this Court shall be valid only till
the regulations are framed and
implemented."The two Judge Bench also
restrained all other Courts from interpreting
its order or passing any order touching
upon the subject matter dealt with by this
Court. Simultaneously, hearing of the writ
petitions pending before all the High Courts
was stayed and it was ordained that if any
clarification / modification is required then
the same must be obtained from this Court.
10. In Gainda Ram vs. Municipal
Corporation of Delhi (2010) 10 SCC 715,the
problem was considered in the context of
Delhi. After taking cognizance of the fact
that various committees were set up by the
administration to solve the problem of street
vendors / hawkers, the Bench referred to
the National Policy on Urban Street
Vendors, 2009 (for short, 'the 2009 Policy'),
the Master Plan of Delhi, 2012, the Model
Street Vendors (Protection of Livelihood
and Regulation of Street Vending) Bill,2009
prepared by the Government of India,
Ministry of Housing and Urban Poverty
Alleviation and observed:
"67. In the background of the provisions in
the Bill and the 2009 Policy, it is clear that
an attempt is made to regulate the
fundamental right of street hawking and
street vending by law, since it has been
declared by this Court that the right to hawk
on the streets or right to carry on street
vending is part of fundamental right under
Article 19(1)(g). However, till the law is
made the attempt made by NDMC and
MCD to regulate this right by framing
schemes which are not statutory in nature
is not exactly within the contemplation of
constitutional provisions discussed above.
However, such schemes have been
regulated from time to time by this Court for
several years as pointed out above. Even,
orders passed by this Court, in trying to
regulate such hawking and street vending,
is not law either. At the same time, there is
no denying the fact that hawking and street
vending should be regulated by law. Such a
law is imminently necessary in public
interest."The Court also referred to the
mechanism established by the Municipal
Corporation of Delhi for redressing the
grievance of the street endors/hawkers and
issued the following directions:
"77. In view of such schemes, the hawkers,
squatters and vendors must abide by the
dispute redressal mechanism mentioned
above. There should not be any direct
approach to this Court by way of fresh
petitions or IAs, bypassing the dispute
redressal mechanism provided in the
schemes.
78. However, before 30-6-2011, the
appropriate Government is to enact a law
on the basis of the Bill mentioned above or
on the basis of any amendment thereof so
that the hawkers may precisely know the
contours of their rights. This Court is giving
this direction in exercise of its jurisdiction to
protect the fundamental rights of the
citizens.
79. The hawkers' and squatters' or vendors'
right to carry on hawking has been
recognised as a fundamental right under
Article 19(1)(g). At the same time the right
of the commuters to move freely and use
the roads without any impediment is also a
fundamental right under Article 19(1)(d).
These two apparently conflicting rights must
be harmonised and regulated by subjecting
them to reasonable restrictions only under a
law. The question is, therefore, vitally
important to a very large section of people,
mostly ordinary men and women. Such an
issue cannot be left to be decided by
schemes and which are monitored by this
Court from time to time."
11. When these appeals and applications
were taken up for hearing, Shri Prashant
Bhushan, learned counsel representing
some of the street vendors /hawkers
produced Twenty Third Report of the
Standing Committee on Urban
Development (2012-2013) prepared in the
context of the Street Vendors(Protection of
Livelihood and Regulation of Street
Vending) Bill, 2012 and submitted that till
Parliament enacts appropriate legislation
for protecting the rights of the urban street
vendors / hawkers, the Court may ordain
implementation of the 2009 Policy with
liberty to the parties to approach
appropriate judicial forums for redressal of
their grievance.
They and learned counsel representing the
municipal bodies / authorities, residents and
others lamented that due to the restrictions
imposed by this Court, no other Court is
entertaining the grievance made by the
street vendors / hawkers on the one hand
and the residents of various colonies and
other people on the other hand and this is
the reason why dozens of interlocutory
applications are being filed in this Court
every year in the decided matters.
They suggested that the embargo placed
by this Court on the entertaining of writ
petitions, etc., by the High Courts should be
lifted and a direction be given that till the
enactment of appropriate legislation by
Parliament or any other competent
legislature, the 2009Policy should be
implemented throughout the country. Shri
Shyam Divan, learned senior counsel,
extensively referred to some of the
precedents and submitted that the Bombay
High Court should be directed to specifically
deal with the issue related to establishment
of hawking and non-hawking zones so that
the residents may not be adversely affected
due to un-regulated street vending and
hawking activities in different parts of the
city of Mumbai.
12. Shri Pallav Shishodia, learned senior
counsel appearing for the Municipal
Corporation of Greater Mumbai argued that
the street vendors /hawkers cannot be
allowed to occupy public spaces at each
and every place and the scheme framed by
the Corporation in compliance of the
directions given by this Court does not
require any modification. Shri Vijay
Hansaria, Shri Anand Grover, learned
Senior Advocates and Shri Sushil Kumar
Jain and other learned counsel emphasized
that this Court should direct the municipal
authorities to accommodate all the street
vendors / hawkers and stop their
harassment, exploitation and victimization
by the State agencies. Shri Prashant
Bhushan emphasized that despite the
directions given by this Court from time to
time, including the interim order passed in
relation to the street vendors / hawkers in
Delhi, the concerned authorities are not
allowing them to conduct their activities.
He further argued that the street vendors /
hawkers should be allowed to operate in
accordance with the provisions of 2009
Policy and the concerned authorities should
ensure that everybody is given licence for
carrying out his / her activity. Learned
counsel for the parties also suggested that
the decision(s) of the Town Vending
Committees should be published on regular
intervals in print and electronic media and
the internet and the High Courts should be
asked to monitor implementation of various
provisions of the 2009 Policy.
13. At the conclusion of hearing, the Court
had given time to the parties to file written
submissions / suggestions. On 7th August,
2013, Shri Prashant Bhushan, learned
counsel for the applicants in IA Nos. 322-
323 of2013 and 324-325 of 2013 filed
written suggestions. On 8th August, 2013, a
written note was filed on behalf of Citizen
Forum for Protection of Public Spaces (Citi
Space), which was allowed to act as inter
venor in the special leave petitions filed by
Maharashtra Ekta Hawkers Union.
14. We have considered the respective
arguments / submissions. Learned counsel
for the parties are ad-idem that the orders
passed by this Court from time to time have
not solved the problems of the street
vendors /hawkers and the residents of the
cities of Delhi and Mumbai and almost
every year they have been seeking
intervention of this Court by filing
interlocutory applications. The experience
has, however, shown that it is virtually
impossible for this Court to monitor day to
day implementation of the provisions of
different enactments and the directions
contained in the judgments noted
hereinabove. Therefore, it will be
appropriate to lift the embargo placed on
the entertaining of matters by the High
Courts and we order accordingly.
Paragraph 45 of the judgment reported in
(2009) 17 SCC151 shall stand modified and
the street vendors / hawkers, the residents
and others adversely affected by street
vending / hawking shall hence forth be
entitled to invoke the jurisdiction of the
concerned High Courts for redressal of their
grievance.
15. In Gainda Ram's case (paragraph 78),
this Court had directed that appropriate
Government should enact a law on or
before 30th June, 2011.Once the Street
Vendors (Protection of Livelihood and
Regulation of Street Vending) Bill, 2012
becomes law, the livelihood of millions
would be saved and they will get protection
against constant harassment and
victimization which has so far been an order
of the day. However, till the needful is done,
it will be apposite for the Court to step in
and direct that the 2009Policy, of which the
salient provisions are extracted below,
should be implemented throughout the
country:
"1.8 A centre piece of this Policy is the role
of Town Vending Committee (henceforth
referred to as TVC) to be constituted at
City/Town level. A TVC shall be
coordinated by a convener who should be
nominated by the urban local body
concerned. The Chairman of TVC will be
the Commissioner/Chief Executive Officer
of the concerned urban local body. The
TVC will adopt a participatory approach and
supervise the entire process of planning,
organisation and regulation of street
vending activities, thereby facilitating the
implementation of this Policy. Further, it will
provide an institutional mechanism for due
appreciation of the ground realities and
harnessing of local knowledge for arriving
at a consensus on critical issues of
management of street vending activities.
The TVC may constitute, in collaboration
with the local authority, Ward Vending
Committee to assist in the discharge of its
functions.
1.9 This Policy adopts the considered
opinion that there should not be any cut off
date or limit imposed on the number of
vendors who should be permitted to vend in
any city/town, subject to registration of such
vendors and regulation through the TVC. At
any time, an urban poor person can decide
that he or she would like to go to a
wholesale market, purchase some items
and sell these in vending zones during
permitted hours to make an honest living.
The vendor may not be subject to undue
restrictions if he/she wishes to change the
trade. In order to make this conceptual right
a practically feasible right, the following
would be necessary:
i) Vendor markets/outlets should be
developed in which space could be made
available to hawkers/vendors on a time-
sharing model on the basis of a roster. Let
us say that there are 500 such vending
places in about a 100 new vendors'
markets/push cart markets/motorized
vending outlets. Let us also assume that
there are 5,000 vendors who want to apply
for a vending site on a time-sharing basis.
Then by a simple process of mathematical
analysis, a certain number of days or hours
on particular days could be fixed for each
vendor in a vending place on a roster basis
through the concerned TVC.
ii) In addition to vendors' markets/outlets, it
would be desirable to promote week-end
markets in public maidans, parade grounds
or areas meant for religious festivals. The
week-end markets can be run on a first-
come-first-serve basis depending on the
number of vending sites that can be
accommodated in the designated area and
the number of vendors seeking vending
places. However, in order to be equitable,
in case there is a heavy demand from
vendors the number of week-ends a given
vendor can be allocated a site on the first-
come-first-serve basis can be restricted to
one or two in a month depending on
demand.
iii) A registered vendor can be permitted to
vend in designated vending zones without
restrictions, especially during non-rush
hours. Again in places like verandahs or
parking lots in areas such as central
business districts, e.g. Connaught Place in
New Delhi, vendors' markets can be
organized after the closing of the regular
markets. Such markets, for example, can
be run from 7.30 PM to 10.30 PM as night
bazaars on a roster basis or a first-come-
first-serve basis, with suitable restrictions
determined by the concerned TVC and
authorities.
iv) It is desirable that all City/Town Master
Plans make specific provisions for creating
new vending markets at the time of
finalization/revision of Master Plans, Zonal
Plans and Local Area Plans. The space
reserved in such plans should be
commensurate with the current number of
vendors and their rate of growth on
perspective basis (say 10-20 years) based
on rate of growth over a preceding 5- year
period. This Policy attempts to address
some of the above concerns, keeping the
interests of street vendors in view vis-à-vis
conflicting public interests.
3. Objectives
3.1 Overarching Objective The overarching
objective to be achieved through this Policy
is: To provide for and promote a supportive
environment for the vast mass of urban
street vendors to carry out their vocation
while at the same time ensuring that their
vending activities do not lead to
overcrowding and unsanitary conditions in
public spaces and streets.
3.2 Specific Objectives This Policy aims to
develop a legal framework through a model
law on street vending which can be adopted
by States/Union Territories with suitable
modifications to take into account their
geographical/local conditions. The specific
objectives of this Policy are elaborated as
follows:
a) Legal Status: To give street vendors a
legal status by formulating an appropriate
law and thereby providing for legitimate
vending/hawking zones in city/town master
or development plans including zonal, local
and layout plans and ensuring their
enforcement;
b) Civic Facilities: To provide civic facilities
for appropriate use of identified spaces as
vending/hawking zones, vendors' markets
or vending areas in accordance with
city/town master plans including zonal, local
and layout plans;
c) Transparent Regulation: To eschew
imposing numerical limits on access to
public spaces by discretionary licenses, and
instead moving to nominal fee-based
regulation of access, where previous
occupancy of space by the street vendors
determines the allocation of space or
creating new informal sector markets where
space access is on a temporary turn-by-
turn basis. All allotments of space, whether
permanent or temporary should be based
on payment of a prescribed fee fixed by the
local authority on the recommendations of
the Town Vending Committee to be
constituted under this Policy;
d) Organization of Vendors: To promote,
where necessary, organizations of street
vendors e.g. unions / co-operatives /
associations and other forms of
organizations to facilitate their collective
empowerment;
e) Participative Processes: To set up
participatory processes that involve firstly,
local authority, planning authority and
police; secondly, associations of street
vendors; thirdly, resident welfare
associations and fourthly, other civil society
organizations such as NGOs,
representatives of professional groups
(such as lawyers, doctors, town planners,
architects etc.), representatives of trade
and commerce, representatives of
scheduled banks and eminent citizens;
f) Self-Regulation: To promote norms of
civic discipline by institutionalizing
mechanisms of self-management and self-
regulation in matters relating to hygiene,
including waste disposal etc. amongst
street vendors both in the individually
allotted areas as well as vending
zones/clusters with collective responsibility
for the entire vending zone/cluster; and
g) Promotional Measures: To promote
access of street vendors to such services
as credit, skill development, housing, social
security and capacity building. For such
promotion, the services of Self Help Groups
(SHGs)/Co-operatives/ Federations/Micro
Finance Institutions (MFIs), Training
Institutes etc. should be encouraged.
4.2 Demarcation of Vending Zones The
demarcation of 'Restriction-free Vending
Zones', 'Restricted Vending Zones' and 'No-
vending Zones' should be city/town specific.
In order to ensure that the city/town master/
development plans provide for adequate
space for street vendors to run their
activities, the following guidelines would
need to be adhered to:
a) Spatial planning should take into account
the natural propensity of street vendors to
locate in certain places at certain times in
response to the patterns of demand for their
goods/services. For this purpose,
photographic digitalized surveys of street
vendors and their locations should be
conducted by competent professional
institutions/agencies. This is to be
sponsored by the concerned Department of
State Government/Urban Development
Authority/Local Authority.
b) Municipal Authorities should frame
necessary rules for regulating entry of
street vendors on a time sharing basis in
designated vending zones keeping in view
three broad categories - registered vendors
who have secured a license for a specified
site/stall; registered street vendors in a
zone on a time sharing basis; and
registered mobile street vendors visiting
one or the other vending zone;
c) Municipal Authorities should allocate
sufficient space for temporary 'Vendors'
Markets' (e.g. Weekly Haats, Rehri
Markets, Night Bazaars, Festival Bazaars,
Food Streets/Street Food Marts etc.) whose
use at other times may be different (e.g.
public park, exhibition ground, parking lot
etc.). These 'Vendors Markets' may be
established at suitable locations keeping in
view demand for the wares/services of
street vendors. Timing restrictions on
vending should be in accordance with the
need for ensuring non-congestion of public
spaces/maintaining public hygiene without
being ad hoc, arbitrary or discriminatory.
Rationing of space should be resorted to if
the number of street vendors exceeds the
number of spaces available. Attempts
should also be made to provide ample
parking areas for mobile vendors for
security of their vehicles and wares at night
on payment of suitable fees.
d) Mobile vending should be permitted in all
areas even outside the 'Vendors Markets',
unless designated as 'No-vending Zone' in
the zonal, local area or layout plans under
the master/development plan of each
city/town. 'Restricted Vending' and 'No
Vending Zones' may be determined in a
participatory manner. 'Restricted Vending
Zones' may be notified in terms of both
location and time. Accordingly, a particular
location may be notified as 'No-vending
Zone' only at particular times of the day or
days of the week. Locations should not be
designated as 'No-vending Zones' without
full justification; the public benefits of
declaring an area/spot as 'No-vending
Zone' should clearly outweigh the potential
loss of livelihoods and non- availability of
'affordable' and 'convenient' access of the
general public to street vendors. e) With the
growth of cities/towns in response to
urbanization, the statutory plans of every
new area should have adequate provision
for 'Vending/hawking Zones' and 'Vendors
Markets.'
4.5.1 Town Vending Committee
a) Designation or demarcation of
'Restriction-free Vending Zones'/ 'Restricted
Vending Zones'/No-vending Zones' and
Vendors' Markets should be carried out in a
participatory manner by the Town Vending
Committee, to be established at town/city
level. A TVC should consist of the Municipal
Commissioner/ Chief Executive Officer of
the urban local body as Chairperson and
such number of members as may be
prescribed by the appropriate Government,
representing firstly, local authority; planning
authority and police and such other
interests as it deems proper; secondly,
associations of street vendors; thirdly,
resident welfare associations and
Community Based Organisations (CBOs);
and fourthly, other civil society
organizations such as NGOs,
representatives of professional groups
(such as lawyers, doctors, town planners,
architects etc.), representatives of trade
and commerce, representatives of
scheduled banks and eminent citizens. This
Policy suggests that the representatives of
street vendors' associations may constitute
forty per cent of the number of the
members of the TVC and the other three
categories may be represented in equal
proportion of twenty per cent each. At least
one third of the representatives of
categories of street vendors, resident
welfare associations and other civil society
organizations should be women to provide
a gender focus in the TVC.
Adequate/reasonable representation should
also be provided to the physically
challenged in the TVC. The process for
selection of street vendors' representatives
should be based on the following criteria:
  Participation in membership-based
organisations; and
 Demonstration of financial accountability
and civic discipline.
b) The TVC should ensure that the
provision of space for vendors' markets are
pragmatic, consistent with formation of
natural markets, sufficient for existing
demand for the street vendors' goods and
services as well as likely increase in
accordance with anticipated population
growth.
c) The TVC should monitor the provision of
civic facilities and their functioning in
Vending Zones and Vendors' Markets and
bring shortcomings, if any to the notice of
the concerned authorities of the urban local
body. The TVC should also promote the
organisation of weekly markets, festival
bazaars, night bazaars, vending festivals on
important holidays etc. as well as take up
necessary improvement of infrastructure
facilities and municipal services with the
urban local body concerned.
4.5.2 The TVC shall perform the following
functions:
a) Undertake periodic survey/census to
assess the increase or decrease in the
number of street vendors in the
city/town/wards/localities;
b) Register the street vendors and ensure
the issuance of Identity Cards to the street
vendors after their preparation by the
Municipal Authority;
c) Monitor the civic facilities to be provided
to the street vendors in vending
zones/vendors' markets by the Municipal
Authority;
d) Assess and determine maximum holding
capacity of each vending zone;
e) Work out a non-discretionary system and
based on the same, identify areas for
hawking with no restriction, areas with
restriction with regard to the dates, days
and time, and, areas which would be
marked as 'No Vending Zones';
f) Set the terms and conditions for hawking
and take corrective action against
defaulters;
g) Collect fees or other charges as
authorized by the competent civic authority;
h) Monitor to ensure that those allotted
stalls/vending spots are actually using them
and take necessary action to ensure that
these are not rented out or sold to others;
i) Facilitate the organization of weekly
markets, festival bazaars, night bazaars,
vending festivals such as food festivals to
celebrate important occasions/holidays
including city/town formation days etc; and
j) Ensure that the quality of products and
services provided to the public is as per
standards of public health, hygiene and
safety laid down by the local authority.
4.5.4 Registration System for Street
Vending A system of registration of
vendors/hawkers and non-discretionary
regulation of their access to public spaces
in accordance with the standards of
planning and the nature of trade/service
should be adopted. This system is
described in greater detail below.
a) Photo Census of Vendors: The Municipal
Authority, in consultation with the TVC
should undertake a comprehensive,
digitalized photo census / survey / GIS
Mapping of the existing stationary vendors
with the assistance of professional
organisations/experts for the purpose of
granting them lease to vend from specific
places within the holding capacity of the
vending zones concerned.
b) Registration of Vendors: The power to
register vendors would be vested with the
TVC. Only those who give an undertaking
that they will personally run the vending
stall/spot and have no other means of
livelihood will be entitled for registration. A
person will be entitled to receive a
registration document for only one vending
spot for him/her (and family). He/she will
not have the right to either rent or lease out
or sell that spot to another person.
c) New Entrants: Those left out in the photo
census or wishes to take up street vending
for the first time will also have a right to
apply for registration as vendors provided
they give a statement on oath that they do
not have any other means of livelihood and
will be personally operating from the
vending spot, with help from family
members.
d) Identity Cards: Upon registration, the
concerned Municipal Authority would issue
an Identity Card with Vendor Code Number,
Vendor Name, Category of Vendor etc. in
writing to the street vendor, through the
TVC concerned containing the following
information:
i) Vendor Code No.
(ii) Name, Address and photograph of the
Vendor;
(iii) Name of any one Nominee from the
family/and/or a family helper;
(iv) Nature of Business;
(v) Category (Stationary /Mobile); and
(vi) If Stationary, the Vending Location.
Children below 14 years would not be
included in the Identity Card for conduct of
business.
e) Registration Fee: All vendors in each
city/town should be registered at a nominal
fee to be decided by the Municipal Authority
concerned based on the photo census or
any other reliable means of identification
such as the use of biometric techniques.
f) Registration Process:
i) The registration process must be simple
and expeditious. All declarations, oath, etc.
may be on the basis of self-declaration.
ii) There should preferably be no numerical
restriction or quotas for registration, or prior
residential status requirements of any kind.
iii) Registration should be renewed after
every three years. However, a vendor who
has rented out or sold his spot to another
person will not be entitled to seek re-
registration.
iv) There may be a "on the spot" temporary
registration process on renewable basis, in
order to allow the street vendors to
immediately start their earnings as the
registration process and issue of I-card etc.
may take time.
5.1 If authorities come to the conclusion in
any given instance that genuine public
obstruction of a street, side walk etc. is
being caused by street vending, there
should be a mechanism of due notice to the
street vendors. The vendors should be
informed/warned by way of notice as the
first step before starting the clearing up or
relocation process. In the second step, if
the space is not cleared within the notified
time, a fine should be imposed. If the space
is not cleared even after the notice and
imposition of fine, physical eviction may be
resorted to. In the case of vending in a 'No-
vending Zone', a notice of at least a few
hours should be given to a street vendor in
order to enable him or her clear the space
occupied. In case of relocation, adequate
compensation or reservation in allotment of
new vending site should be provided to the
registered vendors.
5.2 With regard to confiscation of goods
(which should happen only as a last resort
rather than routinely), the street vendors
shall be entitled to get their goods back
within a reasonable time on payment of
prescribed fee, determined by TVC.
6.6 Allotment of Space/Stationary Stalls
Stationary vendors should be allowed
space/stalls, whether open or covered, on
license basis after photo census/ survey
and due enquiry in this regard, initially for a
period of 10 years with the provision that
only one extension of ten years shall be
provided thereafter. After 20 years, the
vendor will be required to exit the stationary
stall (whether open or covered) as it is
reasonably expected that the licensee
would have suitably enhanced his/her
income, thereby making the said stall
available for being licensed to a person
belonging to the weaker sections of society.
Wherever vending stall/vending space is
provided to a vendor on a lease basis for a
certain number of years, care should be
taken that adequate reservation is made for
the SCs/STs in accordance with their share
in the total population of the city. Similarly,
priority should be given to physically
challenged/disabled persons in the
allocation of vending stalls/vending spaces
as vending space can be a useful medium
for rehabilitating physically
challenged/disabled persons. Further, a
suitable monitoring system should be put in
place by the TVC to ensure that the
licensees of the stationary stalls do not sell/
let out their stalls.
6.7 Rehabilitation of Child Vendors To
prevent vending by children and seek their
rehabilitation wherever such practice exists,
in conformity with the Child Labour
(Prohibition & Regulation) Act,1986, the
State Government and Municipal
Authorities should undertake measures
such as sending the children to regular or
bridge schools, imparting them skills
training etc. 6.8 Promoting Vendors'
Organisations To enable street vendors to
access the benefits of social security
schemes and other promotional measures
in an effective manner, it is essential that
the street vendors are assisted to form their
own organizations. The TVC should take
steps to facilitate the formation and smooth
functioning of such organizations of street
vendors. Trade Unions and other Voluntary
Organisations should play an active role
and help the street vendors to organise
themselves by providing counseling and
guidance services wherever required."
16. For facilitating implementation of the
2009 Policy, we issue the following
directions:
) Within one month from the date of receipt
of copy of this order, the Chief Secretaries
of the State Governments and
Administrators of the Union Territories shall
issue necessary instructions/directions to
the concerned department(s) to ensure that
the Town Vending Committee is constituted
at city / town level in accordance with the
provisions contained in the 2009 Policy. For
the cities and towns having large municipal
areas, more than one Town Vending
Committee may be constituted.
(ii) Each Town Vending Committee shall
consist of representatives of various
organizations and street vendors / hawkers.
30% of the representatives from the
category of street vendors / hawkers shall
be women.
iii) The representatives of various
organizations and street vendors / hawkers
shall be chosen by the Town Vending
Committee by adopting a fair and
transparent mechanism.
iv) The task of constituting the Town
Vending Committees shall be completed
within two months of the issue of
instructions by the Chief Secretaries of the
State and the Administrators of the Union
Territories.
v) The Town Vending Committees shall
function strictly in accordance with the 2009
Policy and the decisions taken by it shall be
notified in the print and electronic media
within next one week.
vi) The Town Vending Committees shall be
free to divide the municipal areas in
vending / hawking zones and sub-zones
and for this purpose they may take
assistance of experts in the field. While
undertaking this exercise, the Town
Vending Committees constituted for the
cities of Delhi and Mumbai shall take into
consideration the work already undertaken
by the municipal authorities in furtherance
of the directions given by this Court. The
municipal authorities shall also take action
in terms of Paragraph 4.2(b) and (c).
vii) All street vendors / hawkers shall be
registered in accordance with paragraph
4.5.4 of the 2009 Policy. Once registered,
the street vendor / hawker, shall be entitled
to operate in the area specified by the Town
Vending Committee.
viii) The process of registration must be
completed by the municipal authorities
across the country within four months of the
receipt of the direction by the Chief
Secretaries of the States and
Administrators of the Union Territories.
ix) The State Governments / Administration
of the Union Territories and municipal and
local authorities shall take all the steps
necessary for achieving the objectives set
out in the 2009 Policy.
x) The Town Vending Committee shall meet
every month and ensure implementation of
the relevant provisions of the 2009 Policy
and, in particular, paragraph 4.5.1 (b) and
(c).
xi) Physically challenged who were allowed
to operate PCO's in terms of the judgment
reported in (2009) 17 SCC 231 shall be
allowed to continue to run their stalls and
sell other goods because running of PCOs.
is no longer viable. Those who were
allowed to run Aarey/Sarita shall be allowed
to continue to operate their stalls.
xii) The State Governments, the
Administration of the Union Territories and
municipal authorities shall be free to amend
the legislative provisions and/or delegated
legislation to bring them in tune with the
2009 Policy. If there remains any conflict
between the 2009 Policy and the municipal
laws, insofar as they relate to street
vendors/hawkers, then the 2009 Policy
shall prevail.
xiii) Henceforth, the parties shall be free to
approach the jurisdictional High Courts for
redressal of their grievance and the
direction, if any, given by this Court in the
earlier judgments / orders shall not impede
disposal of the cases which may be filed by
the aggrieved parties.
xiv) The Chief Justices of the High Courts
are requested to nominate a Bench to deal
with the cases filed for implementation of
the 2009 Policy and disputes arising out of
its implementation. The concerned Bench
shall regularly monitor implementation of
the 2009 Policy and the law which may be
enacted by the Parliament.
xv) All the existing street vendors / hawkers
operating across the country shall be
allowed to operate till the exercise of
registration and creation of vending /
hawking zones is completed in terms of the
2009 Policy. Once that exercise is
completed, they shall be entitled to operate
only in accordance with the
orders/directions of the concerned Town
Vending Committee.
xvi) The provisions of the 2009 Policy and
the directions contained hereinabove shall
apply to all the municipal areas in the
country.
17. The aforesaid directions shall remain
operative till an appropriate legislation is
enacted by Parliament or any other
competent legislature and is brought into
force.
18. The parties, whose applications have
remained pending before this Court, shall
be free to institute appropriate proceedings
in the jurisdictional High Court. If so
advised, the aggrieved person shall be free
to file petition under Article 226 of the
Constitution.
19. All the appeals and I.As are disposed of
in the manner indicated above.
20. The Registry is directed to send copies
of this order to the Chief Secretaries of all
the States, Administrators of the Union
Territories and Registrar Generals /
Registrars (Judicial) of all the High Courts,
who shall place the order before the Chief
Justice for consideration and necessary
directions.
..................J. (G.S. SINGHVI)
..................J. (V. GOPALA GOWDA)
New Delhi;
September 9, 2013