Hawking on the streets of Delhi, whose municipal limits have expanded over the years, has been the subject matter of several proceedings in Supreme Court. Initially in the early sixties, this problem surfaced when Supreme Court, hearing an appeal from a decision dated 4th August, 1966 of the Punjab High Court, Circuit Bench at Delhi, dealt with this question in some detail in the case of Pyare Lal v. New Delhi Municipal Committee and Anr. : AIR 1968 SC 133.
Pyare Lal Case
In Pyare Lal (supra), sale of cooked food on public streets which was creating the problems of unhygienic conditions came up before Supreme Court in the context of a resolution of the New Delhi Municipal Committee stopping such sale. A three-Judge Bench of Supreme Court held that no person carrying on the aforesaid business of selling cooked food has any fundamental right to carry on street vending particularly in a manner which creates unsanitary and unhygienic conditions in the neighbourhood.
However, the controversy did not rest there, nor did the problem of hawking come to an end in view of Pyare Lal’s judgment. Several cases were filed thereafter in different Courts and ultimately the leading decision was rendered in the case of Sodan Singh and Ors. v. New Delhi Municipal Committee and Ors. : (1989) 4 SCC 155 by a Constitution Bench of Supreme Court.
Sodan Singh Case
In Sodan Singh (supra) the petitioners, as hawkers, were carrying on business by squatting on the pavements of Delhi and New Delhi and those squatters alleged that they were allowed by the Municipality to carry on such business on payment of charges described as Tehbazari. As the Municipal Authority subsequently refused to permit them to continue their business, that action of the municipality according to those petitioners, interfered with their fundamental right to carry on business under Articles 19(1)(g) and 21 of the Constitution of India.
The correctness of the decision in Pyare Lal (supra) was also doubted. As such the matter was placed before the Constitution Bench.
In Sodan Singh (supra) there was a paradigm shift by the Court on the interpretation of fundamental right of a hawker or a squatter under Article 19(1)(g) to carry on business. Various judgments of Supreme Court were considered and in paragraph 18 (at page 169 of SCC) Justice Sharma (as His Lordship then was) delivering the majority judgment expressly held by referring to Pyare Lal (supra) that, “we do not agree with these observations.”
However, His Lordship was quick to add that in the facts considered in Pyare. Lal (supra) the decision was correct.
In our judgment, the decision in Pyare Lal (supra) was thus distinguished and confined to the facts of that case.
However, Supreme Court in Sodan Singh (supra) took a very broad view of a citizens right under Article 19(1)(g) following its decisions in the case of Fertilizer Corporation Kamgar Union (Regd.) Sindri and Ors. v. Union of India and Ors. : (1981) 1 SCC 568 and also the decision of this Court in K. Rajendran and Ors. v. State of Tamil Nadu and Ors. : (1982) 2 SCC 273 and the decision of this Court in Bombay Hawkers’ Union and Ors. v. Bombay Municipal Corporation and Ors. : (1985) 3 SCC 528 and the Constitution Bench decision of this Court in the case of Olga Tellis and Ors. v. Bombay Municipal Corporation and Ors. : (1985) 3 SCC 545.
Supreme Court in Sodan Singh (supra) came to the conclusion that the hawkers and SQUATTERS HAVE A FUNDAMENTAL RIGHT TO CARRY ON BUSINESS ON THE PUBLIC STREET, but the same should be regulated. It was further held by Justice Sharma (as His Lordship then was) that the right of a hawker to transact business, while going from place to place, is recognized in India for a long period. Of course such right is subject to regulation since public streets demand its use by the public and the streets are not meant to facilitate some citizens to carry on any private business.
However, such right of hawking for carrying on business on the street cannot be denied if they are properly regulated. The learned Judge made it very clear that the said right is subject to reasonable restrictions under Clause (6) of Article 19. The learned Judge relying on the ratio in Saghir Ahmad and Anr. v. State of U.P. and Ors. : AIR 1954 SC 728 held that streets in India are vested in the municipality and they have to be used by the municipalities as trustees. The learned Judge while delivering the judgment observed:
“We as a court in a welfare State do realise the hardship to which many of the petitioners may be exposed if they are prevented from carrying on the business. The only solution for this is the adoption of the policy of full employment, which even according to leading economists like Keynes will alleviate the problems of the unemployed to some extent. But as students of economics we also realise that every human activity has the ‘optimum point’ beyond which it becomes wholly unproductive.
It is for the government to take reasonable steps to prevent movement of people from rural areas to urban areas. That can be done by the development of urban centres in rural areas removed from each other at least by one hundred miles. This is more a matter of executive policy than for judicial fiat. We hope and trust that in administering the laws in force the authorities will keep in view humane considerations….”
Justice Kuldip Singh, in a concurring but a different opinion, interpreted the right under Article 19(1)(g) as comprehensively as possible to include all the avenues and modes through which a man earns his livelihood excepting of course gambling and trafficking in women. The learned Judge’s interpretation of Article- 19(1)(g) if we may say so, with respect, is remarkably brilliant. His Lordship held,
“in a nutshell the guarantee takes into its fold any activity carried on by a citizen of India to earn his living. The activity of course must be legitimate and not anti- social like gambling, trafficking in women and the like.”
The learned Judge referred to the decision in Bombay Hawkers’ Union (supra) and also to the decision of Supreme Court in Municipal Corporation of Delhi v. Gurnam Kaur (1989) 1 SCC 101 and highlighted the importance of framing regulations to regulate hawking business by creating hawking and non-hawking zones.
The learned Judge in his concurring judgment made a very pertinent observation after comparing the position of street trading in India with that prevailing in other countries and noted that even in England where there is complete social security and the citizens are not driven to the streets to make out a living out of poverty and sheer unemployment, street trading is recognized.
Considering that an alarming percentage of population in our country lives below poverty line, the learned Judge held that when the citizens by gathering meagre resources try to employ themselves as hawkers and street traders, they cannot be subjected to a deprivation on the pretext that they have no right. The learned Judge deplored that despite repeated, suggestions by this Court, the Government has not yet framed regulations for regulating citizen’s right to carry on hawking business on the, streets.
Adequate Procedure to tackle the issue of Hawking
Subsequently, also again Supreme Court had to deal with large number of petitions filed by hawkers claiming a right to carry on business in different parts of the pavements under the control of Municipal Corporation of Delhi (MCD) and New Delhi Municipal Council (NDMC).
In Sodan Singh (supra) this Court was of the view that detailed provisions, dealing with all relevant aspects, and capable of solving the problems of hawking in a fair and equitable manner should be made and the respondents (municipal authorities) should proceed as soon as it may be possible.
The Court felt that municipal authorities would be well advised to consider suggestions of the hawkers while finalizing the schemes with due regard to the requirements of the relevant laws e.g. Delhi Police Act, 1978, the Delhi Control of Vehicular and other Traffic on Roads and Streets Regulations, 1980 etc.
The Constitution Bench in Sodan Singh (supra) clarified in paragraph 24 of the judgment that the demand of the petitioners therein that the hawkers must be permitted on every road in the city, could not be allowed, if the road was not wide enough to conveniently manage the traffic on it, no hawking may be permitted at all, or may be sanctioned only once a week, say on Sundays when the rush considerably thinned out.
Hawking could also be justifiably prohibited near hospitals or where necessity of security measures so demanded. The demand that permission to squat on a particular place must be on a permanent basis was also rejected on the ground that circumstances were likely to change from time to time.
Follow-up of the Decision
Pursuant to the directions of Hon’ble Court, a scheme was prepared by the NDMC (New Delhi Municipal Council) dated 10.11.1989 and the same was placed before the Lok Adalat held at Supreme Court on November 19, 1989. Thereupon, a general order was passed by the Lok Adalat after going through the scheme submitted by NDMC on the guidelines laid down by Supreme Court in Sodan Singh (supra) for implementation of the scheme.
A committee consisting of two members of NDMC and a District Judge or a Higher Judicial Officer was to be constituted. Decision rendered by the committee was to be made binding and final.
The Judicial Officer for the committee was to be nominated with the concurrence of the High Court. Therefore, with the direction of this Hon’ble Court, a Judicial Officer (Shri G.P. Thareja) was nominated by the High Court to preside over the Committee which was constituted for looking into the matter of hawkers in the NDMC area.
Thereupon, by an order dated 1st February 1990, this Hon’ble Court directed that because the Committee which had been constituted as aforesaid had become functional, such Committee should proceed to examine the claims of hawkers. As a matter of first lot, first 100 claims were to be taken up for examination in view of the scheme prepared by the Municipal Committee in terms of the direction of the Court.
Thereafter, the said Thareja Committee gave its interim report to Supreme Court and the Court in its order dated 29.1.1991 noticed the said interim report and found that 5000 applications were pending before the Committee.
A complaint was made to Supreme Court that the Thareja Committee was applying very strict norms for proof of eligibility. However, Court by its order dated 13.3.1992 rejected the said grievance.