Holding that the Supreme Court "cannot control the influx of people to different metro cities and towns in search of livelihood in the background of the huge unemployment problem in this country" and also that "structured regulation and legislation is urgently necessary to control and regulate fundamental right of hawking of vendors and hawkers", a Division Bench of the Supreme Court conferred upon the Government of Delhi the right to determine the regulations and address the problem of the hawkers till 30th June, 2011, by which time the Government was directed to enact a law to this end.
The Court, after examining the earlier decisions on this aspect noted that the right to carry on trade was the fundamental right of the vendors and hawkers and thus could not be controlled or interfered without in the absence of a law to that effect. However the Court also woefully noted the conspicuous absence of a law to regulate such rights. Therefore directing the Government to enact a law to this end, the Supreme Court for the meanwhile granted the Government to deal with the issue while also administering the dispute resolution mechanism to this end.
The Bench made important observations in its decision in Gainda Ram v. M.C.D. and others to this effect as under;
42. It has been held by the Constitution Bench of this Court in Sodan Singh (supra) that right to hawk on the streets of Delhi is a fundamental right under Article 19(1)(g) of the Constitution but such right is not absolute and is subject to reasonable restrictions under Article 19(6) of the Constitution.
43. On a perusal of the aforesaid constitutional provision, it is clear that the rights under Article 19(1)(g) can only be controlled by law as contemplated in Article 19(6). Such law can impose reasonable restrictions. The relevant constitutional provisions are set out:-
"19(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 interest 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."
44. On an analysis of the provisions under Article 19(6), it is clear that the provisions under Article 19(6) are broadly in two parts. The first part authorizes that nothing in sub-clause (g) of Article 19(1) shall affect the operation of existing law in so far it imposes reasonable restrictions, in the interest of general public, on rights conferred by Article 19(1)(g). The second part is that nothing contained in Article 19(1)(g) shall prevent the State from making any law imposing, in the interest of general public, reasonable restrictions on the exercise of rights conferred by Article 19(1)(g). Here we are not concerned with clauses (i) and (ii) of Article 19(6).
45. It is, therefore, clear that reasonable restrictions on the fundamental right under Article 19(1)(g) can be imposed either by existing law or by a law which may be made by a State in the interest of general public.
46. Therefore, nothing short of law can impose reasonable restrictions on a citizen's fundamental right to carry on hawking under Article 19(1)(g) of the Constitution.
47. In Bijoe Emmanuel and others vs. State of Kerala and others (AIR 1987 SC 748) this Court held, "the law is now well settled that any law which may be made under clauses (2) to (6) of Article 19 to regulate the exercise of the right to the freedoms guaranteed by Article 19(1)(a) to (e) and (g) must be a law having statutory force and not a mere executive or departmental instructions." (para 15 page 753)
48. In coming to the aforesaid formulation in Bijoe Emmanuel (supra) this Court relied on two Constitution Bench decisions of this Court in the case of Kameshwar Prasad and others vs. State of Bihar and another (AIR 1962 SC 1166) and another Constitution Bench decision of this Court in Kharak Singh vs. State of U.P. and others (AIR 1963 SC 1295).
49. In the instant case, this Court has discussed the legal provisions in the NDMC and DMC Act which seek to control the fundamental right of the petitioners to carry on their business of hawking.
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54. Neither the said policy nor the scheme framed by the NDMC can be called law, except of course the provisions of Sections 225, 226, 330 and 369(2) of NDMC Act mentioned hereinabove.
55. Section 388 of the NDMC Act empowers the NDMC to frame bye-laws. This power is categorized under different clauses of sub-section 1 of Section 388. Under clause (D) of the said sub-section there is a provision for making bye-laws relating to the streets. Section 388(1)(D)(5) of NDMC Act provides as follows:
"388(1)(D)(5) the permission, regulation or prohibition or use or occupation of any street or place by it, itinerant vendors or hawkers or by any person for the sale of articles or the exercise of any calling or the setting up of any booth or stall and the fees chargeable for such occupation;"
56. The bye-laws have to be laid before Parliament under Section 389 of the said Act. These bye-laws may have the status of subordinate or delegated legislation. Penalty has been provided for breach of bye-laws under Section 390 of the Act.
57. It does not appear that the NDMC has made any bye-law under Section 388 of the NDMC Act so as to regulate the fundamental right of the hawkers to hawk or squat on the streets of Delhi. The schemes which have been framed under the direction of this Court or the 2004 Policy which has been framed by the Government, cannot said to be framed under the said power to frame byelaws and do not have the status of law or even subordinate legislation.
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65. 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 provision 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.
66. Certain broad facts cannot be lost sight of. Whatever power this Court may have had, it possibly cannot, in the absence of a proper statutory framework, control the ever increasing population of this country. Similarly this Court cannot control the influx of people to different metro cities and towns in search of livelihood in the background of the huge unemployment problem in this country. While there is a burning unemployment on one hand, on the other hand there is a section of our people, that, having regard to its ever increasing wealth and financial strength, is buying any number of cars, scooters and three wheelers. No restriction has apparently been imposed by any law on such purchase of cars, three wheelers, scooters and cycles. There is very little scope for expanding the narrowing road spaces in the metropolitan cities and towns in India. Therefore, the problem is acute. On the one hand there is an exodus of fleeting population to metro cities and towns in search of employment and on the other hand with the ever increasing population of cars and other vehicles in the same cities, the roads are choked to the brim posing great hazards to the interest of general public. In the midst of such near chaos the hawkers want to sell their goods to make a living. Most of the hawkers are very poor, a few of them may have a marginally better financial position. But by and large they constitute an unorganized poor sector in our society. Therefore, structured regulation and legislation is urgently necessary to control and regulate fundamental right of hawking of these vendors and hawkers.
67. This Court finds that innumerable IAs have been filed in this Court along with various objections by the hawkers, most of the time collectively, complaining about steps taken by municipal authorities, namely, NDMC and MCD to prevent them from hawking and vending. This Court has tried its best to somehow deal with the situation. But it is difficult for this Court to tackle this huge problem in the absence of a valid law. The nature of the problem defies a proper solution by this Court by any judicially manageable standards.
68. This Court, therefore, disposes of this writ petition and all the IAs filed with direction that the problem of hawking and street vending may be regulated by the present schemes framed by NDMC and MCD up to 30th June, 2011. Within that time, the appropriate Government is to legislate and bring out the law to regulate hawking and hawkers' fundamental right.
69. Till such time the grievances of the hawkers/vendors may be redressed by the internal dispute redressal mechanisms provided in the schemes.
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75. In view of such schemes, the hawkers, squatters and vendors must abide by the Dispute Redressal scheme mentioned above. There should not be any direct approach to this Court by way of fresh petition or IAs, bypassing the Dispute Redressal Mechanism provided in the scheme.
76. However, before 30th June, 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.
77. This Court is giving this direction in exercise of its jurisdiction to protect the fundamental right of the citizens. The hawkers' and squatters' or vendors' right to carry on hawking has been recognized as 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 harmonized 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.
78. The second reason is that the appropriate Government has already enacted a Bill and, therefore, the initial decision making in the field of legislative exercise is complete. It has, of course, to be converted into a law by following the Constitutional process. That is why time till 30th June, 2011 is given.
79. The fundamental right of the hawkers, just because they are poor and unorganized, cannot be left in a state of limbo nor can it left to be decided by the varying standards of a scheme which changes from time to time under orders of this Court.
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