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‘Hawkers have a fundamental right to trade' by J Venkatesan

Observing that hawkers have a fundamental right to carry on their business, the Supreme Court has asked the Delhi Government to enact a law to regulate their trade keeping in mind also the right of commuters to move freely and use the roads without any impediment.

A Bench of Justice G. S. Singhvi and Justice A. K. Ganguly disposing of a batch of appeals filed by hawkers said “before June 30, 2011, the appropriate government is to enact a law on the basis of the Bill mentioned {by the authorities} or on the basis of any amendment thereof so that the hawkers may precisely know the contours of their rights”.

Writing the judgment, Justice Ganguly said, “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 recognised as fundamental right under Article 19 (1) (g) of the Constitution. 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).”

The Bench said “these two apparently conflicting rights must be harmonised and regulated by subjecting them to reasonable restrictions only under a law. The question is vitally important to a very large section of people, mostly ordinary men and women.” The Bench pointed out that the government had already brought in a Bill and the initial decision-making in the field of legislative exercise was complete and it should be converted into a law by following the Constitutional process by June 30, 2011.

The Bench was of the view that the fundamental right of the hawkers, just because “they are poor and unorganised, 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”.

The Bench pointed out that hawking on the streets of the Capital, whose municipal limits had expanded over the years, had been the subject matter of several proceedings in this Court.

However, the controversy did not rest there had the problem of hawking come to an end.

Quoting an earlier judgment on the need for regulating hawkers, the Bench said “considering that an alarming percentage of population in our country lives below the poverty line and when 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”.