If the lawmakers demand one good reason why the judiciary trespasses into their field of legislation, the Supreme Court provided it a few days ago. It passed a virtual law, like the Vishaka judgment to prevent the harassment of women in workplaces, to give trading space to hawkers in city streets. It did not make headlines like "Occupy Wall Street", but this is no less significant since the issue was "occupy every street", as it were.
There is no law in force to regulate the trade that employs an estimated 10 million - said to be the second-largest unorganised sector workforce in India. The total turnover of hawkers in Mumbai is estimated to be Rs 12,000 crore, Rs 10,000 crore in Delhi, and Rs 8,800 crore in Kolkata. Since their trade is not legalised, they pay an estimated bribe of Rs 400 crore (in 1998) to stay on the streets, annoying residents and pedestrians. This conflict of interest surfaced in the Supreme Court as long ago as in 1954 in Saghir Ahmad vs State of UP. For the past four decades, hawkers from the metros have approached the court in class litigation to assert their freedom of trade. In the 1985 judgment, Sodan Singh vs New Delhi Muncipal Committee, the judges lamented that "in spite of repeated suggestions by this court nothing has been done in this respect", namely pass a law like in England to earmark places for the trade.
Over the years, the problem has spilled over to every street. With unregulated parking of vehicles in the new "autopia", and street vendors occupying the rest of the road, the weakest of all are the residents and pedestrians whose fundamental right of movement and right to life are squeezed to the minimum. The court has passed half a dozen judgments for regulating street trade, and repeatedly asked local authorities to make equitable arrangements benefiting both the traders and the people. The hawkers, being unorganised, have no political support. It is easier for the Left to take up the cause of the organised sector such as government undertakings and public institutions.
It was in this situation that the court took up the 2002 batch of petitions, Maharashtra Ekta Hawkers Union vs Muncipal Corporation, and gave it some finality last fortnight. Earlier, it had passed several orders in that case, and once expressed satisfaction that the government had drafted the National Policy on Urban Street Vendors, 2009 and a model Street Vendors (Protection of Livelihood and Regulation of Street Vending) Bill, 2012. Though the Lok Sabha has passed the Bill, there is no enforceable law, so, the problem has only got worse, with affluenza of one section on the social divide and rising rural unemployment, population growth and migration due to displacement.
Earlier, the Supreme Court had barred all other courts from dealing with the issue; but now it has allowed all affected parties to move high courts in their respective states. The 2009 policy was given more teeth, by adopting most proposals. Further, the court passed 16 directions to the authorities all over the country. Till the governments do the "needful", said the judgment, "it will be apposite for the Supreme Court to step in and direct that the 2009 policy should be implemented throughout the country." There was no doubt left about the legislative nature of the directions since it emphasised that those directions "shall remain operative till an appropriate legislation is enacted by Parliament or any other competent legislature and is brought into force." This was identical to the words used in the Visakha case.
According to the orders, the towns and cities shall have vending/hawking zones and sub-zones, earmarked with the help of experts. The planning and implementation of the policy will be done by town vending committees, which shall be constituted in all urban centres. Such committees shall consist of representatives of various organisations and street vendors, and 30 per cent of them shall be women. The representatives shall be chosen by adopting a fair and transparent mechanism. The decisions taken by the committees shall be notified in the print and electronic media. Within four months, all hawkers shall be registered with the authorities.
The judiciary has also a continuing role in the matter. Each high court will have a bench dealing with the issue of street vending. It shall regularly monitor the implementation of the policy and directions. It is indeed a tall order.
However, in reality, the problem is not "judicially manageable". This was conceded three years ago by the Supreme Court itself in the case, Gainda Ram vs Municipal Corporation of Delhi. It then left the issues to the executive. The latest decision does the same. But the huge difference this time is that the court has sent its judgment to the chief secretaries after pinning a law onto it.