Municipal Corporation of Greater Mumbai [commonly known as Brihanmumbai Municipal Corporation (BMC)], responsible for regulating street vending in Bombay, has been grappling with the ‘street vendor nuisance, encroachment and other illegalities’ since at least the 1880s. According to the Government of India, there are around 2,50,000 vendors in Bombay. Their rights are protected under the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act 2014. This Act empowers a participatory committee called Town Vending Committee to regulate street vending, conduct a survey of all street vendors and formalise them.
There are four major challenges in the way the Government of Maharashtra has implemented this Act.
First, Rule 22 of the Maharashtra Street Vendors (Protection of Livelihood and Regulation of Street Vending) (Maharashtra) Rules, 2016 empowers the Municipal Commissioners and the State Government to veto TVC proposals. This veto power dilutes participatory governance and may be misused to make the TVC dysfunctional. This veto power is against the Street Vendors Act, 2014 as the Act expressly supersedes all other local laws. Deciding whether a proposal by the TVC violates another law is a judicial function and vesting the power of judicial review in an executive body is also a violation of the doctrine of separation of powers.
Second, six years have passed since the enactment of the Street Vendors Act, 2014 but the Government of Maharashtra has still not formulated a statutory scheme as per the mandate of the Act. Although the Government formulated a scheme in 2017, Azad Hawkers Union challenged it on the grounds that the scheme was not framed in due consultation with the local authority and TVC. Bombay High Court ruled that the scheme is not legitimate as it did not comply with the consultation mandate.
Third, the 2014-Vendor survey did not comply with any statutory requirement - either with the Street Vendors Act, 2014 or with 2009-Policy. In Azad Hawkers Union 2017, street vendors argued that a survey is not possible in the absence of TVCs with duly elected members and that without the survey, street vendor elections cannot be conducted. Bombay High Court called it a chicken- egg question and addressed this legal conundrum by ruling that the first elections to the TVC may be based on the surveys conducted under the 2009 Policy. The 2009 Policy prescribes a census like survey and hiring of a professional agency for conducting the survey. But the 2014-registration drive was based on application submission and not census-like survey. BMC merely distributed forms and asked the vendors to submit the filled form later, along with other documents. Also, BMC did not hire any professional agency to undertake a survey.
Fourth, even though the Street Vendors Act, 2014 does not prescribe requirements like domicile certificate for the purpose of registration and licensing, the Government of Maharashtra has added a domicile certificate to the list of required documents. This requirement has brought down the number of eligible street vendors from 23,265 to 5,000 only.
Another exclusionary policy is the ban on roadside cooking. Previously the Municipal Commissioner had advocated for a ban on the vending of any cooked food articles. But the Supreme Court in Bombay Hawkers Union case found such a condition to be an unreasonable restriction. This issue has been repeatedly discussed both in the Supreme Court and the Bombay High Court. With the enactment of the Street Vendors Act, 2014, no such restrictions were placed on roadside cooking or the sale of cooked food. Yet, on 23 October 2015, Bombay High Court refused to accord protection to those vendors who cook food at the place of street vending. The judiciary is therefore reading a prohibition in the law that the Parliament has not legislated.