Centre Not Competent To Legislate Street Vending Laws: Petitioners Tell Delhi High Court

The Delhi High Court on Thursday continued hearing a bunch of pleas challenging the vires of Street Vendors Act, 2014.

Justice Vipin Sanghi and Justice Jasmeet Singh heard Senior Advocate Sanjeev Ralli appearing for the petitioners, who have challenged the legislative competence of the Central Government to enact the impugned Act of 2014.

During the course of hearing today, Ralli pointed out that under Entries 26 (Trade and commerce) and 28 (Markets and fairs) in State List under the Seventh Schedule to the Indian Constitution, it is the State Government which is empowered to enact laws pertaining to markets, which includes street vending.

"The concept of market as such connotes a place where buying/ selling activities take place. Involvement of street vendors and regulation of their activities presupposes existence of a market. Therefore, if any law is to be framed to regulate the activities that take place in a market and at the same time it has impact on market as a whole then real subject on which law has been framed would definitely fall in Entry 28 of List II- Market and fairs," Ralli submitted.

He added that four entries under the Concurrent List, i.e., Entries 20 (Economic and social planning), 22 (Trade unions; industrial and labour disputes), 23 (Social security and social insurance; employment and unemployment), 24 (Welfare of labour), do not cover this subject as such and hence the Centre could not have framed a law regulating street vending.

"See the scheme of the entire Act. All sections pertain to activities being carried out in market only… Specific entries override special entries," he insisted.

At this juncture, the Bench asked Ralli to present before it the process laid down by the Supreme Court through various precedents, for the purpose of interpreting legislative entries in 7th Schedule.

Justice Sanghi said,

"Each of these entries have to be given their full meaning. So, what is the manner of understanding and interpreting these entries, how is this exercise to be undertaken, we need to first know that."

"Economic and social planning' is very vague and wide. You can bring within it anything under the sun, even Reservation. That's what the Supreme Court will tell you how you will go about it."

Ralli then argued on the aspect of "holding capacity" under the Act which is defined as the the maximum number of street vendors in any vending zone, which is determined by the local authority on the recommendations of the Town Vending Committee.

According to Ralli, the exercise which is to be undertaken by TVC to come to its recommendations has to be a physical survey of the entire area requiring inherent capabilities of those persons who are members of the TVCs.

He also submitted that the TVC has to be constituted of those persons who would be justifying the exercise and will be in a position to do it in an independent, impartial and efficient manner. He added that if such exercise is undertaken by someone with inherent interest in the subject matter, the participation of such persons will be questionable.

"Any activity if it is unregulated and is going beyond the limit, it is going to impact the life of each and every citizen of the city to that extent. Therefore, the exercise or formation of TVC has to be kept in mind by which all the concerned interests are very much present in the TVC formed and those persons also should be such who are conversant to the subjects which are relevant for the matter and have the actual experience and knowledge about things which definitely would involve those who are either operating from those areas where the particular TVC is being constituted or they are otherwise aware of practical difficulties and ground realities of the area. Then only there will be a more constructive functioning and results of the TVC," he added.

Ralli then relied on various relevant provisions in the Act concerning the functioning and constitution of the TVCs.

He said that the provision does not state about the number of persons who will be selected or nominated against representations if one looks at the local authority, medical associations of vendors or market associations and traders.

At this juncture, Justice Sanghi remarked:

"Presently we are only looking at the section. One thing is the Act which is framed by the Parliament. So when we are scrutinising validity of any provision of the Act, we can't be coloured in our view by what has actually the way it has worked by a particular government. That action of the GNCTD can be questioned but that by itself cannot be a reason to hold that this provision is bad because this is only saying minimum 40% and 10% to the NGOs. How does that become arbitrary and how is that bad?"

The matter will now be heard further on November 24.

In the earlier hearing, the bench had expressed its displeasure over the fact that there are no experts in the Town Vending Committee and that it would like to hear the challenge so as to ascertain the flaws and the fallacies in the implementation process.

It also remarked that prima facie it seemed that something had to be said on the implementation of the Act.

Previously, pulling up the Delhi Government over the implementation of the Act, the bench remarked "No more of politics, populism…Please get down to some real work."

The Bench also cautioned the authorities that the market associations can have a maximum representation of 40% on the TVC, in spirit of the 2014 Act.

The Bench however made it clear that it is not against vendors or squatting activities.

"Why are you saying this order is anti-anybody? We're only saying no illegal vending. Why should any illegal hawker be there in the first place?" Justice Singh had said.

"We're not against squatters; they are an essential part of our community. They are honest people, haven't taken law in their own hands, are not snatching chains. They're trying to make out a living for themselves and their families. They are our citizens; our people," it had added.

Case Title: New Delhi Traders Association v. GNCTD