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The Role of Defence of Necessity in Saving Vendors Right to Livelihood

Street vendors and hawkers have formed an integral part of the Indian economy since ancient times. The vendor population holds huge importance in the unorganized urban sector in the country, catering to the needs of millions of city dwellers across the nation. Despite being extremely affordable and convenient, the inherent class bias present in both the general population and government apparatus has led to them being labelled as a public nuisance.

They are perceived as encroachers of public property, causing traffic jams and engaging with anti-social elements. This hostility is what resulted in street vending as illegal for more than sixty years in this country, which has caused our vendors and hawkers immense suffering and financial damage.

In 2014 however, the Central government passed the Street Vendor (Protection of Livelihood and Regulation of Street Vending) Act that enshrined within it a framework on regulation of vendors aiming at their upliftment through formation of Town Vending Committees (TVC) and an autonomous Grievance Redressal Mechanism[1].

These were made to prevent arbitrary removal of hawkers from streets and thus safeguarding their right to livelihood as enshrined under Article 21 of the Indian Constitution. However, this Act has several major loopholes such as misuse of term 'public nuisance' that have led to its convenient breach and hence failure of its overall objective. How can these legal ruptures be patched? Can the defence of necessity in tort be applied to overcome these discrepancies?

This article aims at discussing and finding possible solutions to these legal discrepancies and establishing a link between the defence of necessity in tort and its indispensable use in the fundamental Right to Life and Livelihood.

Reading Defence of Necessity with Fundamental Right to Life
Broadly speaking, the term street vendor can be defined as 'any person engaged in vending of articles, goods, food etc or offering services to the general public in a street lane, sidewalk, footpath, pavement, public park, or any other public or private area. It includes hawkers, peddlers, and squatters. [2] The Ministry of Housing put the estimate of total number of street vendors in India at 10 million, whereas the Street Vendors Act calculates around 2.5 percent of a city's population as that of street hawkers or 'feriwalas'.

The reason as to why the population stands to be so high is because of the several perks street vending offers, such as low degree of investment, capital and skill required, flexible working hours, etc. However, these hawkers are looked down upon as pests that have led to congestion and disorganisation in cities. Due to the lack of a legal status, they are forced to work in conditions of absolute insecurity, facing regular eviction and harassment.

Previous State and Central statutes like the Bombay Provincial Municipal Corporation Act (1949), Motor Vehicles Act (1988), etc. are widely argued as oppressive remnants of the British colonial regime that had sought to impede indigenous trades and businesses from growing. These outdated laws were however perpetuated for several decades until the Supreme Court in 1989 held that street vendors have the fundamental right to carry out their trade and business as enshrined under Article 19(1)(g) of the constitution.[3] This however led to no significant reforms.

Then in 2014, the Central Government came out with the Street Vendors Act that encompasses several points for safeguarding and regulating street vendors including the creation of a Town Vending Committee (TVC) that mandates registration of local vendors with the committee and a 5 yearly town planning framework that would contain free-vending zones as well to ensure protection of vendors from anti-encroachment drives.

Despite including several potentially potent guidelines, the Street Vendors Act has failed as a policy due to several reasons. Firstly, according to the Centre for Civil Society (CCS) data, only 33% of a total 7263 towns have formed TVCs, and several states have not even adopted the act the way it was envisioned and laid out in the first place. Apart from all these practical hindrances, there also exist several legal lacunas in the Act. The most gaping one being that the Act upholds 'public nuisance' as a reasonable and tangible ground for eviction of street vendors by the police.

This provides the authorities enough statutory vagueness to use it against the vendors, which in turn violates their right to livelihood.
So, can one establish a link between the fundamental Right to Livelihood with the defence of necessity available to us in tort law to negate the clause dealing with 'public nuisance' in the Vendors Act?
Directly quoting the Olga Tellis v. Bombay Municipal Corporation (1985) judgement, 'if the right to livelihood is not treated as a part of the constitutional right to life, the easiest way to deprive him of his means of livelihood to the point of abrogation'[4]. Reading this with Section 81 of the Indian Penal Code that deals with defence of necessity, 'Nothing is an offence merely by reason of its being done with the knowledge that it is likely to cause harm, if it be done without any criminal intention to cause harm, and in good faith for the purpose of preventing or avoiding other harm to person or property'.

To avail the defence of necessity, a prima facie violation of the law is a pre-requisite. Likewise, in our case we see that there has been a prima facie transgression of the law where, say public nuisance or trespass to public property has been caused. However, the vendors were forced to breach the statutory clause only in order to safeguard their Fundamental Right to Livelihood. While private necessity is often seen as a 'privilege' and thus, not absolute in nature, linking it to a Fundamental Right guaranteed under the Indian Constitution cements it as an indispensable constitutional safeguard for vendors to protect their livelihood.

The defence of necessity is applied in situations that demand urgency and where violation of law is absolutely necessary for survival. Hence, in situations of overarching urgency such as safeguarding one's Right to Life and Livelihood it proves to be extremely crucial. Defence of necessity hence saves these otherwise defenceless victims from regular seizure of goods, fines and harassment as it proves, by definition, their right to life and livelihood as a constitutionally backed necessity.

Conclusion: Upholding Constitutional Morality through Tort Law
The defence of necessity is based on the maxim 'salus populi suprema lex' which translates to 'the welfare of the people is the supreme law'. Despite coming out with an Act which aimed at upliftment of street vendors, the government has failed in securing their fundamental right to livelihood. States have failed in granting them registration certificates and legal status, leading to constant harassment, damage to goods and loss of livelihood.

Necessity takes into cognisance circumstantial morality, and thus saves the prima facie offender from his circumstantial offence. As the country becomes increasingly urbanised, the problem of space will nothing but rise in the coming years and in turn raise newer spatial and legislative conflicts.

Hence, it is imperative for the constitution to expand the fundamental Right to Life and Livelihood yet again to safeguard a major segment of the urban poor from arbitrary clampdowns on their sole means of earning. It is pivotal for it to take into its fold the defence of necessity in order to ensure justice for one of the most marginalised socio-economic groups in India street vendors.

  6. Sharit K. Bhowmik National Policy for Street Vendors. Economic and Political Weekly, vol. 38, no. 16, 2003, pp. 1543-1546. JSTOR, Accessed 20 Oct. 2020.
  7. Bhowmik, Sharit Street Vendors in the Urban Economy. India International Centre Quarterly, vol. 42, no. 2, 2015, pp. 98-108. JSTOR, Accessed 20 Oct. 2020.
  1. Sharit K. Bhowmik. National Policy for Street Vendors. Economic and Political Weekly, vol. 38, no. 16, 2003, pp. 1543-1546.
  2. Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act 2014.
  3. Sodan Singh and Ors v. New Delhi Municipal Committee and Ors (1989) 4 SCC 155.
  4. Olga Tellis v. Bombay Municipal Corporation (1986 AIR 180, 1985 SCR Supl. (2) 51).

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