«Contesting the streets Volume 18, number 1 • 2016 U.S. Department of Housing and Urban Development | Office of Policy Development and Research ...»
The ordinance reflects what was politically possible for the city’s first leftist mayor since the 1980s, given the country’s neoliberal political orientation. It establishes the “temporary and exceptional” nature of authorizations to vend in public space (chapter II, par. 4.3) and contains a vision of eventually “graduating” all street vendors to microenterprise operators working in private commercial spaces. The ordinance contains very little in the way of limitations on the power of local authorities, save for article 47, which contains mentions of the right to due process, to be treated with respect, to be oriented in formalization processes, and to the rights established in the country’s constitution. Nonetheless, it complements regulation with promotion in the sense that it aims to support vendors in an effort to save enough capital to eventually formalize—so it is not strictly focused on restrictions and punitive measures.
Linking Street Vending to Poverty Alleviation Ahmedabad In addition to establishing limits on the actions of local authorities regarding its restrictions on street vending, the Supreme Court of India also made a case for public space as a livelihood resource in contexts of poverty. In another 1985 ruling on the constitutional validity of the provisions of the Bombay Municipal Corporations Act of 1888 relating to obstructions on public streets relative to the rights outlined in article 19 of the constitution,17 it ruled on the content of the right to life and, specifically, on the question of whether the right to life contained the right to livelihood. It is significant that the court ruled that it does.
The sweep of the right to life conferred by Article 21 is wide and far reaching. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence, except according to procedure established by Olga Tellis & Others v. Bombay Municipal Corporation & Others, October 7, 1985.
law. That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content and meaningfulness but it would make life impossible to live. Deprive a person of his right to livelihood and you shall have deprived him of his life.18 The court went on to establish the right of street vendors to work in public space more forcefully than it had before in the case of Sodan Singh v. New Delhi Municipal Corporation in 1989. It stated explicitly that the right to carry on trade or business established in article 19(1)(g) of the constitution, “if properly regulated, cannot be denied on the ground that the streets are meant exclusively for passing or re-passing and for no other use.”19 Proper regulation is a necessary condition, it argued, but “there is no justification to deny the citizens of their right to earn a livelihood by using the public streets for the purpose of trade and business.”20 Moreover, the court acknowledged that roads are not laid for the purpose of the carrying on of private business, but rather for the use of the general public for transit. It argued, however— This is one side of the picture. On the other hand, if properly regulated according to the exigency of the circumstances, the small traders on the said walks can considerably add to the comfort and convenience of the general public, by making available ordinary articles of every day use for a comparatively lesser price. An ordinary person, not very affluent, while hurrying towards his home after [a] day’s work can pick up these articles without going out of his way to find a regular market. If the circumstances are appropriate and a small trader can do some business for personal gain on the pavement to the advantage of the general public and without any discomfort or annoyance to the others, we do not see any objection to his carrying on the business.21 These and other provisions of the court’s rulings have firmly established the right to use public space for street vending in India and have done so with reference to the role street vending plays in poverty alleviation, not only for the vendors themselves, but for residents who depend on vendors to access goods in small quantities and at low prices.
Durban The Durban High Court’s ruling on the Makwickana case also reflects a pro-poor orientation toward the use of public space as a livelihood resource. In doing so, it begins to establish the groundwork for arguments in favor of collective rights to public space, pushing back against the commodification of public land. The court’s opinions on two aspects of the case—the poor’s access to courts and the need for procedural fairness with regard to property rights—make the point clearly.
Olga Tellis & Others v. Bombay Municipal Corporation & Others, Paragraph 2.1.
Sodan Singh v. New Delhi Municipal Corporation, Paragraph 3.
Sodan Singh v. New Delhi Municipal Corporation, Paragraph 11(4).
Paragraph 16 of Special Leave Petition (C) No. 15257 of 1987, cited in Sodan Singh v. New Delhi Municipal Corporation.
Regarding access to courts, although Makwickana had legal representation, which the court noted is unusual for street vendors, he still did not have an opportunity to recover his goods before they were disposed of, nor was he compensated for his loss afterwards. As the court stated, [The] right of access to courts is theoretical and illusionary for street traders generally.… The meager income they generate goes to sustaining their large families. Employing legal assistance is not realistic. Reform of the dispute system design in the informal sector should take this into account.22 In addition, the court ruled on the impoundment provisions as they relate to section 25(1) of the constitution, which says that no law may permit arbitrary deprivation of property. The Constitutional Court had previously ruled that a law is arbitrary if it does not provide sufficient reason for the deprivation or is procedurally unfair; in this case, the Durban High Court ruled that the dispute mechanism in section 35 “is incapable of giving effect to the right to procedural fairness before a street trader is deprived of her property permanently,”23 and also not a proportionate means to the intended end. It forcefully argued that— Deprivation is so invasive of their property rights that it impacts on the welfare of the street traders and their large families. For most the impounded goods are their only assets and means to a meal. Impoundment is therefore serious irrespective of the commercial value of goods. Deprivation also impacts on their identity and dignity as people with property, however little that is.24 Again, this marks a significant turning point in that the court is explicitly recognizing the conditions of poverty in which these workers are operating and explicitly articulating the effective denial of rights that takes place when the powers of local authority are not constrained. The effect of the bylaw, it argued, was an “irrational and arbitrary deprivation of property,”25 an unacceptable limit on the constitutional right to trade, and a violation of the constitutional protection against discrimination.
The effect of section 35 is to deny street traders access to courts in terms of section 34 of the Constitution, to deprive them of their property permanently without compensation or accounting in contravention of section 25 of the Constitution, and to prevent and impede them in exercising their right to trade in terms of section 22 of the Constitution. Cumulatively and individually the limitation of these rights compounds the prejudice upon a race and socio-economic group already adversely impacted by poverty.26 The court also found that the bylaw limited the constitutional rights to life (section 11), security of person (section 12), the freedom to trade, the right to property, and the right to equality. It recognized that “the nature of the sector is such that unless officials are oriented to be empathetic towards street traders, the risk of powerful officials mistreating powerless poor people is real.”27 Makwickana v. eThekwini Municipality & Others, Paragraph 87.
Makwickana v. eThekwini Municipality & Others, Paragraph 96.
Makwickana v. eThekwini Municipality & Others, Paragraph 97.
Makwickana v. eThekwini Municipality & Others, Paragraph 99.
Makwickana v. eThekwini Municipality & Others, Paragraph 122.
Makwickana v. eThekwini Municipality & Others, Paragraph 135.
Lima Despite Lima’s explicit neoliberal policy orientation, even that city’s new 2014 ordinance also contains some pro-poor provisions. The crux of the ordinance is around access to temporary authorizations to use public space for street vending. The ordinance establishes preferential access to “vulnerable groups in extreme poverty,” including the elderly, persons with disabilities, and female heads of household (article 21). It also allows vendors with disabilities and elderly vendors to have a helper assist with the business, and it contains provisions for temporary assistants in cases of illness (article 24). Further, authorizations are issued for a 2-year period, an improvement from the previous 1-year period that vendors argued was necessary to allow sufficient time for accumulating the capital necessary to move off the streets.
Providing Channels for Street Vendors’ Representation in Decisionmaking Ahmedabad A central component of the 2014 Street Vendors Act in India is the definition of Town Vending Committees (TVCs) to carry out surveys of vendors, ensure that all existing vendors are accommodated in vending zones, and issue certificates of vending. The act orders that the members of the TVCs include at least 40 percent representatives of street vendors, elected by street vendors themselves, at least one-third of which are women. It also requires that due representation is given to scheduled castes and tribes and also to other minorities and persons with disabilities.28 The TVCs are granted considerable authority, leaving the details of who gets a license to vend in what space to a local struggle about who controls the TVC. With 50 percent representation coming from nongovernmental organization (NGO) representatives (40 percent vendors, 10 percent community-based organizations or NGOs), in principle, less scope exists for governance practices that ignore the protections of vendors outlined in the legislation. Also note that SEWA and NASVI both influenced the development of the law, as they had the policy, over the course of many years—so they had the opportunity to build in protections, including the representation of street vendors in decisionmaking.29 Durban As noted previously, Durban does not have the long history of organizing that characterizes Ahmedabad and Lima, and the recent court decision on confiscations does not address representation in decisionmaking per se. The ruling, however, does argue that, as currently written, the relevant street trading bylaw does not offer meaningful dispute resolution to vendors, given the costs involved in litigation. It therefore recommends that a “more accessible and expeditious dispute design system” take into account the capacity constraints on affected vendors and that the Chapter VII of the law details the composition and procedures of the TVCs.
The nature and extent of this influence were corroborated in personal interviews with SEWA representatives, conducted by Lily Freeman on behalf of WIEGO, on November 3, 2014.
city must manage its officials more effectively, for “without a firm hand on officials who misbehave, conflict with street traders will persist as respect for law enforcers wanes.”30 The court’s attention to meaningful engagement between street vendors and local authorities represents a first step along the path followed in other cities.
Lima Although it is far less focused on rights and protections for vendors than the other two cities, Ordinance 1787 in Lima was passed with unprecedented consultation between municipal officials and street vendors’ organizations. The latter established a “Metropolitan Coordinator of Popular Commerce” (locally referred to as the Coordinadora) in May 2012 as the space in which vendors’ organizations could achieve a unified voice on the content of the ordinance and liaise with the city administration on its passage. The administration, in turn, formulated its own draft ordinance and organized dialogue sessions with vendors in different parts of Lima, which helped the administration identify concerns with its proposal. It then established a working group with representation of both vendors and city officials to make revisions to the text and eventually present it to the city council.
Moreover, the ordinance itself contains a representative structure, somewhat like India’s TVCs.