Roads free of impediments a fundamental right: SC

A Bench of Justices G S Singhvi and A K Ganguly, however, said it equally recognised the fundamental right of street vendors/hawkers, to earn their livelihood but the same should be subjected to reasonable restrictions.

The apex court also noted that the burgeoning population has resulted in rapid urbanisation but there seems to be no restriction placed on people purchasing "any number of cars, three wheelers and scooters."

"This court is giving this direction in exercise of its jurisdiction to protect the fundamental right of the citizens. The hawkers and squatters' or vendors' right to carry on hawking has been recognised as a fundamental right under Article 19(1) (g) of the Constitution.

"At the same time, the right of the commuters to move freely and use the roads without any impediment is also a fundamental right under Article 9(1)(d). These two apparently conflicting rights must be harmonised and regulated by subjecting them to reasonable restrictions only under a law," Justice Ganguly, writing the judgement, said.

The apex court said a suitable law on the issue was required as ad hoc policy measures lacking statutory backing cannot serve the purpose.

"The fundamental right of the hawkers, just because they are poor and unorganised, cannot be left in a state of limbo nor can it be left to be decided by the varying standards of a scheme which changes from time to time under orders of this court," the Bench said.

The apex court passed the judgement while dealing with a batch of applications moved by vendors/hawkers challenging the denial of permission to carry out their trade by MCD and NDMC in the national capital.

The Bench referred to the Bill "Model Street Vendors (Protection of livelihood and Regulation of Street Vending)Bill, 2009 introduced by the Centre in Parliament but which is yet to become a law.

It said there is no law as such in the national capital on the issue and yet policy decisions on vending/hawking activities are being regulated and carried out at the orders of the court, which it said cannot be an alternative to a statutory law.

The Bench said that in the absence of proper statutory framework, courts cannot possibly control the ever-increasing population and migration of people to metros in search of their employment.

"Whatever, power this court may have had, it possibly cannot, in the absence of a proper statutory framework, control the ever-increasing population of this country. Similarly, this court cannot control the influx of people to different metro cities and towns in search of livelihood in the background of the huge unemployment problem of this country.

"While there unemployment on one hand, on the other hand there is a section of our people, that having regard to its ever increasing wealth and financial strength, is buying any number of cars, scooters and three wheelers. No restriction has apparently been imposed by any law on such purchase of cars, three wheelers, scooters and cycles. There is very little scope for expanding the narrowing road spaces in the metropolitan cities and towns in India," the Bench said while stressing the need for a law to regulate hawking.

The apex court said since the government had already drafted the Bills it would be appropriate if the same was enacted into a law.

"However, before 30 June, 2011, the appropriate government is to enact a law on the basis of the Bill mentioned above or on the basis of amendment thereof so that hawkers may precisely know the contours of their rights," the court said in its direction.