By Justice Markandey Katju
The newly elected BJP MLA from Hawa Mahal constituency in Jaipur, Rajasthan, Swami Balmukund Maharaj, trying to show his loyalty to the Hindutva ideology of his party, and perhaps to please the higher-ups in his party, went onto a street and aggressively told non-vegetarian-vendors-almost all Muslims to close down their business, and scolded policemen who were not taking action in this connection.
The state election results were declared on 3rd December,
and he did this next morning i.e. on the 4th, even before taking oath.
He also called up an official in front of TV cameras and
said, “Can non-veg be sold openly on the road? Answer yes or no. So, you
support this. All roadside non-veg stalls should be shut down immediately. I
will take the report from you in the evening. I don’t care who the officer is.”
The conversation ended with his supporters chanting ‘Jai Shree Ram’.
There are two illegalities which the Swami committed.
Firstly, he demanded that only those vendors of meat who
have a licence can operate.
There is a Street Vendors (Protection of Livelihood and
Regulation of Street Vending) Act made by Parliament in 2014 (which makes no
distinction between vendors of veg or non-veg food). The preamble to the Act
states that it has been made to protect the livelihood of street vendors, not
to destroy it.
Section 22 of the Act states :
''(1) The appropriate Government may, by rules made in this
behalf, provide for the term and the manner of constituting a Town Vending
Committee in each local authority, or a Town Vending Committee for each zone or
ward, in each local authority.
(2) Each Town Vending Committee shall consist of (a)
Municipal Commissioner or Chief Executive Officer, as the case may be, who
shall be the Chairperson; and (b) such number of other members as may be
prescribed, to be nominated by the appropriate Government, representing the
local authority, medical officer of the local authority, the planning
authority, traffic police, police, association of street vendors, market
associations, traders associations, non-governmental organisations, community-based organisations, resident welfare associations, banks and such other
interests as it deems proper; (c) the number of members nominated to represent
the non-governmental organisations and the community-based organisations shall
not be less than ten per cent.; (d) the number of members representing the
street vendors shall not be less than forty per cent. who shall be elected by
the street vendors themselves in such manner as may be prescribed ".
Section 38 of the Act states :
''For the purposes of this Act, the appropriate Government
shall frame a scheme, within six months from the date of commencement of this
Act, after due consultations with the local authority and the Town Vending
Committee, by notification, which may specify all or any of the matters
provided in the Second Schedule.
(2) A summary of the scheme notified by the appropriate
Government under subsection (1) shall be published by the local authority in at
least two local newspapers in such manner as may be prescribed ''.
Section 2(n) of the Act states :
“vending zone” means an area or a place or a location
designated as such by the local authority, on the recommendations of the Town
Vending Committee, for the specific use by street vendors for street vending
and includes footpath, sidewalk, pavement, embankment, portions of a street,
waiting area for public or any such place considered suitable for vending
activities and providing services to the general public.''
Section 3 states :
''3. (1) The Town Vending Committee shall, within such
period and in such manner as may be specified in the scheme, conduct a survey
of all existing street vendors, within the area under its jurisdiction, and
subsequent survey shall be carried out at least once in every five years.
(2) The Town Vending
Committee shall ensure that all existing street vendors, identified in the
survey, are accommodated in the vending zones subject to a norm conforming to
two and half per cent. of the population of the ward or zone or town or city,
as the case may be, in accordance with the plan for street vending and the
holding capacity of the vending zones.
(3) No street vendor shall be evicted or, as the case may
be, relocated till the survey specified under sub-section (1) has been
completed and the certificate of vending is issued to all street vendors.
Section 4 states :
''Every street vendor, identified under the survey carried
out under sub-section (1) of section 3, who has completed the age of fourteen
years or such age as may be prescribed by the appropriate Government, shall be
issued a certificate of vending by the Town Vending Committee, subject to such
terms and conditions and within the period specified in the scheme including
the restrictions specified in the plan for street vending''.
A perusal of these provisions show that a requirement to obtain a certificate ( or
licence ) by a street vendor arises only after
(1) A Town Vending Committee is constituted under 22
(2) A scheme is frame under section 38
(3) A vending zone is created under section 2(n) by the
local authority on the recommendation of the Town Vending Committee,
(4) A survey is held by the Town Vending Committee as
required by section 3(1), and vendors identified, as required by section 3(2).
So far as I could verify, none of these conditions were
satisfied. No Town Vending Committee has yet been constituted for the area
concerned, no scheme framed, no survey held, and no vending zone created.
A street vendor, being an Indian citizen, has a fundamental
right to do his business vide Article 19(1)(g) of the Indian Constitution. No
doubt his business can be regulated by requiring a certificate under section 4,
but this eventuality arises only after the 4 conditions abovementioned are
fulfilled. Since they have not, there was no requirement to obtain a
certificate.
Apart from the above, the second illegality committed by the
Swami was that he took the law into his own hands. If he heard that some
illegal activity was going on, he could have reported the matter to the
concerned authority, and then it was for that authority to take appropriate
action in the matter. If the authority did not do its duty, the Swamy could
have gone to the High Court by filing a writ petition for a mandamus to the
authority directing it to do its duty of enforcing the law. But instead the Swamy
( who apologised later ) himself became the prosecutor, judge, and executioner.
(Justice Katju is a retired judge of the Supreme Court of
India. These are his personal views.)
