#
I have always believed in the principle that two consenting adults have the right to engage
#
in any voluntary transaction as long as it does not infringe on the rights of any other
#
And I believe this to be true whether that interaction takes place in the bedroom or
#
One of the saddest things about the way ideologies are formed in our modern times is that personal
#
freedoms and economic freedoms are treated as two separate things.
#
But I believe that they are at their heart the exact same right and the exact same expression
#
of our autonomy as human beings.
#
Many people, especially on the left, give personal freedoms such as the freedom of speech,
#
the respect they deserve, but not so much economic freedom.
#
And it is often vice versa on the right.
#
And in India, these distinctions of left and right don't really apply.
#
And most political parties don't give either kind of freedom the respect they deserve.
#
It is the worst of both worlds.
#
And a particularly telling illustration of this is the way India treats its street vendors.
#
Coming to the seen and the unseen, the Indian state's core function should be to be a protector
#
But instead, it is most often a predator and a parasite.
#
Nowhere is this more apparent than in the case of street vendors.
#
People sell on the streets because people want to buy from them.
#
Every voluntary transaction leaves both parties better off.
#
And so society benefits from this exchange.
#
And yet our street vendors are routinely harassed and exploited and preyed upon and are often
#
too powerless to fight back.
#
My guest today to speak on the subject is Prasan Narang, a lawyer and legal expert who
#
works at the Center for Civil Society in Delhi, which has fought for the rights of street
#
vendors in India for many, many years.
#
Before we begin our conversation though, let's take a quick commercial break.
#
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It costs rupees 10,000 or $150.
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You can check out the details at IndiaUncut.com slash clear writing.
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This link will be in the show notes.
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July batches begin on Saturday, July 4th.
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So hurry and register before then at IndiaUncut.com slash clear writing.
#
Prashant, welcome to the Seen in the Unseen.
#
So Prashant, before we get to the subject at hand, tell me a little bit about your journey.
#
My journey, I am a first-generation lawyer, but also a first-generation graduate.
#
I come from a family of traders, a family of retailers.
#
My family is also a family of Punjabi refugees, grandparents migrated from some parts of Pakistan
#
Dad was really a partition child because he was born here, but probably conceived there.
#
I come from that kind of a family where daughters are more educated than sons.
#
Most of my cousins barely finished their schooling and for me to take that step, take that decision
#
to go to college and take up a vocational course or even then think about law.
#
So law was something that I'd never thought before and I did a professional course after
#
my 12th and then joined dad's business, departmental store.
#
It was only in 2005, 2006, I was thinking of doing some sort of masters.
#
I was not too sure what and I ended up attending a CCS seminar on public policy.
#
I wasn't too sure of what it will be about, but there someone suggested to me that I should
#
think about law and I'll be a good lawyer.
#
I don't think whether, I was really not sure whether I should, I should not, but I prepared
#
for the entrance exam and I got admission in Delhi University.
#
Age was no bar for Delhi University.
#
That's one of very few places you can join law at any age.
#
It was only in my first semester I realized that I loved law so much.
#
It was a similar feeling, what you saw probably on Aamir Khan's face in Three Idiots movie
#
when I was sitting in the engineering class.
#
So that kind of enjoyment and the feeling of joy I had.
#
I love my constitutional law classes, jurisprudence classes.
#
So that's how it happened.
#
But in terms of other influences, you know, life has been set of contrasts.
#
So I have been into two kinds of schools.
#
One is a missionary school, but also a school run by Sangh, RSS.
#
The other set of contrast is I have been in JNU, but also in Center for Civil Society.
#
The next set of contrast is that I studied law in a state-run university, Delhi University,
#
but also in a very elite private university, Jindal Global Law School.
#
And these are the diverse experiences that influenced and shaped my journey.
#
And it also strikes me that, you know, like you said, you came from a family of traders
#
and you were a trader at one point yourself where you were helping your dad with his business.
#
And the thought that comes to mind is that did that then shape very crucially how you
#
look at the law and the constitution?
#
Because it seems to me that there is a danger in people who are born among the elites, who
#
are then, you know, live an elite life, go abroad and, you know, do law at Columbia or
#
wherever and they come back and they are looking at the constitution in a very theoretical
#
framework, upar upar se, whereas you actually have a better lived idea of how laws intersect
#
with the everyday daily lives of citizens.
#
Would you say that's sort of a factor in shaping you?
#
I couldn't agree more because you see Rohit Dey's book, People's Constitution.
#
For the first time, we, you know, have a book that documents the struggles of, you know,
#
people at the bottom of the pyramid, their struggles and how they use the constitution.
#
And I don't find it surprising that most of the stories are about economic freedom, you
#
know, about their struggles with earning their livelihood.
#
Not a single story there is about freedom of speech and expression or about other fundamental
#
It's all about economic freedom.
#
It's almost like in the minds of many people, there's almost like this frightening disconnect
#
where they will support freedom when it comes to personal freedoms, like the freedom of
#
But they will not understand that the same freedom should apply to all interactions two
#
people have with each other.
#
So if we are two consenting adults, it should have the same moral value if someone stops
#
us either from sleeping with each other or from trading in the marketplace.
#
And there's a certain kind of left liberal view that voluntary action is to be respected
#
as it should be if it is happening in a bedroom and it's a personal interaction.
#
But not if it's in the marketplace where suddenly it becomes something entirely different and
#
their coercion is justified, intervention is justified.
#
And that's almost, in a sense, written into the DNA of our constitution and our laws where
#
some freedoms are respected more than others while all of them arise essentially from the
#
I think for them, I mean, for our left liberals, the sense of morality and legality differs
#
for personal freedom and for economic freedom.
#
So one of the things which obviously you've been involved deeply in and which we're talking
#
about now in this episode is sort of street vendors, which is something the Center for
#
Civil Society, where you work now and have worked for many, many years, has been involved
#
So tell me sort of how you got to this specific subject, per se, and what were your early
#
learnings from it, interactions with it?
#
Actually during my law school, I never took up any internship with any law firm.
#
And I was looking at the issue of auto rickshaw drivers in Delhi.
#
And you know, there were different kinds of policy responses to the problem of auto rickshaw
#
The problem was commuters often complained that they don't go by meter.
#
And policy response was that we need to discipline them.
#
How you discipline them is either you have a digital meter, you have workshop for them,
#
you prescribe a uniform for them, they have to have GPS, and so on and so forth.
#
And at times, you know, you hear and you read in the newspapers that there is a cultural
#
They don't know how to behave with commuters, so on and so forth.
#
So while I was in law college, I with my other friends, we investigated, we did some research
#
and found out that it was more a policy issue because of the disparity between demand and
#
And there was a permit system, the government didn't issue any further permits.
#
So this was one issue that we studied and we, you know, made a documentary called Third
#
A shorter version of this documentary is still available on YouTube, it's called Third Wheel.
#
Right after finishing my LLB, I joined a lawyer, Ms. Indira Uninayar.
#
And I assisted her in another public interest matter, which was about cycle rickshaw pullers.
#
And same issue, very similar, there was a permit issue, you know, fixed number of permits
#
and the government didn't issue further permits.
#
And the number of permit was limited to 99,000, but there were actually 6 lakh cycle rickshaw
#
pullers in Delhi, which meant more than 5 lakh cycle rickshaw pullers were illegal.
#
And that gave an opportunity to the municipal officials, traffic police to basically seek
#
So on 10th of February, 2010, Delhi High Court decided in favor of cycle rickshaw pullers
#
and basically, you know, the so-called mafia became entrepreneurs.
#
And I found that really very interesting.
#
That was around the same time CCS was probably doing Jeevika campaign related to street vendors
#
I took up masters after that, and it was only in 2013 that I joined CCS.
#
CCS was already doing street vendors project by then.
#
They had an office in Jaipur, Rajasthan, and the street vendor associations knew them quite
#
So there was a PIL pending before the High Court of Rajasthan with respect to this issue.
#
And Rajasthan passed a state law for protection of street vendors, but it was totally a toothless
#
A lot of other organizations as well as street vendor organizations were advocating for
#
And if you remember, UP had a National Advisory Council, they began to have consultations
#
I think right from 2009, 2010, and finally the Central Act came in 2014.
#
So the Supreme Court passed its orders and asked the parliament, I mean the Supreme Court
#
asking the parliament to come up with a law, a federal law to tackle a municipal level
#
So these were my experiences with livelihoods of urban poor and similar issues, be it auto
#
rickshaw drivers, be it cycle rickshaw pullers, or be it street vendors.
#
The issue is state harassment.
#
The harassment caused by police, by municipal officials, and permit and licensing is at
#
So you know, before we get down into the nitty gritties of the problems that street vendors
#
face and all of that, one sort of final broad question, which is also about something that
#
you mentioned, you know, a brief while ago about the economic way of thinking.
#
And is it the case that like when you describe the cycle rickshaw pullers in Bombay and all
#
the policy responses, which were all horrible and all the other popular sort of responses
#
people had to that, which are equally horrible.
#
And the key thing that they're missing there, obviously, is that people respond to incentives.
#
And if you have a system where the incentives are absolutely horrible, then everyone will
#
behave rationally and you'll get really bad outcomes.
#
For example, if you have your X number of rickshaw pullers, but you're giving licenses
#
which are point to X, then obviously you will have that rent seeking, you will have bribery
#
and the cost of society go up massively.
#
So has that been like, it seems to me that that's a fundamental challenge at the core
#
of either making government work well or even how we look at other issues in isolation,
#
be it the constitution or legality itself, that people don't understand this fundamental.
#
And I won't even call it the economic way of thinking because that seems to imply that
#
there is something niche about it, which doesn't apply to everything.
#
Because economics is a study of human behavior, we all obviously respond to incentives and
#
that's a fundamental fact you have to take into account.
#
And if you don't, none of your other thinking or intervention will work.
#
So has that been a big challenge with you both in terms of changing mindsets and then
#
in terms of actually getting things done?
#
Absolutely, you're right.
#
Because if you look at the judgments related to cycle rickshaw pullers or street vendors,
#
you know, especially in 80s, I would say 50s and 60s were not that bad.
#
The judges did what they were supposed to, but it was in 80s that you see the problems
#
So for example, you know, when we talk about cycle rickshaw pullers, the judgment that
#
Delhi High Court passed and it stuck down some of the provisions that applied to cycle
#
rickshaw pullers in Delhi, those provisions were challenged four times in 80s before the
#
Supreme Court and the Supreme Court upheld those provisions.
#
And if you see those judgments and if you see the rationale that the court gives, heavily
#
influenced by socialist reasoning, and they mentioned this, and they call the entrepreneurs
#
who own the cycle rickshaws and so basically, let me first give you the background of what
#
There was another law which said that one person can't own more than one cycle rickshaw.
#
So owner must be the puller, which meant that you can only own one cycle rickshaw, you will
#
not give it on rent, but which also implied that no one else can hire a cycle rickshaw
#
Now, there were a lot of migrants who came from rural areas during the non-agricultural
#
season and would come to cities and towns and would hire cycle rickshaws and would ply
#
them and then probably after three, four months will go back to villages.
#
But when you prohibit, when you make it illegal to give it on rent or to hire cycle rickshaws,
#
you are basically by sort of intervention, you are attacking the economy, you are making
#
that consensual transaction illegal.
#
Their reasoning is that the person who owns more than one cycle rickshaw is a greedy capitalist
#
and they say that in their judgments.
#
Now that judgment, those four judgments, look at the contrast between those four judgments
#
and the Delhi High Court judgment where this time in 2010, the court calls the police,
#
the harasser or the exploiter.
#
So in 80s, the exploitation is done by so-called greedy capitalist and in 2010, same issue,
#
same problem, same law.
#
And the court finds that it is the police and the municipal officials who are exploiting
#
So let me sort of unpack this.
#
One is that to summarize what is wrong with that earlier socialist judgments of the 80s,
#
for example, just let's unpack that one clause that no one can own more than one cycle rickshaw.
#
Number one, it prohibits scale.
#
It means that if you get one cycle rickshaw and you're successful and you want to scale
#
up, you cannot do that.
#
You're only allowed to own one.
#
Number two, it is an entry barrier.
#
If you want to be a cycle rickshaw puller, you have to then get the means to actually
#
It is illegal for you to drive one for somebody else.
#
And presumably if you rent one against the law, then both you and the person you're renting
#
it from will have to pay bribes to the police concerned or whatever and do other jugat to
#
The third aspect is that with restrictions like this, there is often the moralistic line
#
taken that, you know, it goes against a man's dignity to pull a cycle rickshaw.
#
And therefore, you know, for their own good, we should keep them away from it where again,
#
what people fail to realize is that yes, pulling a cycle rickshaw is just an horrible job.
#
You wouldn't wish it on anyone, but everybody who is choosing to do so of his own free will
#
is doing so because it is the best option to him.
#
So you are actually condemning him to a life worse than that by taking away the best option
#
of employment open to him.
#
And it's kind of wrong for all these three reasons.
#
Another question that popped up when you were talking about the disparity between the 1980s
#
and the 2010 judgment, which you pointed out, which you know, correctly then shifts the
#
focus on police and municipal officials for their harassment.
#
Is that one is actually a two part question.
#
And has it actually been a trend within the judiciary or is it an isolated instance of
#
an opinion changing like this from something less liberal to more liberal, as we would
#
And two, does the culture of a particular time determine the direction of court judgments
#
in the sense that do judges then feel a necessity to do a certain kind of posturing to get the
#
plaudits of their peers and you know, their others in society?
#
Well, that would require empirical research.
#
There is some empirical research, you know, what you're saying, Deirdre Miklosky has argued
#
something similar and Nimish Adia, who did his PhD under Miklosky, in his PhD thesis,
#
he talks about something similar, you know, in the context of economic reforms India had
#
He says it was, you see the society changing and he points out at the, you know, for example,
#
So you look at how capitalists were portrayed in the movies in fifties, sixties, then suddenly
#
in seventies, you see an angry young man and the perception, the portrayal of the police
#
And come nineties and you see, you know, very benign capitalists.
#
So the movie Ham Aapke Hain Kaun was a story of a benign capitalist family.
#
So I do believe that that plays a role and judges play to the gallery.
#
Let's kind of talk now about street vendors itself.
#
Can you sum up for me without kind of coming to present times and talking about the 2014
#
law and all that, and we'll come to that later, but sum up to me the problems that through
#
the decades street vendors have typically faced.
#
So let me begin the story from the eighties.
#
You know, two cities, mainly Delhi and Mumbai had their largest share of cases on street
#
vending with before the Supreme court.
#
And there was a case from Mumbai in 1983, Bombay Hawkers Union.
#
You know, the Hawkers Union actually challenged provisions of Bombay Municipal Corporation
#
If you look at this act, the provisions of this act, these were very skeleton provisions.
#
The provision did not have any details of how the commissioner will issue the licenses.
#
It only talks about terms and condition and the commissioner can issue the licenses subject
#
to those terms and condition, but it doesn't guide the commissioner as to what sort of
#
parameters should he employ for giving licenses?
#
What should be those terms and condition?
#
And this is cardinal principle of administrative law that when the parliament or, you know,
#
the legislature makes a law and delegates certain powers to the executive, there has
#
to be some guidance given to the executive because executive can't make law.
#
The executive can make rules, but the rules are there just to fill the gaps, you know,
#
just to fill the details.
#
But the rules can't be abused or misused by the executive to do what as per its whims
#
and fancies, that's not permissible.
#
And the court has the power of judicial review that if there is over delegation or if there
#
is arbitrariness, then it can strike down those rules.
#
So what this union was doing, the street vendors challenged those provisions saying that this
#
is not guided discretion.
#
It is unguided power in the hands of the executive because they apply for licenses and they don't
#
They also don't get any response from the municipality.
#
And there is no deadline to give any response.
#
Now this is purely an administrative law question, right?
#
And something similar happened with Delhi vendors.
#
So you know, there was a vendor in near Janpath called Sudhan Singh and he faced the same
#
He was given a license, but when he applied for renewal of license, there was no reply.
#
The license wasn't renewed.
#
When he went to the Supreme Court, there NDMC filed an affidavit saying, well, we rejected
#
his license on so and so reason that he is supposed to be a moving vendor, a mobile vendor,
#
but he stands at the bus stop, sort of like a stationary vendor.
#
That's not permissible.
#
And we allowed him to sell only peanuts, but he started selling garments.
#
Is that a material fact?
#
Why would you give license just to sell one particular such specific commodity?
#
And what is your interest to control what commodity will he sell?
#
Of course, he's not selling bombs or ammunition.
#
It's not very clear from the judgment whether the NDMC had informed him in some timeline,
#
in some deadline, you know, why they are rejecting his license.
#
And so then he can, if it disagrees with those reasons, he could have challenged that reasoning
#
So that's not very clear whether he challenged that there was no reply from the NDMC or whether
#
he challenged the reasons.
#
I believe it was that he did not get any response and the NDMC filed his response only before
#
In fact, you've also given the example of Vishwanath Roy, who applied to, who was a
#
tea seller who wanted to sell clothes instead.
#
And that went all the way to the Thareja committee.
#
And then that went all the way from basically from NDMC to the Supreme Court.
#
And that happened in 90s because there is a context to it that, you know, while the
#
Sudhan Singh and Bombay Hawkers Union judgments, you know, were being heard by the Supreme
#
Court, the Supreme Court did not take up this judicial review question, the administrative
#
It abdicated from its role of doing the judicial review and instead it passed directions.
#
So in case of Bombay Hawkers Union, it asked the commissioner to frame some details as
#
to how it should give the licenses.
#
Now, the commissioner did frame some directions, you know, which he called the scheme.
#
And the court also sort of modified the scheme and passed an order with that modified scheme,
#
but also asked the commissioner to take inputs from all stakeholders and further finalize
#
This was very, very ambiguous, not something which the court should have ideally done because
#
the court should have ideally scrutinized the provisions in the Municipal Corporation
#
Act, whether there was unguided discretion, you know, whether there are parameters there
#
The scheme business was not, you know, something the court should have gotten into.
#
And in case the municipal commissioner was framing a scheme, you know, he should have
#
gone ahead and framed the scheme and notified it.
#
And then the vendors could have challenged the scheme if they liked.
#
But the court shouldn't have put the scheme in its order because once the court puts the
#
scheme in its order, it seems the court has laid down the scheme, which still is, you
#
know, the most courts, you see the subsequent judgments.
#
And it seems that the court framed the scheme and you can't touch the scheme now because
#
it's court order and whatever the court says is law.
#
And that's very problematic because now that scheme is off judicial review.
#
So who will review that scheme now?
#
Subsequent judges won't touch it.
#
Oh, this is laid down by the Supreme Court judges, our seniors, and that becomes problematic.
#
In case of Delhi, NDMC, you know, told the court how this vendor has come to the Supreme
#
Court, under which law, you know, where is this right to come to the court?
#
Is he saying that he has a right to sit on the road to vent?
#
There is no such right.
#
So the vendor claimed that he has a fundamental right under Article 19, Banji, right to pursue
#
any profession, business, trade, occupation.
#
And NDMC said, well, you know, how can you have a fundamental right to sit squat on the
#
There is no fundamental right like that.
#
And the court, instead of again reviewing the administrative law question and reviewing
#
the municipal laws, got confused with this proposition.
#
Is there a fundamental right or is there no fundamental right?
#
Now, the problem is that there is conceptual ambiguity with the court.
#
The court did not really understand that in our scheme of constitution, there is presumption
#
Citizens don't have to ask and take permissions before they do something.
#
Liberty is not granted to us.
#
A lot of proof and argument is on someone who wishes to take it away.
#
So we live in a system where the government, where the parliament, not the government,
#
where the parliament or the legislature can restrict our rights because there is a system
#
So first of all, number one, constitution doesn't give us rights.
#
The constitution declares that we have rights.
#
Number two, it gives the power to the legislature to restrict those rights reasonably and in
#
general public interest for the purpose of 191G.
#
So you have two grounds, A, there should be reasonableness and second is general public
#
And then a citizen can challenge those restrictions on the ground that A, either it is not reasonable
#
or it is not in general public interest.
#
This is precisely that the vendors were doing.
#
They were saying, of course, on the administrative law grounds that, you know, this is not a
#
law because it goes beyond the law.
#
The law doesn't ask you to, you know, and you have to have some procedural safeguards.
#
On the issue of procedure, also the challenge, but they could have also challenged it on
#
reasonableness and general public interest.
#
The court, instead of asking that question, got into the question, where is the right?
#
And this is really, really troubling.
#
The court doesn't understand, you know, the way the right is coming from.
#
And these are the Supreme Court judges.
#
And this is really dangerous for the society.
#
I mean, if the Supreme Court judges are not very clear, you know, with the source of the
#
right or the concept of fundamental rights, then God save the country.
#
And the presumption of liberty.
#
And the presumption of liberty.
#
So I'll give you another example.
#
So for example, you know, drone was a recent phenomena.
#
There were no drones earlier.
#
Or for example, e-rickshaws, you know, the battery operated rickshaws.
#
Battery operated rickshaws didn't come under the purview of Motor Vehicles Act, but they
#
were not cycle rickshaws either, right?
#
But the government did not have a law to ban them.
#
So the question is, is it legal to ply battery operated rickshaws or not?
#
I argue, yes, it is legal because you don't have any law to ban them or for that matter,
#
Where is your law to ban cryptocurrency?
#
Cryptocurrency is a commodity and you can trade in cryptocurrency.
#
But the government has gone ahead to ban cryptocurrency by way of a notification, which is not even
#
It's not passed by parliament yet.
#
So what you're saying is if cryptocurrency has to be banned, then parliament has to pass
#
a law that is either on the grounds of reasonableness, reasonable restrictions or public order, both
#
reasonableness and public and public public interest.
#
And then those who are affected can go to the court and argue about that.
#
But it is not for the executive to, you know, without the legislature having passed such
#
a law to frame a rule that is effectively a therefore a law and they can't, so that
#
Two questions come up here.
#
One is that one of the themes through all your work, like I've read your papers and
#
your articles and all of that, and one of the things I find in the facts that you lay
#
out before us is that there seems to be a tremendous flouting of this whole notion of
#
the separation of powers, that the judiciary should do this, the legislature should do
#
this, the executive should do this.
#
An example being in that superb sentence that you said earlier in this episode about the
#
Supreme Court directing the government to pass a federal law about a municipal issue.
#
And this seems completely confused.
#
So does this confusion at the level of conception where, you know, the Supreme Court is legislating
#
from the bench and the legislator is pretty toothless these days, but and the executive
#
is doing what the legislature should do and the center is passing laws for municipalities.
#
You know, is this just a fundamental problem in any change getting done even outside of
#
this limited context that we're talking about today?
#
So you know, also, let's complete our chain of events because after they passed directions
#
in Bombay Hawkers Union, in case of Delhi also, what they did in Delhi, Delhi was even
#
more weirder because they constituted a five-judge bench to decide whether it's a constitutional,
#
it's a fundamental right or not.
#
And it decided that it is a fundamental right and the parliament can restrict it.
#
And they said now the individual or the smaller benches will decide on the individual cases
#
because Sodhan Singh was not an isolated case.
#
They were, it was a bunch of cases.
#
But what seems in the later subsequent judgments, I found the reference to, you know, what happened
#
to the rest of cases is that they forwarded those cases to a local Dalit.
#
Now this is bizarre because Article 32 of our constitution guarantees that the Supreme
#
Court is bound to hear your red petitions.
#
Red petition meaning if you challenge, you know, a government action or a state law that
#
it violates your fundamental rights, the Supreme Court is bound to hear.
#
It's a constitutional guarantee.
#
And the Supreme Court forwarding these red petitions to a local Dalit.
#
I think that's absolutely bizarre and there is no other parallel or there is no other
#
I mean, imagine, you know, people would be on streets at the Supreme Court forwarded,
#
let's say the Kashmir issue or the Ramandir issue or the, you know, something of that
#
But this is what exactly they did in 1990.
#
And after that, they started constituting committees.
#
So first they constitute a Thareja committee.
#
So they took up a civil judge from the lower judiciary in Delhi and asked him to, you know,
#
basically it was a committee of one person and he was on the streets of Delhi, you know,
#
But why are you counting vendors?
#
You know, why are you counting vendors?
#
Now the other problem is the court forgets that street vending is not the only private
#
There are many other private uses of public space.
#
So for example, car parking, you know, we are recording here in this neighborhood.
#
This is a residential zone and you see cars there on the road, on the pavement.
#
Are these people paying to the municipality for parking their cars on the pavement?
#
Is it legal or illegal?
#
You ask this question to a municipal official, he won't also know, right?
#
So the cars are being parked in a public space without payment.
#
Is it legal or illegal?
#
No one comes to take off the cars.
#
In commercial districts, yes, that happens that sometimes the crane comes or the traffic
#
guy comes to challenge you, but that doesn't happen in the residential zone.
#
So other use, for example, the building repairing, you know, the building owner would put a scaffolding
#
and the scaffolding often is in the public area, right?
#
You have building materials lying outside in the public area or let's say family picnic
#
in a public park, right?
#
Five people smoking outside on the road and blocking the pedestrian path.
#
Isn't that a public use?
#
And for that matter, you know, we are in Delhi, baraats, baraat is the biggest example.
#
You don't take any public permission, the police permission or the traffic permission,
#
you know, to have a baraat on the roads and the roads are jammed when there is, you know,
#
we call it in Delhi, sayabhariye, there are a lot of marriages, weddings happening on
#
a particular night because of Ashubh Murat and the roads are jammed because of baraats,
#
but no one raises any questions on these other public uses.
#
It's only the street vendor issue where there are a lot of questions.
#
So my question is to the Supreme Court that while you frame a committee, he's counting
#
vendors on the road, but what about other public uses?
#
And while they were thinking, and of course, the one problem is that they were trying to
#
regulate street vending, but the other problem is, which they shouldn't have done, but the
#
other problem is while doing that, they left other private uses of public spaces, I mean,
#
they left those unregulated, they didn't think about that.
#
And this is also a philosophical question and value pointed out that the Supreme Court
#
went into the wrong direction by considering whether this fundamental right exists at all.
#
It seemed to have actually then at least come to the correct conclusion that yes, a fundamental
#
right exists and as you pointed out that the government does not own the roads, the people
#
own the roads and the government is merely a trustee of the roads.
#
So this was also in one of those, as I said, 50 and 60 judges gave much better judgments
#
and this was in 55 and 57, there were a couple of judgments where the court pointed out that
#
the judgments, the municipal or any government is not the owner of the roads.
#
They are merely trustees of the road.
#
They can make regulations for better coordination, but they can't oust people from walking on
#
the road or from applying their vehicles on the road and so on and so forth.
#
So, you know, the question that automatically comes up takes me to something that the Bombay
#
High Court in 2014 said, which you've quoted in one of your pieces, which both plays to
#
this question and also sort of seems to articulate the common impression that most people have
#
about street hawkers and the court is, quote, street hawkers create dirt and nuisance.
#
If they were to be conceded the right claim by them, they could hold society to ransom
#
And you know, in 2017 you've pointed out how the Delhi High Court said, quote, being pitched
#
between the conflicting rights of the livelihood of street vendors versus the life and security
#
of the public in general, including the street vendors.
#
We are of the opinion that the former must bow to the latter as without life and security,
#
no question of earning a livelihood can arise.
#
So now, you know, just at the level of the fundamental principles involved, we would
#
both agree with the judgment you cited from the fifties that, you know, public space belongs
#
to the public, not to the government.
#
The government is sort of safeguarding those spaces.
#
So equally, you know, people have a right to sell things, people have a right to walk
#
People can stand together and, you know, have a smoke break or whatever, though I don't
#
And, you know, people can park their things there and whatever.
#
The question that arises here is, and I'm kind of thinking aloud, is that if you were
#
to take a thought experiment, where would you draw a line?
#
Because the more people sort of use these public spaces, each use has a tiny disruption
#
that does not justify or is not a reasonable restriction of that right.
#
To what point, where do you draw the line where the disruptions get so much that you
#
say that no more, this is not allowed.
#
For example, if we were to take a crowd of people and completely block a public street
#
outside here in Housecast where we are recording for days on end, the government would have
#
to intervene because we'd be blocking all the highways and it would affect traffic all
#
But when that happens for shorter periods of time, like say the Ganpati emotions in
#
Bombay where I live, the government doesn't do anything because it's just a handful of
#
days and whatever, let it happen.
#
You know, one, where is the line, two, on what basis do you think the line should be
#
drawn and is that necessarily an arbitrary distinction?
#
And three, would you agree that the street hawkers, no matter, you know, in the current
#
dispensation, no matter what they do, simply do not come anywhere close to that line.
#
They are not disrupting life in that manner.
#
I'm saying the line can be anywhere, but it has to be a general line, a general line for
#
It has to be same line for car owners, for, you know, for street vendors, for cars that
#
ply on the road because that's also, you know, the roads are also public spaces for building
#
repairs or building construction works.
#
So it has to be general guidelines for all sorts of private uses of public space.
#
But you can't say that for a particular private use that this is the nuisance creating use
#
And there it, you know, smells of some sort of bias, elite bias against both.
#
There's a clear class bias here because I, you know, I can park my fancy SUV on the road
#
all day and nobody will really dare to mess with me though.
#
I must point out I don't have a fancy SUV.
#
This is purely hypothetical, but I could park my fancy SUV on the road all day and a street
#
vendor occupying less space than that will constantly be harassed.
#
And as you pointed out, we'll have to pay rent to three sources, to the police, the municipal
#
authorities and to the shopkeeper in front of whose shop he might be, even though the
#
shopkeeper doesn't own that space.
#
So, you know, it's basically a cosy an arrangement between the shopkeeper and the street vendor.
#
So the street vendor tries to buy his new objection so that he doesn't complain to
#
the police and allows him to stand there, although the street, the shopkeeper doesn't
#
To the municipal officials so that they don't take action against him and to the police
#
again for no harassment.
#
But still, you know, maybe someone else, let's say RWAs, Resident Welfare Associations who
#
are very active and powerful these days, they can complain against the vendors and despite
#
all his bribery and whatever, he can still be removed.
#
So there is still no certainty and assurance despite the bribe given.
#
And the other thing that also strikes me is you correctly pointed out earlier that there
#
are all these different kinds of private uses of public spaces.
#
Now if I were to give a hierarchy to them, I would actually give more importance and
#
more freedom to the street vendor than to the SUV parker because the street vendor is
#
there because he is performing a social need.
#
He is only there because people want to buy from him.
#
All transactions are positive.
#
Some games are mutually beneficial.
#
So you know, that's the logic of the market.
#
He exists because he fulfilled the social need.
#
Sort of a public utility.
#
So a guy who parks his SUV is not fulfilling anyone's need, but his own.
#
You know, so what were the sort of battles that you guys were fighting, you know, on
#
behalf of the street vendors of Delhi and Jaipur, where I guess your local energies
#
What were typically the, you know, at a micro level, the problems that would be faced, like
#
I guess one problem is just a problem of existing where because you're illegal, you have to
#
pay bribes to all of these people.
#
So at what different levels were you trying to bring about changes to this?
#
So you know, in 2014, the law was passed, associations, vendors were very happy.
#
There was one provision in the law which said that unless there is a survey done, all the
#
No vendor can be evicted until then.
#
And this was a very strong provision because the way it was voted, you know, no vendor
#
There was a very clear direct mandate that you just can't evict any vendors.
#
So just to clarify, what this means is that the government then has to mandatorily carry
#
out a survey of existing street vendors and it cannot evict any of them once that is done.
#
And, but we got some news from Jaipur that evictions were still being carried on by the
#
municipality and we decided to visit Jaipur in January 2015.
#
We met the vendors and suddenly we got the news from a vendor that, you know, the municipality
#
was carrying on eviction somewhere.
#
And we reached that spot and they were bulldozers because you know, in Jaipur they call it thurdies.
#
So they have some sort of platform built, roadside where they sell their wares and things
#
So they were bulldozers.
#
They were heavy deployment of police forces and a lot of municipal officials were there.
#
And we saw those thurdies being bulldozed.
#
Although there was a, you know, state run dairy kiosk that was left.
#
They didn't do anything to that state dairy kiosk.
#
We went to a police station because as per the law this was illegal.
#
And I asked them to lodge an FIR and they laughed at us.
#
They said under what law?
#
I said, this is the law.
#
They didn't know about the law.
#
They said, yeh kaunsa kaanun hai, hume nahi pata.
#
I said, aap kaha par hain?
#
Rajasthan Hindustan mein aata hai ya Pakistan mein aata hai?
#
You know, parliament passing a law and the police doesn't respect, doesn't care about
#
We decided to then approach the Rajasthan High Court.
#
We filed a writ and lo and behold, the Rajasthan High Court decides that the law is not applicable
#
On what basis do they make that?
#
They say it's not notified yet.
#
They say, they acknowledge that there is a law.
#
They say Rajasthan government hasn't notified.
#
But the thing they missed is that the central government had notified it for the whole of
#
India and it was notified.
#
Then we got hold of a Rajesh Sabha MP from Rajasthan and requested him to raise this
#
question in the parliament.
#
And of course, the minister, concerned minister replied that it is indeed applicable to whole
#
of India and the notification was in public domain.
#
So we took both, you know, the notification and his reply to the Supreme Court, we filed
#
Ideally, the case should have been decided on the first hearing because there is nothing
#
Yet this court took one year and after six or eight months, I think it was quite evident
#
to the state of Rajasthan and to the municipal corporation there that they will have to implement
#
There is, you know, no other escape.
#
So they drafted the rules in the scheme.
#
I'm not too sure if they had notified it, but they probably put the draft in the public
#
And after vacations, the court heard the matter and they say, well, the matter is now, you
#
know, sort of, because what you were asking for, they have sort of done that.
#
There is no point deciding in the matter.
#
What they did in their order is to record the statement of the government lawyer and
#
And they say that on these terms, we dispose of the matter.
#
But they did not expressly overrule the High Court judgment, unfortunately, which ideally
#
they should have done, but they didn't do that.
#
Anyways, the state of Rajasthan implemented the law.
#
Then I thought, you know, one state, we spent one year pushing that state to implement the
#
law or just frame like rules and scheme.
#
How do we deal with all the states?
#
And that's how we came up with the idea to design an index, which would be an interstate
#
index that shows which state has to what extent implemented the law.
#
And in 2017, we launched the first version of the index.
#
Then last year we did the second version, which shows that, you know, the implementation
#
is really poor and most states have not implemented at best they might have.
#
So barring three or four states, most states have drafted their rules and schemes.
#
But in terms of constituting town vending committee, which is a participatory forum
#
also comprising of the street vendors, almost one third have only one third towns and cities
#
have constituted town vending committees, but almost two thirds have not done that.
#
And then there are other steps.
#
So for example, there should be a grievance redressal forum and so on and so forth, which
#
most cities or municipalities have not done.
#
So the law is barely implemented.
#
So, you know, before we go into a break, I'll quickly read out the three features of the
#
2014 act that you point out.
#
So they can then form the basis of discussion when we return to figure out how the impact
#
that that's had on the ground or the impact that's not had on the ground as it were.
#
And all your papers will of course be linked from the show notes.
#
So these will be available there.
#
And you said there are three features for the 2014 act.
#
One, the participatory mechanism of TVCs, TVCs being town vending committees, decentralizes
#
decision-making from municipal bodies to a committee of all stakeholders, including vendors,
#
government officials and resident associations.
#
The provision of 40% mandatory vendor representatives in the committee aims to ensure that their
#
interests are accommodated in their party to their own governance to until the survey
#
and issuance of certificate of vending to all existing vendors is complete, no vendor
#
TVCs are required to enumerate vendors every five years through safeguards and processes.
#
The law creates a permitting framework instead of a licensing regime.
#
And three, the act provides for an independent redressal committee to hear vendor grievances.
#
And we'll discuss this more after the brief commercial break.
#
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Welcome back to The Scene and the Unseen.
#
I'm chatting with Prashant Narang about street vendors in general and in particular the impact
#
of the 2014 Act, which sort of was meant to make life better for street vendors.
#
Now, you've actually been monitoring how this Act is being carried out.
#
Before I ask you about the implementation of the Act, let me ask you about the design
#
of the Act, that does the way an Act is designed impact the way it will be implemented?
#
Yeah, that's a good question.
#
And this is where most of our laws fail and this is the reason why most of our laws fail.
#
There is a huge design flaw in this Act.
#
This Act is titled as the Street Vendors Protection of Livelihood and Regulation of Street Vending.
#
The problem is it acknowledges that there is some protection required.
#
Now protection against whom?
#
So if you look at the reports preceding this Act, the reports acknowledge that there is
#
The municipal officials and the police.
#
And why do they harass?
#
They harass because either you don't exist on paper, you don't have a piece of paper
#
which is called license, right?
#
So the problem, the core problem is licensing and harassment.
#
And what is the solution that they propose to this problem of licensing and harassment?
#
They propose that A, you will be counted, B, there has to be some sort of participatory
#
body to decide on certain questions of regulations and C, that there will be some sort of grievance
#
The problem is who is going to constitute the body and who is going to draft rules and
#
So again, the government body, you know, the state government will draft rules and schemes.
#
But the question is if they don't, then what?
#
The local authority or the municipal corporations are supposed to constitute the town vending
#
But if they don't, then what?
#
Those questions are not answered in this law.
#
So the question is, you know, the original problem is that there is harassment by police
#
and by municipal officials.
#
And that comes because of too much discretion given to…
#
Too much discretion and licensing requirements, right?
#
So in the law, you say that thou shall not harass, but if they harass, then what, right?
#
There is absolutely no penalty, no fine, no disincentive, no punishment for municipal
#
officials or on the police.
#
How can you solve this problem?
#
You have only created some rights and duties and, you know, for street vendors, but the
#
corresponding duty on the police and on the municipal officials is missing.
#
So who bears the corresponding duty if there is a right on the street vendor to not be
#
There has to be some corresponding duty and some remedy if that right is breached, but
#
there is no remedy there.
#
So you expect the vendor to go every time to the court, then that's what they were
#
doing in last 20, 30, 40 years.
#
And that's also the some lucky vendors who had access to institutions like yours and
#
lawyers like you, but most vendors have no redressal, they're just finished.
#
And it also strikes me is that the mismatch here is also, it's a question of power and
#
accountability that wherever you give power to the state in whatever domain, you also
#
have to write in a way to make it accountable for that power.
#
And as you've pointed out in this case, you've given them that power over the street vendors
#
and the public spaces, but you haven't built in the accountability.
#
And therefore, what you have is, you know, any rational government service will then play
#
to his self-interest and use it to enrich himself and take rent.
#
So rent seeking is a big incentive because if, you know, all the vendors are formalized,
#
the rent seeking would stop and look at the quantum of rent seeking.
#
So you know, we speak to and there is no empirically verified figure, but a ballpark figure, you
#
know, basis on when we speak to a couple of vendors, few vendors here and there, they
#
tell us that they pay to the municipal corporation and to the police.
#
It comes to around two to three thousand rupees a month.
#
And assuming that there are two hundred thousand vendors in Delhi, you know, into two thousand
#
rupees a month, I mean, calculate how much would that be?
#
Then this is per month and multiply it by twelve.
#
That's the annual amount that they pay.
#
And you've also sort of pointed out, like in one of your pieces, you write that how
#
is the Delhi government doing rather than just from sight from your piece?
#
So tell me, so the Delhi government and you're obviously based in Delhi has claimed that
#
it is implementing the 2014 law and it is actually doing a lot of things, but on the
#
ground that's not really working out so well.
#
Tell me a little bit about that.
#
Yes, so Delhi and Mumbai, as I said earlier, that these are the two cities where this problem
#
is acute, you know, because of the tussle for the public spaces.
#
And Delhi government notified a scheme which because of some reasons, like Mumbai also,
#
the schemes were stayed by the courts and they drafted, redrafted the scheme.
#
And now they were constituting the town vending committees and they were to conduct surveys.
#
But the survey has still not been conducted in Delhi, similarly in Mumbai.
#
So Mumbai conducted a survey in 2014, you know, under the old policy, there was a national
#
policy for hawkers in 2009 and they conducted a survey.
#
And then again, vendors approached the court.
#
The interesting part is, you know, the way Mumbai conducted the survey, they distributed
#
the application forms and asked the vendor to submit the forms.
#
Now, this is not a survey, but they have been calling this as the survey.
#
And it fails because not all the vendors will get the form, not all of them will be able
#
Absolutely, because, you know, as per some estimates, there were some estimates say there
#
are 2.5 lakh vendors, some estimates say there are more than 3 lakh vendors, but they could
#
distribute only 1.25 lakh forms amongst the vendors and they received 99,000 forms filled.
#
And then they had criteria, you know, who is a real vendor.
#
So you have to submit proof of vending that you have been vending in Mumbai.
#
And then you also have to have domicile certificate, which was, you know, that of course the whole
#
sun off the soil debate in Mumbai inspires that kind of a requirement.
#
And apparently very few vendors, some figures say 5,000, some figures say 15,000, you know,
#
as per the news reports, were finally able to get some sort of I-cards or spaces to vend.
#
So out of all these, yeah, so imagine the figure says, I mean, some estimation says
#
that there are 3 lakh vendors, but the government distributed only 1.25 lakh forms.
#
They managed to get 99,000 filled forms and out of those, maybe like 15,000 were formalized.
#
So essentially the rest of them will have to continue to pay the haftas and the bribes
#
and whatever they basically do and the rent seeking continues and the sort of rent seeking
#
So, you know, I'll throw in a larger question here that you've obviously worked very intensively
#
on the street vendor issue, but you also worked on other policy interventions and all of that.
#
What is the chief impetus towards status quo within government circles?
#
Like government circles are very resistant to change and they prefer status quo.
#
Is it A, inertia or B, is it rent seeking?
#
Because very often what seems to me is that the people who can change the law and can
#
change the system are not actually people who are collecting bribes at the local level
#
There's nothing in it for them personally, which seems to dilute the reason of rent seeking.
#
So is it some kind of inertia or is there the influence of interest groups?
#
You know, at the top level, it's not so much, you know, their rent seeking incentive because
#
that doesn't happen in this case, at least at the top.
#
I think it's lack of understanding of, you know, either the incentives and also that
#
how this policy actually would work.
#
So is that that economic way of thinking is not there at all?
#
So they think they're doing the right thing?
#
So, you know, for example, at least in this case, the ideas came from the NAC of how the
#
law is to be designed and NAC's bias was towards more participatory forum.
#
But tell me one thing, for example, you know, the in commercial zones in Delhi, you know,
#
in the markets, you have car parking model.
#
And how it works is the municipal corporation would auction the car parking spaces.
#
It would do an inventory of the car parking space and it would auction the space to the
#
The contractor, I mean, we were at SDA market, right?
#
Just now, I mean, I paid 20 rupees and he had a machine to issue a ticket and collect
#
the money on a per hourly basis.
#
And so the contractor employs these people who collects money on per hourly basis from
#
There is no car owners committee to decide where should we park our car.
#
There is no survey of car owners or cars, you know, who parks where.
#
This is absolutely, you know, ridiculous to think of an election.
#
And you know, the election has to happen for street vendors to be able to represent in
#
the town vending committee.
#
So A, you have a participatory body, then there has to have elections.
#
And through these elections, people will be nominated, selected to the town vending committee.
#
The town vending committee will pass resolutions and then will regulate street vendors in
#
And this is such an unviable model.
#
And we see this because it's been six years.
#
Next week, I mean, we are recording now in February 3rd week.
#
And March 1st week is the sixth anniversary of this law.
#
And it's still not been implemented in most cities, most towns.
#
It's still not been implemented.
#
And this is the reason because it's unviable.
#
And so let me ask you a question here.
#
If you were to design the law, let's say that, you know, we've discussed what is wrong with
#
the design of the 2014 law and how it doesn't really solve anything and the incentives are
#
bad and it doesn't take economic or what I would say human reasoning into account.
#
If you were to design the law differently, what would you do?
#
So two options, either you communitize the private space or public space for private
#
use or you privatize it.
#
So the current car model is that they have privatized the space.
#
But I have sympathy for, you know, because those people who are there, the vendors who
#
are there, sitting there for many years or for decades, they have some sort of, you know,
#
customary right to that space and they trade in that space, which the government doesn't
#
They don't even acknowledge.
#
And by law, it's now made illegal that you can't transfer, but they do that.
#
And that's another point, you know, a transaction which is in conflict with law, right?
#
The government must appreciate that they should, you know, taken into account, they should
#
take into account this kind of transaction because it's a consensual transaction and
#
it builds property rights.
#
And the more property rights you have, you know, it's a path to prosperity.
#
So for example, you know, one vendor that I come across, he bought a space for two lakh
#
rupees, you know, near Gautam Nagar and he's been vending there.
#
Another example is of weekly bazaars, you know, Delhi has the system of custom of weekly
#
Like Darya Ganj book bazaar.
#
Right, that's another story which is now removed.
#
But I will take the example of Patel Nagar's Shukar Bazaar.
#
It happens every Friday.
#
Now imagine this spot, which is only occupied by the vendor for three hours on Friday evening.
#
There is trade, there is some sort of a property right in that also.
#
So once I approached someone asking, you know, how does one become a vendor in that Shukar
#
And he said, you want to become a vendor there?
#
And he looked me from head to toe and I didn't say no and he said, don't worry, I'll get
#
I mean, I'll get you a spot.
#
He said, it will happen.
#
It will be only 75,000.
#
So imagine that spot is available for transfer.
#
If you want to buy that spot, buy, you know, I mean, I was quite surprised.
#
It's available for 75,000 rupees.
#
You can buy that spot in perpetuity and then rent it out.
#
Or probably not rent it out.
#
But for example, this spot, you know, the Gautam Nagar spot for two lakh rupees, it's
#
in perpetuity because you don't have any patta, you don't have any title, but it's in practice.
#
It's a matter of practice.
#
I know another vendor who moved from, he was actually a vendor leader who moved from Surat
#
to Jaipur and we met him in Jaipur and he spot his pav bhaji spot for one lakh rupees.
#
Now my question is, who is this money going to and who is enforcing this?
#
Because these aren't legal property rights like you said.
#
So like, I mean, is this an sort of, is this, you know, where the state has completely failed
#
and abdicated the space and so therefore these solutions are coming from within society or
#
No, it's a consensual transaction between two consenting individuals.
#
So I occupy a spot and I assert my property right over that spot.
#
And at some point, if I want to exit from that sector, I will sell it to you.
#
The problem is why it seems to be illegal or illegitimate or in conflict with law is
#
that because the state does not recognize it.
#
The state does not recognize my property right over that piece of land, not even land.
#
I may be wrong in saying a piece of land, but my property right, this property right
#
is not just, you know, that you own that land, but it could be your right to.
#
You can sell it every Sunday, for example.
#
So now my question here therefore is that what seems to be happening here is that I
#
of course agree and we'll come back to this whole question of customary rights.
#
But I of course agree that if you've been a vendor in a particular spot for many years
#
and that right develops, you mix your labor with the land and you have that property right.
#
However, we define it not necessarily to land, but even to sell there for three years.
#
And the state is being incompetent in not recognizing it.
#
But regardless of that, we continue to function and I might then sell that right to you and
#
presumably at a discount to what I vote simply because there is an element of uncertainty
#
built in by the state still having the monopoly on violence and they can push you out of that
#
spot anytime they want if the will is there.
#
So you pay me less than what I would otherwise pay, you know, this reminds me of like one
#
of the books that changed the way I think about the world is The Mystery of Capital
#
And that's really in the context of slums and a very influential book for so many people
#
who've read it and all of us who have been changed by it.
#
And one of the things that points out is that you have people living in slums for years
#
and decades and so on, but they don't have property rights, though they actually should
#
because how you sort of gain property rights over an existing piece of land where no one
#
else has property rights is you mix your labor with it, you live long enough there, you trade
#
and all of that, and eventually it should belong to you.
#
And that's typically how these things evolve.
#
But when the state doesn't recognize that, they change that land into what de Soto calls
#
It is capital, but it is dead because you can't monetize it.
#
So I may live in a slum and effectively own the house that I live in and I've lived for
#
three decades and maybe I was born there and my parents were born there.
#
But I can't, for example, mortgage it and I can't sell it to someone else.
#
And what that does is that the value of the land which a piece of paper from the state
#
would otherwise, you know, all it requires is a piece of paper from the state saying
#
And because that piece of paper doesn't exist, the value of a parcel of land which could
#
be 20 lakhs is effectively zero or much less than that.
#
And that's a loss to society because that person could then mortgage that land, get
#
a loan to, for example, run a business, start a business, everybody benefits, society benefits.
#
And yet that doesn't happen.
#
Now, does a similar analog apply, for example, to street vendors?
#
Because, you know, there are certain sports in Delhi, certain kiosks in Delhi that command
#
a price of 16 lakhs, 18 lakhs, 20 lakhs.
#
And I was quite surprised because the figures that I had before this was something like
#
But now apparently there are sports that command that kind of prices and which means that these
#
vendors are not poor, they are rich.
#
Yeah, but they can't access their own wealth.
#
But they can't access it.
#
But they can't access it.
#
So they struggle to pay like a 2000 rupee hafta per month to someone and they are barely
#
And yet there is this value that they have which all the state has to do is, you know,
#
I won't say grant it to them because the state is not doing anyone a favor.
#
That's they've performed a service to society on that particular spot for years, if not
#
And recognition of that is.
#
So this law expressly prohibits transferability.
#
You can't rent out your spot.
#
You can't sell your spot.
#
And it also says that you have no ownership whatsoever in that spot.
#
So you're basically leasing a spot for personal use.
#
No, but in the sense that's effectively what you're doing.
#
If you can't give it to someone else and you can't sell it and you can't rent it out,
#
then you haven't really bought it.
#
You don't really own it.
#
So you've effectively just leased it in perpetuity.
#
Yeah, but the law says it's not even lease.
#
What it is, it doesn't define.
#
So, you know, it's sort of a fear that we won't even say that we have leased out it
#
So it says that there is no right whatsoever.
#
You can't claim any right whatsoever.
#
But you pay the money and you.
#
And that's quite bizarre.
#
So you know, to go back to the earlier question, if I can ask you to define, so what should
#
Are you then arguing that what the law should have done is done a survey of the vendors
#
and if they could prove they'd been there for long enough, then give them the associated
#
rights, property rights, not necessarily to the land, but the property rights to went
#
from there and then taken it from there.
#
Is that what you're saying or how would it work?
#
I am saying, you know, just formalize them, whoever is there, respect their right and
#
So respect the right to keep wending from there, which is like a property right of sorts.
#
So respect their property rights, allow them to be there.
#
So I'll give you, you know, another interesting insight from a paper written by Kettles.
#
It is a case study of MacArthur Park sidewalk vendors in the US.
#
And he gives an example across the road, you know, so this side of the road, there was
#
a formalized wending zone and that side of the road, it was unauthorized wending zone.
#
So there was no planning for wending, but there were nonetheless some vendors who were
#
And he compared the two.
#
He found out that in the unauthorized wending zone, the vendors that were wending there
#
had evolved their own norms of allocating spaces.
#
So there were two kinds of norms.
#
One was first come first serve basis on a daily basis.
#
So some spots that were not in much demand and whoever comes first will occupy that spot
#
And there were some vendors who have been there for a longer time and their spots were
#
sort of fixed and they assert their property right on those spots.
#
And other vendors would not claim those spots.
#
And even if they did, these vendors would assert their right.
#
And you know, without the intervention of any police or any mafia or any gang, the disputes
#
would settle amongst themselves, which means that sort of understanding of property rights
#
On the other hand, this side of the wending zone, the government engaged an NGO, some
#
organization to allocate spaces and they did draw flots and they tried to make it aesthetically
#
superior by saying that all the food stalls will be at one place and so on and so forth
#
Many days, many times, you know, those vendors didn't even come and the government spent
#
a lot of money on the NGO trying to figure out and make it work.
#
But it wasn't really a superior allocation of property rights.
#
And what this seems to illustrate is what Hayek would call emergent order.
#
That what you have on one side of the road is, I mean, Hayek's whole point is that look,
#
society eventually figures out frameworks and ways to work by itself.
#
And what the state should do is codify that into laws and something drastically unconstitutional
#
But what the sensible thing for the state to do is codify what works and the way things
#
And if it tries to design a society from top down and put its own frameworks in place,
#
And what you just described seems to be sort of a kind of a natural experiment in that.
#
Would you agree with that?
#
So Kettles, in fact, cite spontaneous order.
#
He uses that Hayek in term of spontaneous order, theory of spontaneous order.
#
And he precisely says that this works in this case.
#
And I totally agree with you.
#
One way is just recognize their property rights and formalize them.
#
And second way is maybe like that car parking model, something similar to that.
#
So you privatize that resource.
#
So I am saying that instead of maybe in green fields, some new markets coming up, there
#
you can have a private, a third party contractor, but in established markets and older markets,
#
you can give that right to the street vendor association, to the street vendor union and
#
ask them to pay the money, some sort of fee every month for maintenance or for electricity
#
or other civic amenities like water or sewage, pay to the municipal corporation.
#
They will earn really good amount of money if they agree to provide those services and
#
it will stop bribery and harassment.
#
And does this also speak to sort of a mindset difference between how we view cities?
#
For example, there is one view of cities, red city should be planned and there should
#
be zones and there should be blah, blah, blah.
#
And you design a city from the top down and there's another view that look, a city grows
#
organically and there is beauty in that.
#
And it may seem chaotic, but respect that organic process because everything is there
#
And obviously the two exemplars of these different ways of thinking are, you know, Robert Moses
#
who built New York City and there's a great biography of him by Robert Caro, where he
#
would not look at what is happening in the local community, but ki yaha pe flyover chahiye
#
acquire all this land, flyover banao and you build a city that is grand, but which breaks
#
down in all kinds of micro ways.
#
And an exemplar of the organic way is Jane Jacobs, who wrote that masterpiece, A Death
#
and Life of Great American Cities, which is an incredible book.
#
And that seems to me to get to the heart of the problem, but then the issue here is also
#
that spontaneous order, which is a fundamental truth behind which, why cities grow organically
#
and should grow organically is very counterintuitive that when people think of spontaneous order
#
that how can everything work on its own, there has to be a designer, planner, you know, all
#
So is that then a mindset problem that is hard to get with?
#
Because I am assuming that everyone you work with in government doubly so because they
#
actually have the power to design things, would have more of this planned mindset rather
#
than this organic mindset.
#
And you see that in the case of Daryaganj, you know, book bazaar, it used to happen only
#
And by the way, the law calls such markets, which have been existing for more than 50
#
years as heritage markets.
#
So Daryaganj book bazaar should have gotten the status of heritage markets.
#
Instead, it was removed and in the judgment, the court does not even refer to the law,
#
which was quite awkward.
#
I mean, they did not refer to, you know, the 2014 law and not to this concept of heritage
#
So the mindset is not just there in the executive, it's there deeply pervading in the judiciary
#
And if the judiciary doesn't refer to the law, then does that mean they are effectively
#
legislating from the bench in this instance again?
#
Or they're taking over the power role of the executive?
#
Because not just they are legislating, they are derogating, they are going in derogation
#
of what the parliament has legislated.
#
It's not that there is a legislative vacuum or a void.
#
There is a law in place, but you choose to not look at that and look the other way.
#
So it's worse than that.
#
So where do things stand today?
#
Like this is an issue you're still working on, CCS is still working on.
#
Where do things stand today?
#
Did the 2014 law make things better?
#
Like would you say it made things better, but nowhere by near enough?
#
Or would you say that it didn't really make a difference because of the way it was designed?
#
How likely is it to happen?
#
I'll tell you another story, which, you know, a vendor's case that we came across last year
#
And this is another example of the interface between the central act and the local act,
#
In the municipal act, municipality has the powers to impose chalans for violation of
#
sanitation, for nuisance, and so on.
#
And the chalans can be 50 rupees, especially for sanitation, it's 50 rupees.
#
So last year a vendor came to us, he was given a chalan.
#
And when he went to the magistrate, municipal magistrate, he was asked to pay 2000 rupees.
#
And you know, the vendor's nephew was quite net savvy.
#
He pulled out a judgment from Google, which said that the chalan can't be more than 50
#
And he showed that judgment to me, and I was quite shocked.
#
And then I, you know, we bought a copy of the municipal because at CCS we don't really
#
work on municipal corporation law.
#
We work mostly on education, but we got that copy, a bare act.
#
And we found out that the chalan was indeed just 50 rupees written in the law.
#
And so it can't be more than 50 rupees.
#
And you know, how can the magistrate ask for 2000 rupees chalan?
#
And I appeared before that magistrate, and first of all, he was not aware of this law.
#
He says, you are encroaching.
#
And this is why I have chalaned you, you know, I'm imposing a penalty of 2000 rupees.
#
So you know, when the sanitation inspector issued him the chalan, it mentioned the provisions
#
for violation of sanitation norms.
#
But now the magistrate says it's for encroachment.
#
And this law, 2014 law does not define encroachment.
#
There is no concept of encroachment because you are a street vendor, it's a private use
#
of public space, how can there be encroachment?
#
And anyways, because before survey, no vendor can be evicted, there's no question of encroachment.
#
So I brought that to his attention.
#
And he said, where is the law?
#
And it says 50 rupees, you take the 50 rupees, okay, even if we confess that, you know, there
#
was some violation of sanitation, you take 50 rupees, and they were happy to get 50 rupees.
#
But why should they give 2000 rupees?
#
And he was very adamant, we came back and he showed, you know, later if he showed bailable
#
warrants, and then he threatened to issue attachment of property notice that will take
#
away your stuff, they'll confiscate your goods, and things like that.
#
And then we asked for a copy of the order, and the magistrate refused to give us a copy
#
We asked him to, you know, inspect the court records, at least show us the record, you
#
know, how you are passing these orders, give us a copy, we can challenge it, he refused.
#
Then we challenged it in the Saket district court without a copy of the order and told
#
the judge there that, you know, the magistrate refused to give us a copy of the order and
#
you summoned that court records.
#
And she did that, she passed for that order.
#
And after two days when she got the orders, the judge had signed and passed that order
#
without, you know, the accused signing the form.
#
And the appellate court, the session judge found that very, you know, surprising because
#
this is violation of the law, you can't pass an order without the accused confessing.
#
But this is what he intended to do.
#
And she sent the case back to the magistrate, and he told, the magistrate told this vendor
#
that you don't come with the lawyer, I will, you know, acquit you of all charges.
#
He said, my lawyer, whether he will come or not, you first, I mean, my submission is that
#
I have not done any wrong.
#
So then he agreed and he acquitted him.
#
Four months later, the same vendor was chaland again.
#
And this was a different magistrate this time.
#
Again he went, he says, aapko 1000 rupee fine dena padega, usne gaha main kyun du, this
#
is my right, I can vent on the street.
#
He said, toh kya aap sadak gheer ke baith hoge?
#
He said, haan mera right hai, main kyun nahi baith hunga.
#
He said, aap agar nahi dogay, main aapko patiala district court bheesh dunga.
#
You know what the vendor said?
#
The jurisdiction is with the Saket district court, not with Patiala court.
#
He said, are you trying to teach me law?
#
He said, no, well, I'm just saying this, that the jurisdiction is here.
#
He said, then the court master whispered into the magistrate ears, sir, yeh wahi hai jo
#
ishli baar lawyer lekhay aaya tha.
#
And then the magistrate asked him, okay, toh kya aap firse lawyer lekhay aogue?
#
He said, yeah, he will come if required.
#
Then the magistrate was silent, he did not impose any penalty.
#
You see, I mean, it's not, you know, maybe we say this is informal, define informality,
#
Informality is when you have a formal norm and you are non-compliant, that is informality.
#
But who is not informal?
#
Your executive is informal, your legislature is informal, your judiciary is informal and
#
not just the municipal magistrate, right to the Supreme court, everyone is informal in
#
this country, you know, and we call the vendors informal, everything is informal, every institution
#
That's quite brilliant.
#
And it gives a spin to what I always say that, you know, in the popular imagination, there
#
is a sort of a dhaba on the word informality, that if you are in the informal sector, you
#
are in some way, there is a moral taint attached to you that you are evading the law, you're
#
not paying taxes and all of that.
#
And the point I keep making is that look, 80% of India is in the informal sector, not
#
because they are immoral or they don't want to be good citizens, but because they don't
#
have a choice, because your laws are so bad, your regulations are so bad, you know, there
#
is absolutely no option but to exist in what you call the informal sector.
#
And in this case, what strikes me is that the vendor is not even actually in the informal
#
sector because there are laws which kind of deal with him and regulate him.
#
And despite that, he has to go through this and all this while that you were telling me
#
this story, I was thinking, okay, this is actually an outlier vendor in the sense he
#
is an outlier because he has an access to a lawyer, which is you and you are going there.
#
And despite that, there is so much friction in dealing with this micro issue in neither
#
of you, whatever judgment you get is, you know, changing the bigger picture, it's one
#
And this vendor is so lucky.
#
And most vendors don't have this, they have to pay by hook or by crook.
#
And if that 2000 fine is too much for them, then they go out of business.
#
There is no choice and no one is measuring that all of that is unseen, you know, not
#
just a damage to the vendor, but all the people who were buying things from him were getting
#
value from him, which is also now lost to them.
#
And it hurts society when sort of things like this happen.
#
What do you guys do to also then change things at the macro level, you know, the implementation
#
of the laws, the writing of the laws, you know, what's going on?
#
Index is an effort in that direction to talk about the law, to have a, you know, discourse
#
around then you can measure it, that it's not working.
#
Although it's my personal stand, I'm not too sure about the institutional or the organizational
#
stand on that, but I am now increasingly of the view that the law is not very viable.
#
For all of these reasons, for all these reasons.
#
And you know, we've gone up in the ease of doing business rankings recently, dual questions.
#
One is this even relevant to that because ease of doing business people think of a different
#
kind of a formal thing where you're setting up a business and you're doing whatever.
#
And two, any metric that exists can be gamed.
#
And what I hear from everyone in the business space is that ease of doing business itself
#
hasn't changed or become better.
#
It's just that the few metrics that were there, which were being measured in specific places
#
have been gamed as metrics are liable to, and things are still incredibly hard for businessmen.
#
Like recently I think there was news in Delhi that you need to submit 40 something documents
#
to open a business, but 19 documents to buy a gun.
#
So it is easier to buy a gun legally than it is to open a business.
#
And it must be even worse for street vendors because there are so many other variables
#
The ease of doing business methodology does not even take the street vendors into account
#
for the purpose of their methodology.
#
And so, you know, they are in that kind of a gray zone.
#
Even if they are formal, they are formal, we know that they are formal because there
#
is a law governing them, regulating them and protecting them.
#
But for all those purposes, they don't exist.
#
So what is their ease of doing business?
#
It simply doesn't matter.
#
Although, I mean, I'm glad that the prime minister, given his background, that he was
#
himself a street vendor earlier, and he talked about, you know, the pakodawalas and so on
#
So I was quite hopeful that things will probably change.
#
But yeah, I mean, to that extent, I have not seen that kind of a change.
#
And the law definitely, though it was passed by the previous government, but this government
#
hasn't done really anything to reform the law.
#
It's still going at its own pace.
#
And can you briefly tell me a little bit about the political economy here?
#
Who are the people pushing for change?
#
And more importantly, who are the interest groups who are against change happening?
#
Like it seems to me that everyone would be better off if, you know, street vendors are
#
given the respect that they deserve, which all other small businessmen should also have.
#
I was about to say do, but but should you know, a lot of this reform doesn't actually
#
seem to really harm anyone except the local level municipal guy or the policeman who's
#
But they are not really powerful interest groups.
#
So what are the interest groups?
#
What are the forces that militate against this sort of change happening?
#
I think one of the, you know, disincentive is that most vendors are not the local citizens.
#
So they are not voters for the political parties.
#
That's one crucial factor at play.
#
And this is why it doesn't become a political issue.
#
In Mumbai, it does become a political issue because, you know, then it's about son of
#
the soil issue and that all the Zungabucker stalls should go to the local people and not
#
But otherwise in other cities, it's not really that kind of a political issue.
#
I think it's more a mindset issue because, for example, in Jaipur, you know, the establishment
#
thinks that they make the city look ugly.
#
It's an aesthetic problem.
#
But if you know, another thing which they probably don't understand is that once you
#
formalize it, then investment will flow into it.
#
You can't have poverty mandating laws, so poverty mandating meaning, you know, the law
#
So one condition is that you can't transfer.
#
The second condition is that you can't have an alternative source of employment, which
#
means, so for example, three MBA students called me up to say that we want to put up
#
They can't, you know, because then they have to show that they're poor or they don't have
#
any alternative source of employment.
#
A retired government bureaucrat once called me to say that I want to put up a food truck
#
This is so ambiguous, a person who wants to really invest money, you know, a food truck
#
would, it's not a thela wala or a handcart or something like that.
#
But our mindset is street vendor.
#
It means a poor guy clad in dhoti and, you know, kurta pushing a cart or something like
#
No, you know, your kiosks in T3 terminal, they are also street vendors as per the law.
#
The kiosk in the Supreme Court, you know, there is a guy who sells lawyers band and
#
stationery in the corridor of the Supreme Court, he's also a street vendor.
#
But this kind of understanding is absent.
#
We are conditioned to see street vending in a very narrow and conditioned perspective.
#
Street vendor does not and many street vendors, I can tell you, I sold my last car, you know,
#
my old car to a street vendor.
#
And he paid me money, invite, I mean, he, you know, paid the money, transferred the
#
money through bank account and street vendors are not poor.
#
Not all of them are poor at least.
#
Number two, they can become rich only if you don't, you know, force them to remain poor.
#
If you don't mandate poverty.
#
If you don't mandate poverty.
#
The problem with our laws is you're mandating poverty because we love poor so much.
#
And the other thing that, you know, at the risk of repeating ourselves that I would emphasize
#
that if a street vendor exists, if somebody starts a food truck and it takes off, it only
#
happens because it is providing a service to society.
#
People are willing to pay for it.
#
People feel that their lives are better off.
#
And it will also create jobs.
#
And it will create jobs.
#
The other thing our law says that you can't employ people.
#
You have to be there at the store yourself or your family.
#
Yes, you can't employ people.
#
So you can't employ people, you can't scale up, you can't monetize your, your debt capital
#
And, and, you know, when you spoke about in a couple of cities, the reason that there's
#
resistance to change is also that the street vendors don't have any political power because
#
they are migrants, which kind of brought to my mind the question that is a lot of the
#
popular opposition to street vendors also comes out of a kind of xenophobia that these
#
These are not our people.
#
Like in Bombay, they might well say that they are coming from UP Bihar and do those kind
#
of prejudices also sort of play into this?
#
So in Mumbai, it could be prejudices against the migrants because they are bhaiyas from
#
In Delhi, it could be because many of them are Dalits or Muslims and so on and so forth.
#
There are all kinds of class biases.
#
And again, the aesthetics, you know, they are making the city dirty.
#
This is one thing that I hear in my RWA meetings and on my RWA, you know, the WhatsApp groups
#
that they are making our neighborhood dirty.
#
So that elite sense of, you know, the cleanliness.
#
And how do you respond to it?
#
You know, so there are counter voices.
#
For example, in my RWA, which is all dominated by men, they sort of legislate that the vendors
#
cannot enter into the neighborhood and, you know, it's kind of a now a gated community.
#
And I said, you have to ask women, do they not want vendors?
#
First of all, I mean, that's another issue of legality, you know, whether you can oust
#
the vendors like that because it's a public road.
#
We are not a cooperative housing society like Mumbai or Gurgaon or Dwarka.
#
You can't ban the entry of another person as per your whims and fancy.
#
And the women, you know, they protested, they said, we want the vendors, why are you not
#
Yeah, it's easier for us to buy vegetables or buy whatever.
#
Why should we go somewhere else?
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And that's sort of, and, you know, again, time after time in the seen and the unseen
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over the many, many episodes that I've done, I will find that a lot of issues I discuss
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also have another aspect to it.
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Gender, which somehow, sometimes even I'm guilty of missing out on, which is an invisible
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And, you know, as you point out in this case, and I'm so glad you brought it up, that that's
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also an aspect that you have this bunch of men getting together with the Residence Welfare
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Association and not even caring about that.
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You know, the women might have different needs and different incentives and we should take
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Let's talk about encroachment.
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You know, so first you also have to see, are the shopkeepers not encroaching?
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And what is your strategy to stop that kind of encroachment?
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And how do you even define encroachment?
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Because if it's public property, what is encroachment?
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You know, if the RWA putting up gates and barriers is also encroachment, right?
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You parking your cars outside, that's also encroachment.
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So it's always, you know, the pointing fingers at the other.
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So the othering of street vendor is also prevalent, be it othering in terms of, you know, the
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migrant or in terms of the religion or in terms of caste.
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So that this class othering is also so sort of dominant, not just...
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This is why those judges, you know, when they say that they'll hold, vendors will hold the
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I mean, Himachal High Court says that these people come from outside to Shimla to, you
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He denied protection under that clause, you know, that no vendor can't be evicted unless
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Himachal High Court refused to protect those vendors, saying that these vendors can't claim
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protection again under the law because they are outsiders.
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The law doesn't say that.
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So it's interesting, it's incredible how so many, like, you know, public policy is supposed
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to treat everyone equally and it's supposed to be blind to all of this and it's very interesting
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how, you know, so many of these biases and prejudices play into the way public policy
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itself is designed and even the sort of core principles which, you know, sometimes go into
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And it's not designed this way, but it is the way it is being enforced.
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Though, I mean, one would argue that if it was designed properly, then there would be
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less scope for these biases to play out, right, if there were better sort of protections and
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safeguards and government was also sort of held accountable.
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So listen, I'm a big admirer of your work, but I'm also, I also sort of think I learn
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a bit from the way that you think.
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So I'll ask you, you know, a final question before we end this episode, which is more
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general, which is that, you know, at the start of this episode, I asked you if your approach
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to the law and the constitution was sort of shaped by your background, which is not an
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elite background where you're looking at it from top down, but you're a trader yourself
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And it seems to me that that question takes on far more relevance now, after all these
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years of experience doing all of this, where you look at the law, not just as, you know,
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all these statutes and notifications that are written somewhere and you, you, you know,
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you download the document, but you have to deal with them on a daily basis.
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You've argued all these cases in courts of law and you've seen close up how these laws
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and how our constitution itself, in fact, impacts the lives of ordinary people who do
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not have the sort of privileges that we do.
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How has this over the years changed the way you look at both the law and our constitution?
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You know, because I was brought up that way, so I could think that way.
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So for me to now think otherwise, that had I not been from a family of traders...
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I'm not asking for that counterfactual, but I'm saying that that notion, your understanding
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of the law, not your knowledge, but your understanding of the law would have been strengthened by
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this sort of interaction with it.
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Is that the case is what I'm asking?
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That's certainly the case.
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You know, I see a difference the way I approach or I look at economic restrictions vis-a-vis
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other legal scholars do, and there is, you know, a huge difference.
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For them, the other fundamental rights are much more sacrosanct.
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I don't believe any hierarchy of fundamental rights, which a lot of people, other people
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claim that there is a hierarchy of fundamental rights and on that fictional hierarchy, freedom
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of speech and expression is at the top.
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But you look at the number of cases, you know, the writ petitions right from 1950.
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So you know, there are search engines for lawyers wherein you can look for cases.
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Just type Article 19.1a and look for what results you get and type Article 19.1g, which
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is the economic freedom right, fundamental right.
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So 1a refers to free speech and 1g is economic freedom.
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You probably would get twice or thrice the number of results for Supreme Court and also
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for High Court cases for 19.1g, right.
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That definitely shows something.
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Also Rohit Dey's book, but Rohit Dey's book is more a qualitative work, but I'm talking
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about now, you know, some sort of numbers.
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And there are many more cases pertaining to 19.1g, right.
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I mean, people go to the courts.
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You look at, for example, the cow slaughter cases, right.
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Now for each cow slaughter law, when it is challenged in the court, you have 4,000, 5,000,
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10,000 members of Qureshi community, you know, challenging it in the court, right.
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And when these people say, when other legal scholars say that, you know, right to religion,
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for example, is a higher right than economic freedom.
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But you know, these things are, there is sort of intersection between these things.
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Your economic freedom intersects with your identity, right.
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So you can't see these things in isolation.
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You know, when there is a law which impinges on your freedom to, let's say, deal in beef
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or a deal in meat, it impacts your identity.
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When a law, you know, that taxes a commodity, let's say Parle-G biscuit, I've heard Shruti
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on your podcast, you know, imposes a higher tax on Parle-G than on diamonds.
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Then also it impinges on your identity as a consumer.
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Often there are patterns of consumption and production.
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So for example, hypothetically, let's say government imposes higher tax on coffee than
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It will impact South Indian coffee producers as well as South Indian coffee consumers,
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And more tea drinkers are consumers are in North and the producers may be in Northeast,
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I mean, there is a pattern, right.
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All that I'm trying to say.
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So to say that one right is above the other because, you know, so and so, and these people
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probably have never vended, never done any sort of business.
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They are probably there in the universities taking a salary.
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I'm saying just one day stand in the street and do street vending or earn money and start
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a business and try to earn money.
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Then you will be able to appreciate, you know, a the right and as well as the daily struggles
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of other people, right.
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Unless then until then you have no right to say that freedom of freedom of speech and
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expression is your vested interest because you write, you express yourself.
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But what about, you know, the livelihood right of other people.
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So very interesting, you know, when there are, when there were cases that involved intersection
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of free speech and economic freedom, you know, for example, in cases where newspapers building
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was to be acquired or the machinery was to be acquired or things like that, or, you know,
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there was some restriction on your right to sell newspaper or right to acquire newspaper.
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Then both rights intersect, right.
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Then how do you perceive this right?
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So it's easier to say that one right is important over the other.
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But unless you ask the person who is in that shoe, you can't make a universal claim for
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I couldn't agree with you more.
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In fact, I'm a freedom absolutist.
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I think there should be none of these restrictions on either of these rights and we should treat
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Prashant, you know, thanks so much for coming on the show and learnt a lot from you today
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and more part of what you do in future.
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If you enjoyed listening to this episode, do read some of Prashant's writings, which
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are linked from the show notes.
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You can follow Prashant on Twitter at law.et.al.
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You can follow me at Amit Verma, A-M-I-T-V-A-R-M-A.
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You can browse past episodes of The Scene and the Unseen at sceneunseen.in and thinkpragati.com.
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Thank you for listening.
