By Joel Kyndiah
The ongoing debate in response to my earlier article, “Laitumkhrah Aesthetics and Middle Class Victimhood” (ST December 5, 2024) is both engaging and interesting. Hence, this article which demolishes some of the arguments of Lyzander Sohklet in his article “Urban Ideals vs Ground Realities” (ST December 6, 2024).
However, rather than resorting to an exhaustive point – by – point counter rebuttal, or dwelling on small disagreements, as though I were drafting a Rejoinder to my earlier Written Statement in response to what I may equate as Sohkhlet’s Ejectment Suit against the hawkers in this Court of public opinion – I intend to redirect the conversation. Instead of framing this strictly as a counter rebuttal, limited to the discussion on the competing claims between the menacing “illegitimate” hawkers, and the “victimized” law abiding “middle class,” I intend to address two fundamental flaws in Sohkhlet’s rebuttal, and redirect this rejoinder to the broader issue of procedural due process, negotiation of space, and public participation.
In this context, I appreciate Sohkhlet’s humility in revising his argument, where his stance originally characterizing the hawkers as “audacious” for threatening “legitimate businesses” to acknowledging, in his rebuttal, that hawkers may earn their livelihoods, provided they do it within the boundaries of the law (no pun intended), thereby marking a shift towards a position of empathy, as a common ground for this discussion.
Right of Way vs. Right to Livelihood
Sohkhlet argued that hawkers occupying the pavements is a violation of a pedestrian’s right of way and passage under Article 19(1)(d) — the right to freedom of movement throughout the territory of India. While this could be constitutionally interpreted to encompass localized right of way, wherein hawkers preventing the right of way are violating a fundamental right of the pedestrian, this interpretation may be problematic for Article 19(1)(d), which pertains to the “right to move freely throughout the territory of India,” rather than specifically within the confines of a locality such as Laitumkhrah. While not subscribing to a strictly textualist approach of constitutional interpretation and looking at purposive interpretation, viewing the Constitution as a dynamic, living document in the present context one might interpret Article 19(1)(d) as potentially being infringed upon if the right of way is obstructed by hawkers.
However, what Sohkhlet fails to account for is whether Article 19(1)(d) could be used to curtail and restrict the hawker’s right to engage in trade under Article 19(1)(g). As far as I am aware, any reasonable restrictions on fundamental rights would only be permissible under the specific provisions of Article 19(2) — not under Article 19(1)(d), which itself is reasonably restricted under Article 19(2) through the Inner Line Permit (ILP) for example.
It is an established principle of law, that fundamental rights are not mutually exclusive. Hence, the right to move freely throughout India and the right to practice any profession or carry on any occupation, trade, or business are distinct rights and cannot be used to restrict one in favour of the other. Therefore, the “absolute” freedom of trade and right to livelihood which may violate the “urban order” in this context is reasonably restricted with the procedure, definitions, and self-regulations of the Town Vending Committees under the Street Vendors Act (Protection of Livelihood and Regulation of Street Vending) Act 2014, that give effect to Article 19(2), ensuring restrictions in the interest of public order, safety, and convenience, while also mandating stakeholder participation and due process. The right to trade and livelihood of the hawkers is also inherently tied to their right to life and personal liberty under Article 21 as established in Olga Tellis v. State of Bombay (1986), which affirmed that pavement dwellers have a constitutional right to dignity, and livelihood under Article 21.
Due Process and the Missing Crux
While the Supreme Court in Olga Tellis recognized the illegality of encroachments (a point with which I align with), it emphasized that livelihoods should not be disrupted without adhering to due process. Therefore, any limitation on the hawkers’ activities should be subject to lawful restrictions, but these must be balanced with their constitutional right to livelihood and due process of issuing notices, effective stakeholder participation and natural justice. For legal administrative action, following “due process” and the “procedure established by law”, is imperative, and it is this crux that is missing in our discussions that continues to polarize the hawker experience and urbanisation questions in Shillong, and frame the situation as a zero-sum game of “menacing” hawkers, the “victimized” middle class, and the helpless government. Thus this continued narrative of hawkers as a “gauntlet of obstructions”, is to inanimate their livelihoods as an obstruction. Which begs the question – have we considered the many homegrown efforts from the hawkers to self-regulate, such as the odd-even system they were implementing near Civil Hospital, with numbers and a lottery system to reduce congestion?
Street vendors have voiced strong dissatisfaction with the “in-situ survey” conducted, criticizing its unilateral nature and lack of transparency. A fair survey, as per due process, would require proper notice to all vendors, including seasonal hawkers, a public display of the surveyed names, and a clear timeline to address objections. By sidelining these principles of natural justice, the survey excludes legitimate vendors and undermines their trust in the TVC. Adding to the concern, the provisional TVC does not meet its legal mandate of 40% representation from elected hawkers. The claim that vending zones are “notified” is equally misleading, as mere identification of localities does not constitute formal notification through a gazette publication. Without these critical steps, expecting vendors to shift to designated zones appears both premature and unfair.
Additionally, while Sohkhlet’s concern about the safety risks to pedestrians and school students in narrow roads, is legitimate; equating hawker stalls with static encroachments like parked vehicles oversimplifies the issue. The Supreme Court’s ruling in S. Rajaseekaran v. Union of India, which Sohkhlet cited rightly emphasized safe, unobstructed pathways. Yet, it also highlighted the role of better road engineering and planning—a responsibility of urban authorities, not hawkers alone.
The Ground Reality of Spatial Justice
While my earlier engagement with Zizek’s framing of class antagonisms, alongside Lefebrve’s notion of the “right to the city” (TST, 5th December 2024), is rebutted to be “lofty” and a “philosophical posturing”, I emphasize that I am neither a philosopher nor sociologist. My objective is not to validate my critique by free-riding on established Western philosophers, and transplant their frameworks to understand contexts removed from the reality where their assessments developed, and therefore succumb to an “incredulity of meta-narratives,” where it may be rebutted that I am falling into a “grand narrative” trap for using assumptions of socio-economic inequities perpetuated by capitalism to frame the condition of hawkers, while overlooking the fact that the desire for urban order in Laitumkhrah is not rooted in these “abstract” ideas, but is independent of any biopolitics regulating the lives, and kiosks of the hawkers but simply grounded in the reality of pedestrian rights.
Rather I demonstrate that my utilization of Zizek and Lefebrve, provides the foundation for extending my observation through Edward Soja’s treatise of ‘spatial justice’ – based on the ‘trifecta’ of the Firstspace (the physical aspects of space like urban infrastructure), the Secondspace (the ideas, perceptions, meanings, and rights we attach to space), and the Thirdspace (the interaction of the first and second, representing lived experiences). This provides the framework of spatial justice and its attributes of equitable distribution, participatory planning, and due process of law.
Here, I argue that Soja’s ‘spatial justice’ is not just a jurisprudential abstraction, but manifested in the reality of the ‘Thirdspace’ of the Street Vendors Act, and its understanding of the liminality of the economy of street vending, by recognizing the concepts of “natural”, and “heritage markets”, demonstrated in the trifecta of the ‘Firstspace’ in the pavements and roads, the ‘Secondspace’ in the inherent right to livelihoods, and the Act as the ‘Thirdspace’ providing the protection and regulation for the same.
Section 2(l) of the Act defines street vendors as those using public spaces such as “streets”, “pavements”, “footpaths”, using “temporary structures” for their livelihood, recognizing the transient nature of their economy. This understanding underscores that vending zones should not isolate vendors or disrupt established marketplaces, as this would create artificial ghettos disconnected from natural markets.
The Act also protects natural markets—organically developed spaces identified by TVCs and heritage markets, those existing for over fifty years, which would include Police Bazaar, Motphran, and the Laitumkhrah Market. The Act, through the logic of “natural”, acknowledges markets as evolving, organic spaces, with fifty years of continuity granting heritage status. It recognizes the neural network of hawking economies and larger markets, ensuring that vending zones identified by TVCs, even when notified, remain connected to natural or heritage markets rather than isolated. Even if vending zones in Laitumkhrah are notified, they will, in letter and spirit, remain within Laitumkhrah, likely in the same areas currently occupied, with proper demarcation and measures to alleviate congestion, which aligns with the jurisprudence of spatial justice and the concept of liminal economics. Hence, can it be deemed an abstraction when it is firmly grounded in a statutory framework?
(The author is pursuing his 4th Year, B.A., LL.B (Hons.) at NLU Kolkata and is grateful for the insightful responses received. Contact: [email protected] )