Prashant Narang: The Need for an Account of Public Purpose

A common public law requirement across the common law world is that officials act for a public purpose. But what constitutes a ‘public purpose’? This post explores the legal regulation of Indian street vendors to show how a failure to define public purpose leads to abuse of power and harmful impacts on very vulnerable individuals. 

The Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act 2014 (“SVA 2014”, or “the Act”) was enacted in India to protect street vendors from harassment by municipal officials and the police and the risk of undue eviction (Standing Committee Report, 2013). However, the question of whether there has been an undue eviction by bureaucrats remains one of the most contested issues before the courts. High court judgments on the SVA 2014 between Oct 2017 – Jan 2019 show that in 47 out of 57 cases, vendors challenged the legality of evictions (CCS 2019).

Vending without a certificate or with a canceled certificate is the only ground for eviction under the SVA [section 18(2)].  The authorities may relocate street vendors if the number of existing vendors in an area exceeds 2.5 percent of the local population [section 3(2)] or to further a ‘public purpose’.

 Clause (zb) of the Second Schedule sets out further statutory conditions that need to be met before a relocation is ordered for furthering a public purpose. First, a relocation must be avoided unless there is a “clear and urgent need.” Second, “planning and implementation” of a relocation must be participatory. Third, relocation must not deteriorate the standard of living for vendors. Fourth, displaced vendors must be accommodated in-situ as co-beneficiaries of any new infrastructure project for which they are being relocated. Fifth, vendors must be compensated for losses, if any, during relocation. Sixth, vendor’s right to vend and the right to be relocated back to that site would be intact even if the site is transferred from one government agency to another. Seventh, undue or forced evictions must stop. Eighth, some markets are considered “heritage markets” and cannot be relocated.

In short, the Act is meant to protect street vendors from arbitrary, unfair or unnecessary harassment and eviction by officials. This blog post offers an account of how, despite these laudatory aims, the Act is unable to achieve this end due to the absence of a good account of ‘public purpose’.

How do individual states define public purpose?

Section 38 of the SVA requests individual states and union territories to notify the Central government of their schemes for determining relocations of street vendors.  Of the 26 states and union territories that have done this, Andaman and Nicobar Islands, Andhra Pradesh, Arunachal Pradesh, Chandigarh, Dadra and Nagar Haveli, Daman and Diu, Gujarat, Himachal Pradesh, Mizoram, Nagaland, Odisha and Telangana do not define ‘public purpose’.  

The schemes in place in Tamil Nadu, Goa, Kerala and Manipur adopt the following approach in defining what will constitute a “public purpose”:

  1. Relocation should be for “betterment of the general public”. In deciding this, the local authority should factor in the importance of any redevelopment project that requires the relocation of vendors and the resultant benefit to the general public.
  2. Certain infrastructural needs are deemed to further a ‘public purpose’.  This includes traffic-easing infrastructure projects such as pedestrianised areas, bus stops, and ‘other analogous activities’.
  3. A Town Vending Commitee may also find a ground for relocation as beneficial for the public. Such a ground will also count as public purpose.

Bihar, Punjab and Rajasthan provide an inclusive yet insufficient definition of public purpose by listing some infrastructure activities that will be deemed to further the ‘public purpose’.  However, it is followed by a general proviso that states that “any other developmental work taken by the local authority, the beneficiary of which will be the community at large” may also further the ‘public purpose’. This is similar to the provisions in the Tamil Nadu, Goa, Kerala, Delhi, Meghalaya, Tripura and Manipur schemes.

The issue is that at the state-level, there is still a significant amount of discretion vested in the local authorities to determine what can constitute a ‘public purpose’.  This opens up the power to order a relocation open to abuse, as the cases discussed in the next section demonstrate.

How do the Courts interpret the Public Purpose?

A study of case law of state-level courts from January 2017 and September 2018 on the SVA shows that eviction on the basis that this is required for a ‘public purpose’ is the most contested issue under the SVA. However, courts did not deliberate on the definition of public purpose or the due process in detail in even a single case.

Courts instead justified the evictions in three ways, all of which showed insensitivity to the importance of the public purpose requirement.   

First, in some cases, courts tended to accept the state’s view on what constitutes a ‘public purpose’.  For example, in 2017, some street vendors from Kolkata challenged their eviction on the ground that there was no ‘public purpose’ that required it (Gopal Sardar v State of West Bengal 2017). However, the High Court without looking at the notification dated 1 May 2014 issued by the Central Government, held that the Act had not been notified yet. Further, the Court held that the “overwhelming public interest involved in the widening and strengthening of the Easter Metropolitan Bypass road and construction of an underground drainage system and footpath” clearly trumped the rights of the vendors. This was done without any serious judicial deliberation on the meaning of ‘public interest’.

Second, in other cases, courts ignored the public purpose issue and focused on other (arguably irrelevant issues).  The High Court of Delhi treated a vendor as an encroacher – a term not defined in the Act – unless the person had been identified in pre-2014 survey. The High Court of Delhi instead of deciding whether the eviction was lawful or due process was followed, decided whether the petitioner was an encroacher. If the name of the petitioner appeared in list of vendors prepared by Thareja Committee (1992), the Chopra Committee (1996) or NDMC (2007), then the petitioner deserved to be relocated (Mohan Lal v NDMC 2018; Sheetal Prasad Gupta v NDMC 2017; Virender v SDMC 2017); otherwise the petitioner would be treated as an encroacher (Bhikki Ram v NDMC 2017). 

Third, in other cases, ‘public purpose’ or ‘public interest’ was used to support eviction on very loose grounds.  The High Court of Delhi sought to “protect” the pre-2014 no-vending zones to balance “public interest” until the Town Vending Committees are constituted under the Act to review the zoning demarcation (Hawkers Adhikar Suraksha Samiti v Union of India 2016). In a subsequent case, the High Court of Delhi upheld the eviction on the ground of primacy of “life and security of public in general” over right to livelihood of vendors (Vyapari Kalyan Mandal Main Pushpa v South Delhi Municipal Corporation 2017).

Conclusion

Requiring officials to justify their actions in terms of public purpose is a significant move. It has the potential to check the power of officials to arbitrarily evict or relocate vendors. But this term remains unsatisfactorily defined in the SVA, by states in their respective relocation schemes and also by the courts. This opens up the powers under the SVA to abuse. Public officials continue to evict vendors arbitrarily without having to justify public purpose.

There is a need for a good account of public purpose for both the SVA, and Indian administrative law in general, if officials are to be effectively constrained from arbitrary or unfair actions. Building such an account would be a promising project for future research and would benefit from comparative insights from the administrative law of the rest of the common law.

Prashant Narang is the Associate Director, Research at the Centre for Civil Society

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