Per Kuldip Singh, J. (concurring)
Street trading, whether as an itinerant vendor/hawker or from a stationary position/receptacle/kiosk/footpath, is a fundamental right guaranteed under Article 19(1)(g). The said right is subject to reasonable restrictions imposed by the State under Article 19(6). However, there is no fundamental right of a citizen to occupy a particular place in any street for the purpose of engaging himself in “street trading”.
(Para 27)
The guarantee under Article 19(1)(g) extends to practice any profession, or to carry on any occupation, trade or business. “Profession” means an occupation carried on by a person by virtue of his personal and specialised qualifications, training or skill. The word “occupation” has a wide meaning such as any regular work, profession, job, principal activity, employment, business or a calling in which an individual is engaged. “Trade” in its wider sense includes any bargain or sale, any occupation or business carried on for subsistence or profit, it is an act of buying and selling of goods and services. It may include any business carried on with a view to profit whether manual or mercantile. “Business” is a very wide term and would include anything which occupies the time, attention and labour of a man for the purpose of profit. It may include in its form trade, profession, industrial and commercial operations, purchase and sale of goods, and would include anything which is an occupation as distinguished from pleasure. The object of using four analogous and overlapping words in Article 19(1)(g) is to make the guaranteed right as comprehensive as possible to include all the avenues and modes through which a man may earn his livelihood. In a nutshell the guarantee takes into its fold any activity carried on by a citizen of India to earn his living. The activity must of course be legitimate and not anti-social like gambling, trafficking in women and the like.
(Para 28)
Street trading is an age-old vocation adopted by human beings to earn living. This is prevalent even in countries where there is a complete social security and no compulsion on the citizens to be driven to street trading out of poverty or unemployment. On the other hand abysmal poverty in India warrants outright rejection of the argument that nobody has a right to engage himself in “street trading”.
(Paras 29 and 30)
So once street trading is accepted as legitimate trade, business or occupation, it automatically comes within the protection guaranteed under Article 19(1)(g). Public streets are primarily to be used by the public, generally as pathways for passing and re-passing but there are other ancillary purposes for which the public streets can be used as of right. There is thus no justification to deny the citizens of their right to earn livelihood by using the public streets for the purpose of trade and business. However is within the domain of the State to make any law imposing reasonable restrictions in the interest of general public. This can be done by an enactment on the same lines as in England or by any other law permissible under Article 19(6).
(Paras 31, 32 and 35)
Saghir Ahmad v. State of U.P, AIR 1954 SC 728 : (1955) 1 SCR 707; Manzur Hasan v. Muhammad Zaman, AIR 1925 PC 36 : (1924) 52 IA 61; Himat Lal K. Shah v. Commissioner of Police, Ahmedabad, (1973) 1 SCC 227 : (1973) 2 SCR 266, relied on
Since a citizen has no right to choose a particular place in any street for trading, it is for the State to designate the streets and earmark the places from where street trading can be done. Inaction on the part of the State would result in negating the Fundamental Right of the citizens. If the State fails to do the needful within reasonable time it would be left to the courts to protect the rights of the citizens.
(Para 35)
Bombay Hawkers' Union v. Bombay Municipal Corporation, (1985) 3 SCC 528; Municipal Corporation of Delhi v. Gurnam Kaur, (1989) 1 SCC 101 : AIR 1989 SC 38, referred to
The Supreme Court in its various judgments has often reminded the Government of its constitutional obligations to ameliorate the lot of the poor in India. Nothing much has been achieved. An alarming percentage of population in India is still living below poverty line. There are millions of registered unemployed. The Government, in spite of constitutional mandate is unable to provide them with employment. But when, by gathering meagre resources, they try to employ themselves as hawkers or street traders they cannot be stopped on the pretext that they have no right, rather the Government should render all help to rehabilitate them.
(Para 30)
R-M/9519.C