The Right to Work

The right to work is found at the international level in Article 23 of the UDHR and in Article 6 and 7 of the ICESCR and at the national level in Article 41 of the COI. Article 23(1) of the UDHR, for example, states that “[e]veryone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.” (UN 1948, Art. 23) Article 6(1) of the ICESCR establishes “the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts” (UN 1966, Art. 6). In addition, Article 7 of the ICESCR provides for “the right of everyone to the enjoyment of just and favourable conditions of work” (ibid., Art. 7). ^[5] In India, the right to work is part of the Directive Principles of State Policy. Article 41 of the COI states that “[t]he State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want.” (GOI 2020, Art. 41)

Additionally, in India, the right to work is read as a part of the fundamental right to life. This reading can be traced back to the 1985 case Olga Tellis v. Bombay Municipal Corporation in the SCI, which came about through writ petitions in 1981. The case dealt with the forcible eviction of “[p]avement and slum dwellers” and the removal of their hutments in Bombay (Mumbai) under Section 314 of the Bombay Municipal Corporation Act, 1888 (SCI 1985, p. 1). The issue was whether the forcible eviction deprived them of their means of livelihood and consequently of their right to life. The petitioners urged that “[t]he right to live and the right to work are integrated and interdependent and, therefore, if a person is deprived of his job as a result of his eviction from a slum or a pavement, his very right to life is put in jeopardy.” (ibid., p. 17) The SCI agreed with the petitioners and emphasised that they “live in slums and on pavements because they have small jobs to nurse in the city and there is nowhere else to live. […] To lose the pavement or the slum is to lose the job.” (ibid., p. 5) Hence, the fundamental right to life must include the right to work.

To ensure the right to work in rural India, the Parliament of India enacted the National Rural Employment Guarantee Act, 2005, later renamed as the Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA) in 2009. The MGNREGA provides a “legal guarantee for at least 100 days of employment every year at minimum wages for at least one able-bodied person in every rural poor household.” (GOI 2005, p. 1) According to the Act, “at least one-third of the beneficiaries shall be women who have registered and requested for work.” (GOI 2005, p. 32) Beyond that, the state is obliged to increase the participation of single women and disabled people. Moreover, if an applicant is not provided with work within 15 days, a daily unemployment allowance must be paid to the household of the applicant. For urban areas, however, there is no comparable Act at the national level, but some states, such as Kerala, Odisha, Himachal Pradesh, Madhya Pradesh, and Jharkhand, introduced urban versions of the MGNREGA. ^[6]

The Right to Livelihood

The right to livelihood is found at the international level in Article 25 of the UDHR and in Article 11 of the ICESCR and at the national level in Article 19(1)(g), 21, and 39(a) of the COI. Article 25(1) of the UDHR, for example, states that “[e]veryone has the right to a standard of living adequate for the health and well-being of himself and of his family” (UN 1948, Art. 25). Article 11(1) of the ICESCR states that “[t]he States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions.” (UN 1966, Art. 11) In India, the right to livelihood is a Fundamental Right and part of the Directive Principles of State Policy. Article 19(1)(g) of the COI establishes the fundamental right “to practise any profession, or to carry on any occupation, trade or business.” (GOI 2020, Art. 19) Article 21 of the COI provides that “[n]o person shall be deprived of his life or personal liberty except according to procedure established by law.” (ibid., Art. 21) Article 39(a) of the COI states that “[t]he State shall, in particular, direct its policy towards securing that the citizens, men and women equally, have the right to an adequate means of livelihood” (ibid., Art. 39).

The interpretation of Article 21 of the COI to include the right to livelihood can also be traced back to the 1985 case Olga Tellis v. Bombay Municipal Corporation in the SCI, which I outlined in the previous subsection (Kothari 2014, p. 13). In sum, the SCI held that the right to life does not only mean that life cannot be extinguished or taken away except according to procedure established by law. It also implies the right to livelihood because “no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to live, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation.” (SCI 1985, p. 4) Further, the SCI noted that “any person who is deprived of his right to livelihood except according to just and fair procedure established by law, can challenge the deprivation as offending the right to life conferred by Article 21.” (SCI 1985, p. 4)

The Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014, for instance, aims to ensure the right to livelihood for urban street vendors in India. Under this Act, every street vendor who has no other means of livelihood is entitled to a certificate of vending, and every street vendor has “the right to carry on the business of street vending activities in accordance with the terms and conditions mentioned in the certificate of vending.” (GOI 2014, Sec. 12) In addition, any street vendor who has been issued a certificate of vending cannot be relocated or evicted without the local authority giving 30 days’ notice. In the case of relocation, street vendors who possess a certificate of vending are entitled to a new site or area, and they are to “be relocated so as to improve their livelihoods and standards of living or at least to restore them, in real terms to pre-evicted levels” (ibid., p. 14). Moreover, when street vendors are displaced for new infrastructure development projects, they must be allowed to make use of the livelihood opportunities created by the new infrastructure.

The Right to Food

The right to food is found at the international level in Article 25 of the UDHR and in Article 11 of the ICESCR and at the national level in Article 47 of the COI. Article 25(1) of the UDHR, for example, states that the right of everyone “to a standard of living adequate for the health and well-being of himself and of his family” includes, in particular, food (UN 1948, Art. 25). Similarly, Article 11(1) of the ICESCR stipulates that “the right of everyone to an adequate standard of living for himself and his family” includes adequate food. In addition, Article 11(2) establishes “the fundamental right of everyone to be free from hunger” (UN 1966, Art. 11). In India, the right to food is part of the Directive Principles of State Policy. Article 47 of the COI states that “[t]he State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties” (GOI 2020, Art. 47).

Moreover, the SCI has held that the right to food also derives from the fundamental right to life. On 26 May 2020, the SCI took suo motu cognisance of problems and miseries of migrant labourers who had been stranded in different parts of the country, often without food and water. One year later, on 29 June 2021, the SCI delivered its landmark judgment in Suo Motu Writ Petition (Civil) No. 6 of 2020 entitled In Re: Problems And Miseries Of Migrant Labourers with Writ Petition (C) No. 916 of 2020: “[t]he fundamental right to life enshrined in Article 21 of the Constitution may be interpreted to include right to live with human dignity, which may include the right to food and other basic necessities.” (SCI 2021, p. 28) Moreover, the SCI made special reference to unorganised workers and said that it was the duty of the GOI to provide food security to them (PTI 2021).

To achieve this, the Parliament of India enacted the National Food Security Act, 2013 (NFSA), also called Right to Food Act, already eight years earlier, which legally entitles up to 75 per cent of the rural population and 50 per cent of the urban population to receive subsidised foodgrains. Out of a maximum coverage of 813.4 million persons, around 800 million persons are covered under the NFSA (NFSP n.d.). In its 2021 judgment, the SCI directed the GOI “to take steps to undertake exercise under Section 9 of the National Food Security Act, 2013, to re-determine the total number of persons to be covered under the Rural and Urban areas of the State, which shall be beneficial to large number of persons.” (SCI 2021, p. 34) Beyond that, the SCI directed the states who have not implemented the One Nation One Ration Card (ONORC) scheme to implement the scheme by not later than 31 July 2021. The ONORC scheme was launched in 2019 to benefit migrant NFSA beneficiaries in particular by empowering them “to access foodgrains from any Fair Price Shop (FPS) of their choice anywhere in the country” (Rajagopal 2021).

The Formalisation of the Rights of an Individual

The first element in the realisation of human rights is the formalisation of the rights of an individual through acts of the parliament. In the ideal world of policy makers, formalised rights empower the individual to raise a (formal) individual claim with a court or a tribunal (Davy et al. 2013, p. S72). Street vendors in India, for example, have the formalised right to carry on their business under the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014. Formalised rights require exogenous enforcement by a third party organisation, such as the state. In reality, however, informal rights in the form of norms and customs play an important role. ^[7] These may be legitimate in the eyes of street vendors, but they are illegitimate in the eyes of the state (Leach et al. 1999, p. 238). An example of this is the informal right of street vendors to use public spaces for street vending. Informal rights are endogenously enforced and “upheld by mutual agreements among the social actors involved, or by relations of power and authority between them.” (ibid., p. 238)

The Obligation of the Government to Comply with Human Rights

The second element in the realisation of human rights is the obligation of the government to comply with human rights. ^[8] Following Eide (1987; 2001), I examine state responsibility for human rights at three levels: (1.) the obligation to respect, (2.) the obligation to protect, and (3.) the obligation to fulfil. The latter, in turn, incorporates both an obligation to facilitate and an obligation to provide. However, the obligation to fulfil (provide) can be disregarded for the moment, as this obligation only arises when (food) street vending is no longer possible. In a more general context, the above-mentioned MGNREGA, the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014, and the NFSA are examples of how the Indian state provides the right to work, the right to livelihood, and the right to food, respectively.

First, the obligation to respect means that states must “respect the resources owned by the individual, her or his freedom to find a job of preference and the freedom to take the necessary actions and use the necessary resources—alone or in association with others—to satisfy his or her own needs.” (Eide 2001, p. 23) For the latter, collective or group rights are of particular importance: the resources belonging to a group of people, such as street vendors, must be respected so that they can satisfy their needs. This refers, for example, to the (informal) right of street vendors to use public spaces like streets and pavements to sell their goods. States must also respect the resources that individual street vendors own, such as stalls or carts, and not let them be demolished during raids by local authorities. Furthermore, states must respect street vendors’ choice of profession and their freedom to operate their business. Last but not least, states must respect food street vendors as a source of adequate food for the population and not take any measures that result in preventing access to them.

Second, the obligation to protect consists “of, for example, the protection of the freedom of action and the use of resources against other, more assertive or aggressive subjects” with the aim to protect individuals and groups against human rights abuses (ibid., p. 24). This obligation also includes the prevention of infringement of the enjoyment of the material resources of individuals or groups (Eide 1987, p. 15). In the context of street vendors, states must protect them against “more powerful economic interests” (Eide 2001, p. 24). For instance, new infrastructure development projects must be implemented in such a way that street vendors do not lose their livelihoods. Moreover, states must ensure that street vendors in particular are not hindered from enjoying their material resources, including carts and stalls, so that they can practise their profession. States must also ensure that individuals or groups are not deprived of their access to adequate food, which includes access to food street vendors.

Third, the obligation to fulfil (facilitate) means that states “must proactively engage in activities intended to strengthen people’s access to and utilization of resources.” (Eide et al. 2001, p. 661) As far as the right to food is concerned, the obligation to fulfil (facilitate) is spelled out in the ICESCR: states shall

improve methods of production, conservation and distribution of food by mak- ing full use of technical and scientific knowledge, by disseminating knowledge of the principles of nutrition and by developing or reforming agrarian systems in such a way as to achieve the most efficient development and utilization of natural resources (UN 1966, Art. 11).

With regard to street vendors’ right to work and right to livelihood, the obligation to fulfil (facilitate) takes the form of positive measures that enable and assist them to enjoy these rights through, for example, capacity building programmes and research, education, and training programmes.

The Enjoyment of a Human Right by Natural Persons

The third element in the realisation of human rights is the actual enjoyment of a human right by natural persons. In the context of street vendors, the enjoyment (or exercise) of the right to work means, for instance, that they can work under just and favourable conditions as spelled out in Article 7 of the ICESCR. The enjoyment of the right to livelihood means that street vendors and their families have an adequate standard of living. Following Article 11 of the ICESCR, this includes adequate food, clothing, and housing. It also means that street vendors can carry on their business without fear of being forcefully evicted without prior notice and court hearing. The enjoyment of the right to food means that food is available, accessible, and adequate for all persons (OHCHR 2010, pp. 2–3). In India, food street vendors make food available to others by selling it from their stalls and carts. They also make food economically accessible, i.e. affordable, by keeping costs to a minimum, and physically accessible in all neighbourhoods. Last but not least, they (ideally) provide safe food that satisfies dietary needs.

The ILC Resolution and Conclusions concerning Decent Work and the Informal Economy, 2002

In June 2002, the ILC held a general discussion on decent work and the informal economy at its 90th Session in Geneva, Switzerland. As a result, it adopted the resolution concerning decent work and the informal economy. Its main component is the adoption of the conclusions concerning decent work and the informal economy, which are set out in a total of 37 paragraphs. The Governing Body of the International Labour Office was invited “to give due consideration to them in planning future action on reducing decent work deficits in the informal economy”, and the ILO Director-General was requested to take them into account when preparing the programme and budget for the 2004–2005 biennium and in allocating available resources during the 2002–2003 biennium (ILO 2002, p. 52).

In its conclusions, the ILC first linked the commitment of the ILO and its constituents to decent work to the informal economy. In this context, it defined decent work as a four-dimensional agenda, which includes the realisation of fundamental principles and rights at work, the creation of greater and better employment and income opportunities, the extension of social protection, and the promotion of social dialogue (ILO 2002, par. 2). The ILC definition of the informal economy corresponds to the ILO definition that I introduced in the first chapter of this master thesis. The ILC noted that “decent work deficits are most pronounced in the informal economy.” (ibid., par. 9) Therefore, it stated that “it is necessary to eliminate the negative aspects of informality” (ibid., par. 13). It further pointed out that livelihood and entrepreneurship opportunities must be preserved in this process and workers and economic units in the informal economy must be protected and incorporated into the “mainstream economy” (ibid., par. 13).

According to the ILC, decent work deficits and informality often have the same root cause, namely poor (national) governance (ibid., pars 14, 21). This means that the ILC considered inappropriate or misguided macroeconomic and social policies, unconducive legal and institutional frameworks, and the improper and ineffective implementation of policies and laws to be the growth drivers of the informal economy and related indecent work (ibid., par. 14). Besides, the ILC emphasised the need for policies and programmes that specifically address the informal economy. These “should be designed and implemented with the main objective of bringing workers or economic units in the informal economy into the mainstream, so that they are covered by the legal and institutional framework.” (ibid., par. 25) In addition, the ILC stressed the need for ILO member states to implement the 1998 ILO Declaration on Fundamental Principles and Rights at Work and its follow-up procedure and the core labour standards (ibid., par. 16). It also pointed out the need to support and implement the conclusions concerning social security adopted at the 89th Session of the ILC in 2001 (ibid., par. 29).

The ILC recognised that “[m]ost people enter the informal economy not by choice but out of a need to survive.” (ibid., par. 6) It observed that socio-economic factors, such as the lack of livelihood opportunities in rural areas, drive people into informal activities, particularly in urban areas (ibid., par. 19). The ILC pointed out that, as a result, the most vulnerable and marginalised groups are found in the informal economy (ibid., par. 20). Further, it found that “workers and economic units in the informal economy are generally characterized by poverty, leading to powerlessness, exclusion, and vulnerability” and that they often remain trapped in poverty due to the lack of protection, rights, and representation (ibid., pars 11, 4) However, the ILC also found that the informal economy “helps to meet the needs of poor consumers by providing accessible and low-priced goods and services.” (ILO 2002, par. 6) In addition, it underlined that workers and economic units in the informal economy can have “a large entrepreneurial potential” and “a reservoir of skills” (ibid., par. 7). Therefore, the ILC emphasised the need for a “programme to transfer jobs from the informal to the economic mainstream.” (ibid., par. 23)

In sum, the ILC linked decent work to formality and presented decent work deficits as a problem of informality. In the view of the ILC, informality, in turn, results from poor (national) governance. Accordingly, it placed the responsibility on countries to properly and effectively implement policies and programmes that specifically address the informal economy. These should aim to bring workers and economic units in the informal economy into ‘the mainstream’. However, while the ILC used the term ‘mainstream economy’ throughout the document, it did not define it anywhere. Yet, as the term was consistently used in contrast to the informal economy, it it can be assumed that it stands for the formal economy. In general, the ILC’s view of the informal economy as something that needs to be overcome is in contrast to my ‘critical’ modernisation theory, according to which informality is one expression of modernity (in India). I would counter the ILC that there is no need for “moving workers and economic units from the informal economy into the formal economy” (ibid., par. 37). Instead, countries should take measures to ensure that their citizens enjoy all socio-economic human rights in the informal economy as well.

The ILO Recommendation concerning the Transition from the Informal to the Formal Economy, 2015

At its 317th Session in Geneva in March 2013, the Governing Body of the ILO decided to place a standard-setting item on the agenda of the 103rd Session of the ILC in Geneva in June 2014 on facilitating transitions from the informal to the formal economy. This was done under the double discussion procedure, which means that this item was also dealt with at the 104th Session of the ILC in Geneva in June 2015. At its 103rd Session, the ILC adopted the resolution to place on the agenda of the next ordinary session of the Conference an item entitled “Facilitating transitions from the informal to the formal economy” (ILO 2014a). The 104th Session of the ILC followed up with the resolution concerning efforts to facilitate the transition from the informal to the formal economy (ILO 2015b). In addition, the Committee on the Transition from the Informal to the Formal Economy was established at this session (ILO n.d.[b]).

Also at its 104th Session, the ILC adopted the Recommendation No. 204 concerning the Transition from the Informal to the Formal Economy. As a non-binding guideline, the Recommendation “is the first international instrument dealing specifically with the informal economy” (ILO 2017, p. 1). It provides guidance to the ILO’s tripartite constituents (governments, workers’ and employers’ organisations) by presenting ways to “facilitate the transition of workers and economic units from the informal to the formal economy” (ILO 2015a, par. 1). In nine sections and a total of 42 paragraphs, the Recommendation set out a “rights-based approach to formalization.” (ILO 2017, p. 1) As a whole, it aimed to ensure “decent work for all” (ILO 2015a, p. 2). The Recommendation is thus directly linked to the 2002 ILC resolution and conclusions concerning decent work and the informal economy, which it also recalls in the preamble.

The Recommendation used the same definition of the informal economy as the 2002 ILC resolution and conclusions. In addition, it defined the term “economic units” in the informal economy. In the context of this master thesis, these are “units that are owned by individuals working on their own account, either alone or with the help of contributing family workers” (ibid., par. 3). The Recommendation applies to all workers and economic units in the informal economy (ibid., par. 4), whose “diversity of characteristics, circumstances and needs” is emphasised (ibid., par. 7). According to the ILO, the “diversity of the informal economy across member States” calls for different and multiple strategies to facilitate the transition to the formal economy (ibid., pars 6, 7). In this process, special attention should be paid “to those who are especially vulnerable to the most serious decent work deficits in the informal economy” (ibid., par. 7).

Not only the 2002 ILC resolution and conclusions, but also the 1998 ILO Declaration on Fundamental Principles and Rights at Work is central to the Recommendation. These fundamental principles and rights at work, which should be respected, promoted and realised, include “(a) freedom of association and the effective recognition of the right to collective bargaining; (b) the elimination of all forms of forced or compulsory labour; (c) the effective abolition of child labour; and (d) the elimination of discrimination in respect of employment and occupation.” (ibid., par. 16) At the 110th Session of the ILC in Geneva in 2022, a fifth obligation or commitment was added to the Declaration, namely “(e) a safe and healthy working environment.” In its Recommendation, the ILO stated that respect for these fundamental principles and rights at work, in law and practice, was necessary for the fulfilment of decent work for all (ibid., par. 7). Thus, the 2002 ILC resolution and conclusions are linked to the 1998 ILO Declaration through the Recommendation.

On the whole, the Recommendation placed the responsibility for the transition from the informal to the formal economy on ILO member states. First of all, ILO member states should properly assess and diagnose “factors, characteristics, causes, and circumstances of informality in the national context” (ILO 2015a, par. 8). This should be done so that “laws and regulations, policies and other measures aiming to facilitate the transition to the formal economy” can be designed and implemented in an informed manner (ibid., par. 8). Second, national laws and regulations or other measures should be adopted, reviewed, and enforced by ILO member states “to ensure appropriate coverage and protection of all categories of workers and economic units.” (ibid., par. 9) Third, an integrated policy framework to facilitate the formalisation of the informal economy should be included in national development strategies or plans and in poverty reduction strategies and budgets (ibid., par. 10). Fourth, this integrated policy framework should take into account all three levels of government (e.g. federal, state, and local) and cooperation between relevant bodies and authorities (ibid., par. 12). Last but not least, opportunities of workers and economic units for income security should be safeguarded by ILO member states in the transition to the formal economy (ibid., par. 13).

Altogether, the Recommendation was an explicit call to ILO member states to advance the formalisation of the informal economy. This made it fundamentally different from the 2002 resolution and conclusions, which only sought to eliminate the negative aspects of informality and eventually bring workers and economic units in the informal economy into ‘the mainstream’. The title and the wording of the Recommendation were thus revolutionary for the ILO’s approach to the informal economy. Apart from that, the Recommendation also took up large parts of the 2002 resolution and conclusions. It complemented, however, the strong focus on decent work with a rights-based approach to formalisation. This is to effectively promote and protect the human rights of all those operating in the informal economy (ibid., par. 7). Thus, the ILO concluded by stating that “[n]othing in this Recommendation should be construed as reducing the protections afforded to those in the informal economy by other instruments of the International Labour Organization.” (ibid., par. 41)

The National Policy for Urban Street Vendors, 2004

Very few countries have developed a national policy that addresses urban street vendors, but one of them is India. In 2004, the MUEPA proposed the National Policy for Urban Street Vendors, which was adopted by the GOI in the same year. The genesis of the National Policy can be traced back to the inaugural meeting of the International Alliance of Street Vendors in Bellagio, Italy, in November 1995, where the Bellagio International Declaration of Street Vendors was signed by representatives at that meeting. As a result, the National Association of Street Vendors of India (NASVI) was launched in September 1998 and registered in 2003 under the Indian Societies Registration Act, 1860. Already in 2001, NASVI published a comprehensive study conducted by the sociologist Sharit K. Bhowmik on urban street vendors in seven cities across India (WIEGO 2011, pp. 1, 2). ^[9]

In the conclusion of the study, Bhowmik (2001) emphasised that “places [like hospitals, parks, markets, bus and rail terminuses etc.] usually develop as natural markets for hawkers”, and that “[o]ne forgets that hawkers selling their wares at the areas that become natural markets are in fact providing essential services to the people at low costs.” In May 2001, NASVI presented the findings of the study to the Ministry of Urban Development of the GOI. Three months later, in August 2001, the GOI formed a National Task Force on Street Vendors to come up with a national policy. NASVI and the Self-Employed Women’s Association (SEWA) were invited by the GOI to be members of the National Task Force and its Drafting Committee (WIEGO 2011, p. 3). This step was consistent with the 1995 Bellagio Declaration, which called for “appropriate, participative, non-formal mechanisms with representation by street vendors and hawkers, NGOs,” and others (IASV 1995). Less than two and a half years later, the national policy was finalised, and on 20 January 2004, the GOI approved the National Policy for Urban Street Vendors.

Divided into 11 sections on 13 pages (plus annexure), the National Policy tried to “[p]rovide and promote a supportive environment for earning livelihoods” to urban street vendors and to “ensure absence of congestion and maintenance of hygiene in public spaces and streets.” (MUEPA 2004, p. 2) In addition to this overarching objective, the National Policy had nine basic objectives: to give legal status to urban street vendors through appropriate laws and legitimate hawking zones; to provide facilities for appropriate use of identified space, which includes the creation of hawking zones in urban development plans; to move to nominal fee-based regulation of access to public spaces; to treat street vendors “as an integral and legitimate part of the urban distribution system”; to promote self-compliance among street vendors; to promote organisations of street vendors to facilitate their empowerment; to set up participatory mechanisms of representation “for orderly conduct of urban vending activities”; to rehabilitate child vendors; and to facilitate and promote social security and access to credit for street vendors (ibid., p. 3).

Similar to Bhowmik in his 2001 study, the MUEPA also highlighted the formation of natural markets in its National Policy. It called for city- or town-specific demarcations of vending zones that take into account the patterns of demand for street vendors’ goods or services. City authorities should be able to establish not only vendors’ markets but also no-vending zones through a participatory process involving the local TVC. ^[10] The TVC should include the municipal authority, the traffic police and the local police, the public land owning authority, associations, representatives of street vendors’ associations, and representatives of the lead nationalised bank or commercial bank. The representatives of street vendors’ associations should preferably constitute at least 25 per cent to 40 per cent of the total number of members of the TVC, and at least one-third of them should be women. The TVC should ensure that its provisions are pragmatic, consistent with the formation of natural markets, sufficient for the existing demand for street vendors’ goods and services, and increase in line with anticipated population growth (ibid., pp. 4, 5).

Furthermore, the MUEPA pointed out the inadequacies of the licencing system, which has given rise to an “elaborate regime of rent seeking” (MUEPA 2004, p. 6). First, the numerical limitation of licences led to rents being derived from the issuance of licences. Second, the presence of unlicenced street vendors resulted in rent extraction by local authorities who allow them to operate without licences. To prevent rent seeking, the MUEPA called for a system of registration of street vendors and a non-discretionary regulation of access to public spaces. The power to register should be vested in the TVCs. All street vendors should be registered at a nominal fee, and all registered street vendors should be charged a monthly fee for access to various services. There should preferably be no numerical restrictions or quotas and no prior residential requirements of any kind, and identity cards should be issued to the street vendors. The registration should be renewed every three years (ibid., pp. 6, 7).

According to the MUEPA, no street vendor should be forcefully evicted, and street vendors should be relocated with adequate rehabilitation only where the land is needed for a “public purpose of urgent need” (ibid., p. 8). Where relocation is absolutely necessary, the street vendor concerned should be given at least 30 days’ notice. The National Policy also provides for amendments to the Indian Penal Code, 1860 (IPC), and the Police Act, 1861. In particular, Section 283 of the IPC, which regulates danger or obstruction in public way or line of navigation, and Section 34 of the Police Act, which regulates punishment for certain offences on roads, etc., should be amended by the GOI and all states so that the two provisions do not result in the physical eviction of even licenced vendors. The amendment should also resolve the contradiction between a ‘legal’ licenced vendor and an ‘illegal’ obstruction, which is created by the two provisions by adding a rider to them stating that street vendors are exempt from the two provisions (ibid., p. 9).

Another section in the National Policy is dedicated to self-regulation. This is the only section that deals specifically with food street vending. (Food) street vendors should practice self-regulation, especially with respect to hygiene and quality control, particularly in “sensitive areas” where there is considerable exposure to children (ibid., p. 10). More general aspects of self-regulation are cleanliness and scale of operation; street vendors should take responsibility for the cleanliness of the environment and adhere to quantitative norms for the number of street vendors in a given area. Overall, self-regulation should complement monitoring by external authorities, but the MUEPA also noted that “the practice of ‘health inspector’ may not necessarily be suitable or productive.” (ibid., p. 10)

As the National Policy was conceived by the MUEPA as a major initiative for urban poverty alleviation, the authors also addressed street vendors’ access to credit and insurance. Street vendors’ associations should be assisted by non-governmental organisations (NGOs) in organising self-help groups (SHGs) of street vendors, and banks should be encouraged to extend credit to these SHGs. The MUEPA also called for special insurance schemes for street vendors offered by banks or SHGs. Beyond that, street vendors should be provided with training to upgrade their technical and business skills so that they can increase their income and look for alternatives to street vending (MUEPA 2004, pp. 10–12). In sum, in its National Policy, the MUEPA recognised not only the contribution of street vendors to India’s urban societies but also that it is the duty of the state to protect the right of street vendors to earn their livelihood.

The National Policy on Urban Street Vendors, 2009

In September 2004, eight months after the approval of the National Policy for Urban Street Vendors, the GOI set up a National Commission for Enterprises in the Unorganised Sector (NCEUS), which was mandated by the Prime Minister’s Office to review the new National Policy. In May 2006, the NCEUS issued a report drawing attention to the special role of TVCs and offering recommendations for revising the National Policy. About three years after the 2006 report, the Ministry of Housing and Urban Poverty Alleviation (MHUPA) of the GOI published a revised policy, and on 23 February 2009, the Union Cabinet of the GOI approved the National Policy on Urban Street Vendors (WIEGO 2011, p. 4). On the same day, the Union Cabinet of the GOI also approved the Model Street Vendors (Protection of Livelihood and Regulation of Street Vending) Bill, 2009, which formed the basis for a legislative framework that was already called for by the first National Policy.

The revised National Policy was divided into nine sections on 19 pages. Similar to its predecessor, the revised National Policy tried to resolve the livelihood–congestion trade-off by providing for and promoting “a supportive environment for the vast mass of urban street vendors to carry out their vocation while at the same time ensuring that their vending activities do not lead to overcrowding and unsanitary conditions in public spaces and streets.” (MHUPA 2009, p. 5) In addition to this overarching objective, the revised National Policy had seven specific objectives: to give legal status to urban street vendors; to provide civic facilities; to implement transparent regulations; to promote organisations of street vendors; to set up participatory processes; to promote self-regulation; and to offer promotional measures. The two basic objectives of treating street vendors “as an integral and legitimate part of the urban distribution system” and of rehabilitating child vendors were thus deleted from the revised National Policy (MUEPA 2004, p. 3).

Furthermore, the revised National Policy had seven key elements: spatial planning norms should include what Bhowmik (2001) has called “natural markets” in all types of development plans; the demarcation of vending zones (restriction-free, restricted or no-vending zones) should be city- or town-specific, and the municipal authorities should allocate sufficient space for temporary vendors’ markets; quantitative space norms should follow the principle of ‘natural markets’, especially when maximum holding capacities are determined; the provision of (basic) civic facilities, such as public toilets or parking areas, should be the responsibility of the municipal authorities; for the organisation and participative processes, TVCs should be established to perform various functions, like registering street vendors and ensuring the issuance of identity cards; the collection of revenue from street vendors through TVCs should fall under the jurisdiction of the municipal authorities; and, last but not least, there should be overall confidence in the self-management and regulation of street vendors (MHUPA 2009, pp. 7–13).

Another section in the revised National Policy was dedicated to the eviction and relocation of street vendors and to the confiscation of their goods. According to the MHUPA, the eviction or relocation process should involve three steps: first, the street vendors should be informed or warned by way of notice; second, if the space is not cleared within the notified time, a fine should be imposed; third, if the space is not cleared even after the notice and imposition of a fine, physical eviction may be resorted to. If the authorities come to the conclusion that street vendors need to be relocated, adequate compensation or reservation in allotment of new vending site should be provided to the registered street vendors. With regard to the confiscation of their goods, the revised National Policy stated that this “should happen only as a last resort rather than routinely” and that the street vendors should be entitled to get their goods back within a reasonable time on payment of a prescribed fee determined by the relevant TVC (ibid., p. 14).

Lastly, a wide range of promotional measures were included in the revised National Policy: the GOI, state governments and municipal authorities should provide financial assistance to promote public health and hygiene among street vendors; state governments and the municipal authorities should take special steps to make street vendors and their families eligible for preventive and curative health care programmes; street vendors should be provided with vocational education and training and entrepreneurial development skills; street vendors should be assisted in obtaining credit and insurance through SHGs and street vendors’ associations or micro-insurance and other agencies; efforts of the GOI to extend social security cover to the unorganised sector should be supplemented by efforts of state governments, municipal authorities and street vendors’ associations to facilitate protective social security for street vendors; stationary street vendors should be allowed space or stalls on licence basis for an initial period of 10 years; state governments and municipal authorities should take measures to rehabilitate child vendors; TVCs should take steps to facilitate the formation and smooth functioning of street vendors’ associations; and the GOI should enact legislation for the promotion of livelihoods of the workers engaged in the unorganised sector in general and of street vendors in particular (MHUPA 2009, pp. 14–17).

The Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014

The next step towards a legislative framework for urban street vending was taken on 17 August 2012, when the Union Cabinet of the GOI approved the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Bill, 2012, which was based on the 2009 Model Bill. The 2012 Bill was introduced in the Lok Sabha (the lower house of India’s bicameral Parliament) on 6 September 2012. Exactly one year later, on 6 September 2013, the Lok Sabha passed the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Bill, 2013, and on 19 February 2014, the Rajya Sabha (the upper house of India’s bicameral Parliament) passed the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Bill, 2014 (MHUPA 2014). The 2014 Bill received the assent of the President of India on 4 March 2014 (GOI 2014, p. 1). On the following day, on 5 March 2014, the Ministry of Law and Justice of the GOI published the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014, in the Gazette of India. The Act came into force on 1 March 2014.

Divided into 10 chapters and a total of 39 sections (plus two schedules), the Act aims “to protect the rights of urban street vendors and to regulate street vending activities” (ibid., Sec. 1). Following the first preliminary chapter, which contains the short title, the extent, the commencement, and the provisions as well as the definitions of the Act, the second chapter deals with the regulation of street vending. First, it lays down that the TVCs should conduct surveys of all existing street vendors, and subsequent surveys should be carried out at least once in every five years. All existing street vendors identified in the surveys should be accommodated in vending zones, but they are subject to a norm conforming to 2.5 per cent of the population of the ward or zone or town or city, which means a de facto ceiling on licences. Moreover, no street vendors should be evicted or relocated until the surveys have been completed and the certificates of vending are issued to all street vendors (ibid., Sec. 3). A prerequisite for the issuance of certificates of vending is that the street vendors are at least 14 years of age (GOI 2014, Sec. 4). Other conditions include that the street vendors have no other means of livelihood (ibid., Sec. 5).

For the certificate of vending, there should be at least two categories: a stationary vendor, a mobile vendor, and any other category as may be specified in schemes for street vendors framed by the appropriate governments. According to the Act, every street vendor who has been issued a certificate of vending should also be issued identity cards (ibid., Sec. 6). The criteria to be followed by the TVCs for issuing certificates of vending to street vendors should be specified in the schemes for street vendors (ibid., Sec. 7). The schemes should also specify vending fees to be paid by all street vendors with a certificate of vending and the validity and renewal of certificates of vending (ibid., Secs 8, 9). Finally, the second chapter regulates the cancellation or suspension of certificates of vending (ibid., Secs 10, 11).

The third chapter deals with the rights and obligations of street vendors. More specifically, the Act gives every street vendor “the right to carry on the business of street vending activities” (ibid., Sec. 12). However, this must be done in accordance with the terms and conditions mentioned in the certificate of vending. Moreover, the Act gives every registered street vendor the right for a new site or area in case of relocation (ibid., Sec. 13). It also imposes a duty on street vendors to remove their goods and wares at the end of the time-sharing period allowed to them if they occupy space on a time sharing basis (ibid., Sec. 14). In addition, every street vendor should maintain cleanliness and public hygiene in the vending zones and the adjoining areas and civic amenities and public property in the vending zone in good condition (ibid., Secs 15, 16). Last but not least, the Act requires every street vendor to pay periodic maintenance charges for the civic amenities and facilities provided in the vending zones (ibid., Sec. 17).

Chapter 4 deals with the relocation and eviction of street vendors. Together with the TVC, the local authority can declare a zone or a part of it to be a no-vending zone for any public purpose and relocate the street vendors in that area. Street vendors without a valid certificate of vending should be evicted. In any case, street vendors should be given 30 days’ notice for the relocation or eviction (ibid., Sec. 18). The chapter also regulates the seizure and reclaiming of goods of a street vendor who has been evicted by the local authority (ibid., Sec. 19). Chapter 5 then provides for a dispute redressal mechanism for the redressal of grievances or resolution of disputes of street vendors (ibid., Sec. 20). Chapter 6 provides for a plan for street vending: together with the TVC, every local authority should, once in every five years, prepare a plan to promote the vocation of street vendors (GOI 2014, Sec. 21).

The seventh chapter covers the TVC. In general, the appropriate government can provide for the constitution of more than one TVC, or a TVC for each zone or ward, in each local authority. Each TVC should consist of a Municipal Commissioner or Chief Executive Officer as the Chairperson and other members representing the local authority, medical officer of the local authority, the planning authority, traffic police, police, associations of street vendors, market associations, traders associations, NGOs, community based organisations, resident welfare associations, banks, etc. The number of members representing the NGOs and the community based organisations should not be less than 10 per cent, and the number of members representing the street vendors should not be less than 40 per cent. In addition, one-third of the members representing the street vendors should be women, and due representation should be given to Scheduled Castes, the Schedules Tribes, Other Backward Classes, minorities, and persons with disabilities (ibid., Sec. 22).

Chapter 8 then addresses the prevention of harassment of street vendors by the police and other authorities: “no street vendor who carries on the street vending activities in accordance with the terms and conditions of his certificate of vending shall be prevented from exercising such rights by any person or police or any other authority” (ibid., Sec. 27). Chapter 9 contains penal provisions, and Chapter 10 deals with miscellaneous matters. For example, the appropriate government, together with the TVC, local authority, planning authority, and street vendors’ associations or unions, can undertake promotional measures to provide credit, insurance, and other welfare schemes of social security for the street vendors (ibid., Sec. 31). Other matters include, research, training, and awareness or the schemes for street vendors that should be framed by the appropriate governments within six months from the date of commencement of the Act (ibid., Secs 32, 38).

In August 2021, the Standing Committee on Urban Development submitted its report on the implementation of the Act. The Committee noted that many provisions of the Act are yet to be implemented by several states and union territories, that identity cards and vending certificates have not been issued to all street vendors, and that TVCs have not been constituted in several states. Furthermore, it criticised that typically 60 per cent of a TVC’s membership is made up of official representatives nominated by the state governments, which “may override genuine concerns raised by vendor representatives.” (Gupta 2021) The Committee then noted that since the enactment of the Act, only 31 per cent of the towns in states which have notified a scheme for street vendors under the Act have framed plans for street vending, nine states have not made any plans for street vending, and certain states have notified vending zones without formulating the plans for street vending. The Committee also noted that many cities are being developed as smart cities or are formulating master plans without consideration of the street vendors. Last but not least, it noted that only nine states have constituted Grievance Redressal Committees (Gupta 2021).

The Food Safety and Standards Act, 2006

The Food Safety and Standards Bill, 2005, was introduced in the Lok Sabha by the Ministry of Food Processing Industries on 25 August 2005 and referred to the Standing Committee on Agriculture on 30 August 2005. On 21 February 2006, the Standing Committee presented a report on the Bill to the Lok Sabha. On 26 July 2006, the Bill was passed by the Lok Sabha, and on 2 August 2006, by the Rajya Sabha (PRS Legislative Research n.d.). The Food Safety and Standards Act, 2006, received the assent of the President of India on 23 August 2006 and was published for general information by the Ministry of Law and Justice of the GOI on the following day. The Act consolidated the laws relating to food and established the Food Safety and Standards Authority of India (FSSAI) “for laying down science based standards for articles of food and to regulate their manufacture, storage, distribution, sale and import, to ensure availability of safe and wholesome food for human consumption and for matters connected therewith or incidental thereto.” (GOI 2006, p. 1)

The Act is divided into 12 chapters and a total of 101 sections (plus two schedules). Following the first preliminary chapter, the second chapter deals with the FSSAI. The third chapter addresses general principles of food safety and the fourth chapter general provisions as to articles of food. Chapter 5 lays down provisions relating to import. Chapter 6 then deals with special responsibilities as to food safety. The seventh chapter covers the enforcement of the Act and the eighth chapter the analysis of food. Chapter 9 deals with offences and penalties, Chapter 10 with the adjudication and Food Safety Appellate Tribunal, and Chapter 11 with finance, accounts, audit, and reports. Finally, the twelfth chapter is about miscellaneous matters.

Central to the Act is the establishment of the FSSAI, whose duty is “to regulate and monitor the manufacture, processing, distribution, sale and import of food so as to ensure safe and wholesome food.” (ibid., Sec. 16) It thus has a direct impact on the work of food street vendors, who manufacture, process, and distribute food and sell it to the public. The Act requires them to ensure that the articles of food within the businesses under their control “satisfy the requirements of this Act and the rules and regulations made thereunder at all stages of production, processing, import, distribution and sale” (GOI 2006, Sec. 26). It holds food street vendors liable for articles of food which are handled or kept in unhygienic conditions, for instance, or received by them with the knowledge of being unsafe (ibid., Sec. 27). Moreover, the Act requires all food street vendors to register themselves with the relevant authority (ibid., Sec. 31).

The Act also provides for penalties for selling food not of the nature or substance or quality demanded. Accordingly, food street vendors are liable to a penalty of up to INR 25 thousand ^[11] (ibid., Sec. 50). In addition, the Act provides for penalties for sub-standard food: food street vendors who manufacture, sell or distribute articles of food for human consumption which are sub-standard are liable to a penalty of up to INR 500 thousand ^[12] (ibid., Sec. 51). Also relevant to food street vendors are penalties for unhygienic or unsanitary processing or manufacturing of food, which can be as high as INR 100 thousand ^[13] (ibid., Sec. 56). Other penalties exist for misbranded food, misleading advertisements, food containing extraneous matter, and unsafe food, among others. Furthermore, the Commissioner of Food Safety can empower the Designated Officer to accept payment of a sum of money from food street vendors against whom a reasonable belief exists that they have committed an offence or contravention against the Act (ibid., Sec. 69). In sum, the fines can be debilitating for food street vendors and at the same time too small to be an effective deterrent for large companies (Madhavan et al. 2006, p. 4).

Following the criticism of Madhavan et al. (2006), “[t]here could be a case for a separate regulation for the unorganised sector. Given that the unorganised sector includes a large number of street food vendors, hawkers, temporary stall holders etc., application of the same law as for the large scale industries may be unrealistic, especially in the short term.” (ibid., p. 4) They also pointed out the risk of corruption arising from the “requirement of registration and powers given to local level officials to penalise infringement of required standards” (ibid., p. 4). Moreover, the authors found that food street vendors in India are usually unaware of food regulations and have no training in “food-related matters” (ibid., p. 4). They also generally lack support services such as water supply of adequate quality and waste disposal systems. Providing such facilities for food street vendors could ensure that they are able to maintain acceptable standards of hygiene and cleanliness (Madhavan et al. 2006, p. 4).

Informal Food Street Vending

The relationship between informal food street vending and the right to work in India is ambivalent: on the one hand, the informal setting of food street vending offers food street vendors in India the opportunity to pursue their business model even with minimal (socio-economic) resources. On the other hand, the informal setting poses a threat to their business model, as food street vendors without a licence (or ‘certificate of vending’) can be evicted at any time. In this subsection, I focus on the relationship between informal food street vending and the right to work. First, I explain how the informal setting of food street vending facilitates the enjoyment of the right to work. Second, I examine how the informal setting makes the work of food street vendors more difficult.

According to my ‘critical’ modernisation theory, the informal economy improves human rights outcomes. In the context of this subsection, this means that informality has a positive impact on the right to work, in the sense that the informal economy serves as a catch basin for those “who cannot find jobs in the formal economy and who are therefore pushed to take any work or create their own employment through small, even marginal, economic activities.” (ILO n.d.[c], p. 6) ^[14] Against the background that the GOI does not guarantee the right to work in urban areas in the same way as it does, for example, with the MGNREGA in rural areas, the informal economy offers opportunities for work to many people who would otherwise remain unemployed.

However, the argument that the right to work can be realised through informal food street vending because informal food street vending offers opportunities for work is in some ways deficient. I indicated in Chapter 3 of this master thesis that the right to work in the UDHR and ICESCR has another dimension: it is also closely connected to just and favourable conditions of work. As already pointed out in the introduction of this master thesis, work in the informal economy “is often characterized by small or undefined work places, unsafe and unhealthy working conditions, low levels of skills and productivity, low or irregular incomes, long working hours and lack of access to information, markets, finance, training and technology.” (ILO n.d.[a]) This also applies to informal food street vending, which is part of the informal economy. From this perspective, the second dimension of the right to work cannot be fully realised through informal food street vending.

Given the predominantly informal setting of food street vending in India, unlicenced food street vendors work in constant fear of eviction. The issue of forced evictions of unlicenced food street vendors is of particular importance because these evictions are direct violations of both dimensions of the right to work. First, in the case of eviction, informal food street vendors are prevented from carrying out their freely chosen and accepted work. Second, the constant fear of eviction is contrary to just and favourable conditions of work. It is important to emphasise, however, that forced evictions and related violations of the right to work are the result of decisions made by local authorities. They are not a natural part of the informal setting of food street vending in India. Rather, they echo “neoliberal-sounding development narratives” in which informal food street vendors are a (double) public nuisance (Anjaria 2016, p. 18): “hawkers not only obstruct pedestrians; they also obstruct the flourishing of political modernity itself.” (ibid., p. 3).

Formalised Food Street Vending

The formalisation of food street vending in India has multiple implications for the right to work in that country. One implication is that formalised food street vending provides safer and more secure workplaces to licenced food street vendors, as food street vendors with a licence cannot be arbitrarily evicted. Another implication is that formalised food street vending imposes restrictions on food street vendors, for example through no-vending zones. In addition, the ceiling on licences means that not every food street vendor can become part of the formalised system of food street vending. In this subsection, I focus on the relationship between formalised food street vending and the right to work. First, I look at how the formalised setting of food street vending facilitates the enjoyment of the right to work. Second, I explore how the formalised setting complicates the everyday working lives of food street vendors and creates tensions due to a system of inclusion and exclusion.

As indicated in the previous paragraph, formalised food street vending facilitates the enjoyment of the right to work in the sense that it provides safer and more secure workplaces to licenced food street vendors. First, formalised food street vending is safer because food street vendors with a licence benefit from, for example, civic amenities and facilities provided in the vending zones. Second, formalised food street vending is more secure because food street vendors with a licence can only be relocated or evicted from a no-vending zone for a public purpose after a 30-day notice period. It is also safer and more secure because food street vendors with a licence are less likely to be harassed by the police and other authorities. Moreover, licenced food street vendors have better access to credit, insurance, and other welfare schemes for social security.

Formalised food street vending also goes hand in hand with restrictions on food street vendors. The most important restrictions are no-vending zones, which can be declared by TVCs for any public purpose. This means that while (food) street vendors have “the right to carry on the business of street vending activities” (GOI 2014, Sec. 12), they cannot carry on this business in every location. I argue that the relocation or eviction of food street vendors from a no-vending zone violates the right to work if the relocation site is far from the original vending site. This is due to the fact that long commutes can be a barrier to work because they are both time-consuming and costly. Another restriction on food street vendors is the judicially imposed ceiling on licences, which is 2.5 per cent of the population of the ward or zone or town or city. According to the 2021 report of the Standing Committee on Urban Development, this ceiling is “grossly inadequate” in large and heavily populated cities like Mumbai or Delhi (Pal 2021, p. 52).

In addition, the ceiling on licences creates a system of inclusion and exclusion. In cities like Mumbai or Delhi, where the number of street vendors exceeds 2.5 per cent of the population of the ward or zone or town or city, many (food) street vendors cannot get a licence. This drives a lucrative black market for licences (te Lintelo 2017), which reinforces the injustices experienced by (food) street vendors. The ceiling on licences also means that unlicenced food street vendors are likely to be forcibly evicted. These evictions are direct violations of the right to work, as they prevent food street vendors from carrying on their business. In sum, formalised food street vending means that food street vendors cannot carry on their business anywhere without a licence.

Interim Conclusion

Altogether, food street vending in India has an interesting relationship with the right to work. In its informal manifestation, food street vending can realise the first dimension of the right to work: “the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts” (UN 1966, Art. 6). At the same time, it violates the second dimension of the right to work: “the right of everyone to the enjoyment of just and favourable conditions of work” (ibid., Art. 7). In its formal manifestation, food street vending can realise only the second dimension of the right to work, but it violates the first dimension of the right to work. This means that both informal and formalised food street vending have their pros and cons, but the violation of the first dimension can be considered more serious, as it is at the core of the right to work. Therefore, informal food street vending is more in line with the right to work than formalised food street vending.

Informal Food Street Vending

Informal food street vending in India has multiple links to the right to livelihood in the country. Most importantly, it allows food street vendors to achieve a standard of living adequate for the health and well-being of themselves and their families. Ideally, this standard of living includes adequate food, clothing, and housing and the continuous improvement of living conditions. Moreover, informal food street vending is linked to the fundamental right “to practise any profession, or to carry on any occupation, trade or business.” (GOI 2020, Art. 19) It is also linked to the right to life and personal liberty of food street vendors. This is particularly interesting in light of the fact that the Indian state “shall, in particular, direct its policy towards securing that the citizens, men and women equally, have the right to an adequate means of livelihood” (ibid., Art. 39). In this subsection, I focus on the links between informal food street vending and the right to livelihood. First, I explain how the informal setting of food street vending facilitates the enjoyment of the right to livelihood. Second, I examine how the informal setting may cause livelihood difficulties for food street vendors.

The links between informal food street vending and the right to livelihood overlap with the links between informal food street vending and the right to work. As already stated in Subsection 5.1.1 of this master thesis, I use my ‘critical’ modernisation theory to argue that the informal economy improves human rights outcomes, which means that informality has a positive impact on the right to livelihood, among others. The same argument I made in Subsection 5.1.1 also applies here: the informal economy serves as a catch basin for those who cannot find jobs in the formal economy. As one of the most important economic activities of the informal economy, informal food street vending allows many people to participate in economic life and to achieve a standard of living adequate for the health and well-being of themselves and their families. The income that food street vendors generate is ideally enough for adequate food, clothing, and housing and the continuous improvement of living conditions.

The fundamental right “to practise any profession, or to carry on any occupation, trade or business” is linked to informal food street vending because, at first glance, it gives all citizens the right to carry on the business of (food) street vending activities, regardless of whether it is in the informal or formal economy (ibid., Art. 19). However, Section 283 of the IPC states: “[w]hoever, by doing any act, or by omitting to take order with any property in his possession or under his charge, causes danger, obstruction or injury to any person in any public way or public line of navigation, shall be punished with fine which may extend to two hundred rupees.” ^[15] (GOI 1860, Sec. 283) Therefore, the right to engage in informal activities is restricted. This applies in particular to (food) street vending, which takes place in public spaces and is thus within the scope of Section 283 of the IPC (Patel 2019, p. 5162). This means that the informal setting of food street vending puts the livelihood of food street vendors at risk.

Nevertheless, informal food street vending is part of the right to life (and personal liberty) of food street vendors. This is because the right to life implies the right to livelihood, as explained in Subsection 3.1.2 of this master thesis. Food street vendors in particular cannot be deprived of their means of livelihood to the point of abrogation, as this would deprive them of their right to life. Thus, informal food street vendors also have the right to carry on their business. The reality, however, is different because food street vendors without a licence can be forcefully evicted at any time without prior notice and court hearing. This de facto deprives them of their means of livelihood and therefore of their right to life. Hence, in practice, informal food street vending does not facilitate the right to livelihood. But again, forced evictions are not a natural part of informal food street vending, as they are the result of decisions made by local authorities.

Formalised Food Street Vending

The relationship between formalised food street vending in India and the right to livelihood is similar to the relationship between formalised food street vending in India and the right to work. This is because work and livelihoods are “interrelated features of individual lives”, with work being an important part of livelihoods (Goddard 2017, p. 12). Thus, the arguments I can make here are similar to the arguments I made in Subsection 5.1.2: formalised food street vending, while providing safer and more secure workplaces to licenced food street vendors, also imposes restrictions on them and creates a system of inclusion and exclusion that further marginalises unlicenced food street vendors. In this subsection, I focus on the relationship between formalised food street vending and the right to livelihood. First, I look at how the formalised setting of food street vending facilitates the enjoyment of the right to livelihood. Second, I explore how the formalised setting makes it more difficult for food street vendors to make a living.

The formalised setting of food street vending facilitates the enjoyment of the right to livelihood not only by providing safer and more secure workplaces to licenced food street vendors but also by giving them better access to credit, insurance, and other welfare schemes for social security. Social protection systems like these play an indispensable role in securing livelihoods. The main German development agency Deutsche Gesellschaft f¨ur Internationale Zusammenarbeit (GIZ) GmbH stated that a lack of social protection systems means that the development opportunities of those in the informal economy, for example, “are limited due to the fact that they have to keep savings readily available and can only make limited investments to secure their livelihoods.” (GIZ n.d.) Therefore, better access to credit, insurance, and other welfare schemes for social security may improve the standard of living of licenced food street vendors.

At the same time, formalised food street vending has a negative impact on the fundamental right “to practise any profession, or to carry on any occupation, trade or business.” (GOI 2020, Art. 19) This is due to the system of inclusion and exclusion created by the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014, which I described in Subsection 5.1.2 of this master thesis. The system of inclusion and exclusion caused by the ceiling on licences violates not only the right to work of unlicenced food street vendors but also the right to livelihood, as they are hindered from practising their profession or carrying on their occupation, trade or business. This further marginalises food street vendors who cannot obtain a licence. Beyond that, it also violates their right to life (and personal liberty) because it deprives them of their means of livelihood to the point of abrogation.

Furthermore, it is the duty of the Indian state to formulate policies that secure that all its citizens have the right to an adequate means of livelihood. The Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014, should therefore protect the livelihoods of all (food) street vendors. However, the Act not only violates the right to livelihood of unlicenced food street vendors, as shown in the previous paragraph, but is also responsible for the existence of unlicenced food street vendors in the first place, as it imposes a ceiling on licences. Thus, the formalised setting of food street vending makes it more difficult for food street vendors without a licence to make a living.

Interim Conclusion

In sum, food street vending in both its informal and formal manifestations can realise the right to livelihood under the UDHR and ICESCR but not under the COI. Regarding the UDHR and ICESCR, informal food street vending facilitates participation in economic life while formalised food street vending provides licenced food street vendors with access to a social protection system. Regarding the fundamental right “to practise any profession, or to carry on any occupation, trade or business” in the COI, informal food street vending puts the livelihoods of all food street vendors at risk while formalised food street vending puts the livelihoods of unlicenced food street vendors at risk (GOI 2020, Art. 19). Informal food street vending also threatens the constitutional right to life (and personal liberty) of food street vendors, as it creates a setting in which forced evictions are a part of the daily life of food street vendors. Formalised food street vending threatens this constitutional right through the system of inclusion and exclusion that it creates. Finally, formalised food street vending does not comply with the duty of the Indian state to formulate policies that secure that all its citizens have the right to an adequate means of livelihood, as it imposes a ceiling on licences. Therefore, informal food street vending is marginally more in line with the right to livelihood than formalised food street vending.

Informal Food Street Vending

The connection between informal food street vending and the right to food in India is particularly noteworthy because, as the FSSAI put it, (informal) food street vending is not only “a source of earning for a very large number of unskilled people” but also “a major source of nutrition for the urban poor and lower middle class.” (FSSAI 2016, p. 2) Thus, informal food street vending has the potential to facilitate the right of everyone to a standard of living adequate for the health and well-being of themselves and of their family, which includes, in particular, (adequate) food, as enshrined in the UDHR and ICESCR. Moreover, it can also facilitate “the fundamental right of everyone to be free from hunger” embodied in the ICESCR (UN 1966, Art. 11). This is to be seen in the context that the Indian state “shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties” (GOI 2020, Art. 47). In this subsection, I focus on the connection between informal food street vending and the right to food. First, I explain how the informal setting of food street vending facilitates the enjoyment of the right to food. Second, I examine how the informal setting can be problematised, as it leads to health risks among street food consumers.

As mentioned in Subsection 3.2.3 of this master thesis, it is important to emphasise certain elements of the UN right to food: food must be (1.) available, (2.) accessible and (3.) adequate (OHCHR 2010, pp. 2–3). I argued that in India, informal food street vendors make adequate food available as well as (economically and physically) accessible. First, they make food available to others by selling it from their stalls and carts. This is of particular importance in neighbourhoods where food markets are rare and grocery shops are scarce. Second, they make food economically accessible, i.e. affordable, by keeping costs to a minimum, and they make it physically accessible in all neighbourhoods. In this context, “keeping costs to a minimum” means that food street vendors usually buy and sell unprocessed food in larger quantities at lower prices or sell home-grown vegetables or fruits directly from their stalls and carts. It can also mean that street food vendors sell freshly prepared ready-to-eat food without having to pay taxes or rent for a premises. The fact that food street vendors make food “physically accessible in all neighbourhoods” means that they make food “accessible to all, including to the physically vulnerable, such as children, the sick, persons with disabilities or the elderly, for whom it may be difficult to go out to get food.” (ibid., p. 3) Third, they (ideally) provide adequate food that is safe and satisfies dietary needs. In this context, “dietary needs” takes into account “the individual’s age, living conditions, health, occupation, sex, etc.” (OHCHR 2010, p. 3)

However, especially in the context of informal street food vending, unsafe street food poses a threat to consumers. In their study to asses food safety and hygiene practices among street food vendors in Delhi, Thakur et al. (2013) found the following:

Seventy two percent [of the vendors] were disposing garbage in open lid bins and 16% were throwing it on the road, only 3% of the vendors were using hand gloves and from rest only 2% were washing hands before and after handling raw or cooked food. Majority of respondents (72 %) had short clean nails and few (4 %) had open wounds present. Presence of flies/mosquitoes was observed in 45% of the vending sites. 19 % were washing utensils in open. (Thakur et al. 2013, p. 3531)

Moreover, in their hazard analysis of a street vendor’s operation in Pakistan, Bryan et al. (1992) showed that “the ingestion of these [street] foods must be considered a high risk of acquiring foodborne illness. The greatest concern is that of staphylococcal food poisoning” (Bryan et al. 1992, p. 713).

In the context of the right to food, it is a primary duty of the Indian state, as stipulated in the COI, not only to raise the nutrition and the standard of living of its people but also to promote public health. Thus, the widespread distribution of unsafe street food through informal street food vendors can be considered a violation of the right to food. In this master thesis, however, I look at food street vendors of which street food vendors are only a subset. The broader group of food street vendors also sells partially processed or unprocessed food, like vegetables or fruits, whose health risks are lower because cooking and handling food, as well as poor hygienic practices and holding and displaying food, make contamination and bacterial growth more likely (ibid.). Moreover, unsafe food is not a natural part of informal food street vending but rather an awareness issue. Thus, informal food street vending plays a significant role in facilitating the right to food in India, as food street vendors make adequate food available and accessible.

Formalised Food Street Vending

In the context of the right to food, the formalisation of food street vending in India has two prominent drivers: the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014, and the Food Safety and Standards Act, 2006. The objective of the 2014 Act is to regulate street vending activities in India, whereas the aim of the 2006 Act is to provide a single reference point for all issues concerning food safety and standards in the country. More specifically, the 2014 Act provides for bans on food street vending in certain areas (no-vending zones) and at certain times (restricted-vending zones), and the 2006 Act holds food street vendors liable for articles of food which are handled or kept in unhygienic conditions, for instance, or received by them with the knowledge of being unsafe. While the 2014 Act requires all street vendors to obtain a licence from the relevant TVC, the 2006 Act requires all food street vendors to register themselves with the relevant authority. In this subsection, I focus on the relationship between formalised food street vending and the right to food. First, I look at how the formalised setting of food street vending facilitates the enjoyment of the right to food. Second, I explore how the formalised setting can lead to problems in the food supply of the Indian society as a whole.

Ideally, the 2006 Act helps to facilitate the right to food, particularly with regard to food safety, by requiring food street vendors to ensure that the articles of food within the businesses under their control satisfy certain requirements and rules and regulations “at all stages of production, processing, import, distribution and sale” (GOI 2006, Sec. 26). However, in their survey among 200 street food vendors, Reddy et al. (2020) found that less than 35 per cent of the street food vendors were registered. Although the authors pointed out that it has a positive impact on the food safety standards of street food vendors if street food vendors are registered, operate in high-income localities and have a high level of education, they also found that general food safety practices such as the use of soap for washing hands and the wearing of aprons and gloves were generally not practised by any street food vendors (Reddy et al. 2020, p. 1213). Overall, the authors noted that only 50 per cent of the street food vendors knew about food safety standards and concluded that “India’s food safety standards are on a par with those of most developed countries, but […] their actual implementation by street-food vendors is not duly assured.” (ibid., p. 1201)

As already indicated above, the formalised setting of food street vending can also lead to problems in the food supply of the Indian society as a whole. This is due to the fact that the 2014 Act not only provides for bans on food street vending in certain areas and at certain times but also for a ceiling on licences: while all existing street vendors should be accommodated in vending zones, they are subject to a norm conforming to 2.5 per cent of the population of the ward or zone or town or city. Put simply, this means that vending zones have a holding capacity of 2.5 per cent of the population of the zone—even though the demand for (food) street vendors may be significantly higher. If we look at an example from Narang et al. (2019), my point becomes clearer. In a town with a population of 100 thousand, there are 10 vending zones available. Based on the norm mentioned above, a maximum of 2,500 existing vendors can be accommodated in these zones. However, if one of the vending zones has a relatively small capacity and can only accommodate up to 80 vendors, and there are 280 existing vendors, it will be necessary for the local authorities to relocate the remaining 200 vendors to nearby vending zones (Narang et al. 2019, p. 6). In practice, this could lead to a shortage of (food) street vendors in the zone, which would directly affect the first and second element of the UN right to food: the availability and accessibility of food.

Taken together, the positive effects of the Food Safety and Standards Act, 2006, and the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014, on the right to food in India are small. The 2006 Act does not really facilitate the right to food, particularly with regard to food safety, partly due to the often low income and poverty of food street vendors but also because food street vendors are not sufficiently informed about the 2006 Act (Reddy et al. 2020). This affects the adequacy of food, which is the third element of the UN right to food. Even the 2014 Act does not really facilitate the right to food, as it provides for bans on food street vending in certain areas and at certain times as well as for a ceiling on licences, which can lead to a shortage of (food) street vendors in certain zones. This affects the availability and accessibility of food, which are the first and second elements of the UN right to food. To reiterate, the formalised setting of food street vending can lead to problems in the food supply of the Indian society as a whole.

Interim Conclusion

In summary, informal food street vending in India facilitates the right to food in the country, while formalised food street vending hinders it. In the informal setting, the three elements of the UN right to food can be sufficiently realised, which also facilitates the fundamental right of everyone to be free from hunger. However, due to the absence of food security standards, the informal setting is susceptible to unsafe food. This is contrary to the primary duty of the Indian state to raise the level of nutrition and the standard of living of its people and improve public health. In the formalised setting, the three elements of the UN right to food cannot be sufficiently realised, which also hinders the fundamental right of everyone to be free from hunger. Moreover, the existing food security standards are not adequately implemented, which negates the theoretical benefits of formality. Therefore, informal food street vending is clearly more in line with the right to food than formalised food street vending.