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Livelihood

COVID-19 took the world by shock. What started as a small infection has spread across several countries, inflicting harm to millions of people and setting the global economy back by decades. As of September 2020, India adds close to 100,000 COVID-19 cases per day. Economists estimate the real Gross Domestic Product (GDP) growth to contract by at least 10.5% for 2021.

COVID-19 has made apparent the need for changes in the way the government regulates various sectors. Crises have frequently provided opportunities for reforms. The liberalisation of 1991, for instance, was motivated by a balance of payments crisis.

During the summer of 2020, we at Centre for Civil Society documented how some critically affected sectors are trying to adapt to the changing circumstances, but are fettered by the regulatory framework. We examined seven areas: health, education, labour, agriculture, technology enterprises, philanthropy and professional certification.

We used a common lens to examine the regulations in each of the areas of study and discovered that at the heart of it our regulations are not fit for purpose. In some areas, the regulatory framework is absent or muddled; in other areas overwrought. and in yet other areas, they are ambitious, but out of sync with state capacity. They are outmoded for the new reality across the board.

Our regulations across sectors favour incumbents over disruptors. The regulations create strong barriers to innovation and adaptability. For instance, e-pharmacies have been operating in a vacuum, absent clarity on their obligations and liabilities. This stasis is partly a result of the pressure campaigns from brick-and-mortar pharmacies.

Regulations are also susceptible to capture and monopoly. Professional certification requirements for lawyers do not recognise distance-learning. This has hurt the ability of law schools to use new modes of teaching. The Bar Council, in a bid to restrict entry and increase wage premiums, have made it hard to imagine new ways of bringing legal professionals into service.

The regulatory architecture often favours a one-size-fits-all approach. For example, where democratising education may allow non-traditional learners to prosper, the regulations encourage standardisation and uniformity. Options for school exit-certification make it hard to exercise choice and to experiment with what works for parents and their children.

Regulators in India also capitulate to public perceptions over empirical data, sometimes even making it hard to generate evidence critical for decision-making. The regulatory framework for seeds does not make it easy for technology developers to conduct field trials before making biosafety determinations. Even though farmers across the country are slowly being freed from the license-permit-subsidy raj, they remain hostage to an aversion to modern science.

A regulatory framework that is ambitious but fettered by State capacity constraints can do more harm than good. We have watched our neighbours take advantage of their periods of demographic dividend, we have remained a prisoner of overwrought rules on every aspect of employing workers. During COVID-19, many states have tried to quickly tinker with labour regulations to make them flexible enough to generate mass employment. Yet, as states try to break free, the Centre’s laws hold them back.

Contrastingly, where State capacity to regulate may be limited, the market has shown us new ways to set standards and enforce rules. Door-step delivery of food via aggregator platforms have brought us market-led regulation of hygiene and safety. Food aggregators were steps ahead of the country’s food regulator in setting standards and using technology to enforce those standards. They were able to quickly deploy systems to monitor standards, and build feedback loops for improving performance: something the food regulator has struggled to do.

Regulations that hamper innovation and create incentives for incumbents to stagnate, hurt the creative destruction process that is at the heart of generating growth and value. Through this compendium, we hope to make the case for first-principles thinking in writing the rules of the game. In each paper, we have tried to identify the challenges of the current regulations, and in some cases suggested models for reform.

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Government and society in India have historically viewed farming merely as a means of achieving food security for the country. Farmers are considered annadatas, instead of legitimate entrepreneurs engaged in the business of agriculture. The liberalisation of 1991 did not touch the agriculture sector.

Despite decades of policy interventions, a majority of Indian farmers have not seen their incomes rise, nor have they been able to increase farm productivity. Farmers with small or marginal holdings, who make up around two-thirds of all farmers, find themselves prey to indebtedness, a lack of choice in inputs, and underdeveloped warehousing and processing facilities. In each agricultural cycle, we witness a host of farmer agitations, leading to further band-aid solutions.

The Union and states provide a host of subsidies for agricultural inputs and offer high prices for outputs by procuring food grains at minimum support prices for multiple crops. Simultaneously, policymakers walk the tightrope of protecting consumers from high prices through inexpensive grains to over two-thirds of the Indian population.

These policies ignore that the distress in the sector largely results from farmers having little or no control over anything in agriculture except perhaps tilling the soil. The government interferes with decisions at every step of the production and sale process. Pulled together, the policy framework has destroyed the signalling role played by prices, and no one is better off for it.

The Finance Minister, in her first budget speech in July 2019, expanded the scope of ease of doing business to include rural enterprises. She also opined that “ease of doing business and ease of living both should apply to farmers too.” Unfortunately, the political and social discourse in India still does not see the farmer as an entrepreneur who takes risks, analyses the market and engages in the production, marketing and selling of agricultural produce.

Against this background, the playbook:

  • imagines agriculture as an enterprise, and casts agriculturists as “farmpreneurs”;
  • distils key learnings from richer studies and reports; and
  • outlines the full-spectrum of reforms needed in the sector.

Much of the policy approach has been hostage to the myth of the “first transaction”, a notion as archaic as it is dangerous. The playbook’s approach has been to sidestep this notion and to treat the sector as any other. Farmers are not isolated actors, but entrepreneurs who engage in the market process, absorbing cues from prices and the actions of their competitors and buyers, making business decisions on what seeds to use and arbitrage potential in storing for later sale. This playbook lists eight distinct reforms needed in the agriculture sector so our farmpreneurs may be free to make and sell. These reforms cut across myopic land regulations, the regressive input subsidy and control regime, and the fetters on spot, futures and credit markets. The playbook largely focusses on bad policies that need repeal or revision, less so on things, the government needs to do more of.

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Street vendors form an integral part of the urban economy—majority of the population depends on hawkers for affordable goods and services. Vending constitutes a sizeable proportion of the informal sector and creates opportunities for entrepreneurship and self-employment. For several decades post-independence vendors faced harassment, extortion and eviction at the hands of local authorities and found no respite from courts either.

In 2014, recognising the rights of vendors to earn a dignified living, Parliament passed the Street Vendors (Protection of Livelihood and Regulation of Vending) Act 2014. The Act introduces a uniform framework to regulate vending, but delegates rule-making and decision-making powers to state governments and local authorities. Compliance with the Act has two components: formulating subordinate legislation (de jure) and introducing institutional mechanisms and processes (de facto) by which vendors’ rights are protected and conflicting claims over urban streets are managed.

Progress Report 2020: Implementing the Street Vendors Act
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Figure 1: Tracking de facto and de jure progress made by states since 2014

Since 2014, Centre for Civil Society has tracked the de jure and de facto progress made by states in implementation. This year, drawing from the Management Information System maintained by the National Urban Livelihoods Mission (NULM), we obtained data on implementation progress at the level of states and urban local bodies (ULBs). The 2019-20 report builds on our previous practice of tracking state progress and contains three sections.

First, we review the progress made by 28 states and their respective ULBs in implementing the Act using data received from the MoHUA. We rank and score state performance and present a list of top performing ULBs across the country.

Second, we present a cross-state comparison of rules and schemes notified under the Act. Using maps and simplified tabulations we capture the patterns, variations and similarities in the way states approach the same rule-headings.

Third, we present the salient features, hits and misses of the rules and schemes of 35 states and union territories. For each state, we examine whether the delegated legislation departs from the mandate of the Act and encodes checks against administrative excesses.

What do we find?

1. Mixed state performance in implementing the Act:

(a) Many states have substantially progressed in implementing the Act. The range of scores on the Index has risen from 9-76 points (out of 100) in 2018-19, to 20-78 points in 2019-20. In Andhra Pradesh, the highest ranking state, all towns have constituted Town Vending Committees (TVCs), completed enumeration, formulated vending plans, issued identity cards and demarcated vending zones.

(b) Other states continue to fare poorly. Seven states (Assam, Haryana, Karnataka, Maharashtra, Madhya Pradesh, Puducherry and Uttarakhand) are yet to notify schemes and two states (Telangana and Uttarakhand) are yet to notify rules. Although 75% of ULBs have formed TVCs, only 47% have vendor representatives. In four states (Maharashtra, Puducherry, Telangana and Tripura) no ULB has constituted TVCs with vendor representation. In states where most TVCs have completed surveys, vending certificates have not been issued. Only four states (Madhya Pradesh, Nagaland, Punjab and Uttar Pradesh) have constituted grievance redressal committees.

 

2. While some ULBs represent best practices, most ULBs show glaring inconsistencies with the Act in their method to madness:

(a) Even in the top performing states, ULBs are implementing the Act on their own terms. They have enumerated vendors, distributed vending certificates, formulated vending plans and demarcated vending zones without constituting TVCs—the mainstay for all processes.

(b) Of the 3,248 ULBs in our dataset, less than 131 ULBs ( 4%) meet the criteria for top ULBs. Most of the best performing ULBs (109) are in Andhra Pradesh. Other 22 ULBs are spread across eight states: Tamil Nadu, Rajasthan, Mizoram, Kerala, Jharkhand, Gujarat, Himachal Pradesh and Madhya Pradesh.

 

3. In many cases, notified rules and schemes introduced by states appear to go against or beyond the mandate of the Act:

(a) In some states, rules and schemes delegate powers to state governments and local authorities that go beyond the mandate and intent of the Act. For instance, in Arunachal Pradesh, Bihar, Goa, Haryana, Karnataka, Nagaland, Andaman & Nicobar, Chandigarh, Daman & Diu and Delhi rules empower state governments to remove any member of the TVC. This mandate finds no mention in the parent Act.

(b) In other states, rules and schemes fail to provide clear guidance on executive action. For instance, in Arunachal Pradesh, Bihar, Chattisgarh, Manipur, Meghalaya and Nagaland schemes introduce ’misbehaviour’ as grounds for suspension of vending certificates without defining what constitutes ‘misbehaviour’.

(c) In yet other states, the delegated legislation introduces new obligations that are not mentioned in the parent Act. For instance, in Rajasthan and Meghalaya, schemes mandate vendors to maintain record books for TVCs to inspect at any time.

By tracking state and ULB level performance, our report highlights the gaps in implementation and allows state authorities to draw lessons from one another.

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The Indian Parliament enacted the Street Vendor (Protection of Livelihood and Regulation of Street Vending) Act in 2014, to prevent harassment of street vendors and to regulate their livelihood. Given the important role played by local authorities in regulating street vending, the Act delegates rule-making powers to the State Government. It specifies the respective authorities for making rules, schemes and bye-laws, neatly delineates the rule-making heads/matters for each of these and specifies the timeline for enacting them. While State Governments are tasked with framing rules and formulating schemes, municipal authorities have to enact bye-laws.

Apart from shaping local governance, the content of State schemes and rules have a bearing on the vendors’ right to occupation and the duties imposed on them. While the parent Act sets the contours for regulation, States vary in the way they adopt, interpret or elaborate on the different aspects of street vending.

We have prepared two matrices that feature cross-tabulation of all state rules and schemes under the Street Vendors Act, 2014. These matrices are user-friendly tools that facilitate a comparison between States based on the different ways in which they approach the same rule-headings, under the parent Act.

Rules

Section 36 (2) of the Central Act directs the states to notify rules within one year from the date of commencement of the Act. Sub-sections 2(a) to 2(r) outline the matters that the rules may address. These include the dispute redressal mechanism, the constitution and functioning of the Town Vending Committee (TVC), record maintenance, social audit and the returns to be furnished.

The matrix on State rules clubs these 19 rulemaking heads under 5 categories. These 5 categories are further classified into smaller specifications to provide clause level summaries of the different State provisions. Some columns are empty. Since the parent Act does not mandate the rules to deal with all matters, some states have not introduced any provisions for specific matters.

Schemes

Per section 38, states should draft and notify the scheme within 6 months from the commencement of the Act, in consultation with the TVC and the local authorities. The second schedule of the Act elaborates on the matters that the scheme may address. This includes laying down the process for conducting the survey, issuing identity cards and certificate of vending, the guidelines for earmarking vending zones, vending regulations for different categories of vendors, provisions regarding vending fee and the relocation and the eviction of vendors.

The matrix on State schemes clubs these 29 rulemaking heads under 13 categories. These are further classified into smaller specifications to provide clause level summaries of different scheme provisions.

Municipal Corporation of Greater Mumbai [commonly known as Brihanmumbai Municipal Corporation (BMC)], responsible for regulating street vending in Bombay, has been grappling with the ‘street vendor nuisance, encroachment and other illegalities’ since at least the 1880s. According to the Government of India, there are around 2,50,000 vendors in Bombay. Their rights are protected under the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act 2014. This Act empowers a participatory committee called Town Vending Committee to regulate street vending, conduct a survey of all street vendors and formalise them.

There are four major challenges in the way the Government of Maharashtra has implemented this Act.

Enumerating Street Vendors in Mumbai
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First, Rule 22 of the Maharashtra Street Vendors (Protection of Livelihood and Regulation of Street Vending) (Maharashtra) Rules, 2016 empowers the Municipal Commissioners and the State Government to veto TVC proposals. This veto power dilutes participatory governance and may be misused to make the TVC dysfunctional. This veto power is against the Street Vendors Act, 2014 as the Act expressly supersedes all other local laws. Deciding whether a proposal by the TVC violates another law is a judicial function and vesting the power of judicial review in an executive body is also a violation of the doctrine of separation of powers.

Second, six years have passed since the enactment of the Street Vendors Act, 2014 but the Government of Maharashtra has still not formulated a statutory scheme as per the mandate of the Act. Although the Government formulated a scheme in 2017, Azad Hawkers Union challenged it on the grounds that the scheme was not framed in due consultation with the local authority and TVC. Bombay High Court ruled that the scheme is not legitimate as it did not comply with the consultation mandate.

Third, the 2014-Vendor survey did not comply with any statutory requirement - either with the Street Vendors Act, 2014 or with 2009-Policy. In Azad Hawkers Union 2017, street vendors argued that a survey is not possible in the absence of TVCs with duly elected members and that without the survey, street vendor elections cannot be conducted. Bombay High Court called it a chicken- egg question and addressed this legal conundrum by ruling that the first elections to the TVC may be based on the surveys conducted under the 2009 Policy. The 2009 Policy prescribes a census like survey and hiring of a professional agency for conducting the survey. But the 2014-registration drive was based on application submission and not census-like survey. BMC merely distributed forms and asked the vendors to submit the filled form later, along with other documents. Also, BMC did not hire any professional agency to undertake a survey.

Fourth, even though the Street Vendors Act, 2014 does not prescribe requirements like domicile certificate for the purpose of registration and licensing, the Government of Maharashtra has added a domicile certificate to the list of required documents. This requirement has brought down the number of eligible street vendors from 23,265 to 5,000 only.

Another exclusionary policy is the ban on roadside cooking. Previously the Municipal Commissioner had advocated for a ban on the vending of any cooked food articles. But the Supreme Court in Bombay Hawkers Union case found such a condition to be an unreasonable restriction. This issue has been repeatedly discussed both in the Supreme Court and the Bombay High Court. With the enactment of the Street Vendors Act, 2014, no such restrictions were placed on roadside cooking or the sale of cooked food. Yet, on 23 October 2015, Bombay High Court refused to accord protection to those vendors who cook food at the place of street vending. The judiciary is therefore reading a prohibition in the law that the Parliament has not legislated.

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The Street Vendors Act 2014 mandates the formation of town vending committees (TVC) to survey all local street vendors at least once every five years. Until a survey is complete, no street vendor is to be evicted. In this attached study, we document how street vendors were enumerated in Gurugram, Haryana.

Multiple surveys, varying methods

In the span of seven years, six private agencies have been contracted by different government departments at the municipal and state level. These agencies carried out surveys using varying methods and each reported different number and category of vendors (Figure 1). Despite multiple attempts, it is not clear if and how the agencies adhered to the Central Act and state guidelines. There also seems to be a lack of thorough and careful evaluation, by the local authority, of the work carried out by the private agencies.

Timeline of surveys in Gurugram
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Figure 1: Timeline of surveys in Gurugram

Contracted agencies used different survey practices

To understand the enumeration mechanisms adopted by different agencies, we interviewed two agencies, Egmac Capital and REPL. The former was contracted under the local authority and surveyed sector 10A and 56, the latter was contracted by the state government and surveyed the whole of Gurugram.

While Egmac Capital carried out a survey using physical forms, REPL used an app called the REPL Survey. The application allowed the agency to geotag the individual vending spot of all vendors. Figure 2 lists the differences in practices followed by the two agencies.

Comparative analysis of survey practices adopted by two agencies
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Figure 2: Comparative analysis of survey practices adopted by two agencies

Critical gaps in vendor enumeration practices in Gurugram

Surveys are not all-inclusive: Barely a third of the vendors we interviewed (11 out of 30) were surveyed under any of the survey exercises. Even in designated vending zones, vendors remain uncounted. None of these vendors could confidently declare who their surveyor was.

Local authority reigns supreme: The Act is clear on two aspects: first, the final decision on vending zones will be made by the local authority in consultation with the TVCs, and two, the scheme has to provide for the conditions and principles of demarcating vending and no-vending zones. Haryana fails on both aspects: the local authority decides and then declares its decision to the TVC, and there is no notified scheme.

Misaligned Incentives: The TVC meeting minutes, from 25 January 2017, highlight that one of the agencies underreported the number of vendors to evade paying the Municipal Corporation of Gurugram (MCG) its share in the fees collected from vendors. In another instance, the state government paid REPL on a per vendor basis. While the first instance creates incentives for the agency to underreport, a per-vendor payment system may create perverse incentives to overreport the number of vendors.

Survey complete without a scheme. What next?

There remain many implementation gaps. Haryana, for example, has not drafted the scheme, as required under the Street Vendors Act 2014. The state government and the MCG carried our surveys, through private agencies, in the absence of a scheme. Further, the scope and results of the agencies differed significantly making comparisons or creation of a unified dataset of vendors difficult.

The survey reports of all the agencies are stuck with the local authority and TVC. Complaints to the MCG by the vendors and the private agencies go unheard. Currently, the only avenue to express concerns, the TVC, has not conducted any meeting since 21 August 2018.

Gurugram’s model of contracting out vendor enumeration to private agencies may be desirable given constraints on state capacity. However, without clear objectives and rigorous evaluation of work, we are left with less than perfect outcomes.

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The report argues that street vendors who are expressly recognised and protected by the Street Vendors Act 2014 continue to be stigmatized as “encroachers” and face the usual official and unofficial consequences including extortion, harassment and evictions. State apparatus has not fully implemented the law in most states. Moreover, by evicting the vendors and creating novending zones before enumeration, state authorities as well as local administrations have been in clear conflict with the law. Unfortunately, the courts have mostly sided with the government and upheld evictions.

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Street vending is typically self-regulated by informal but codified norms of space allocation. Vendors, in most cases, allocate/occupy spots based on the rule of first possession. Kettles (2006) argues self-regulation brings efficiency and reduces conflicts through the identification of “valuable” revenue-generating vending sites. For the administration, such self-regulation reduces the burden to identify and allocate vending spots. More importantly, formalising existing informal practices increases compliance, reducing the need for enforcement.

In this article, we deal with a question central to urban planning: How should the Indian government, in light of Street Vendors Act 2014, formalise and allocate of rights to public spaces?

Recap of Street Vendors Act 2014

The Street Vendors Act 2014 seeks to formalize the existing space allocation to a great extent instead of allocating de novo. It attempts to formalize all existing vendors and prohibits declaring existing natural markets into no-vending zones. The Act necessitates the formation of a local governance body, called the Town Vending Committee (TVC), responsible for the regulation of vendors. The Committee is mandated to survey all vendors and issue Certificates of Vending (CoV) to all identified vendors.

The central problem is ultimately determining a method to the madness around the use of public spaces such that interests of all parties, especially vendors, are met. Put another way, this requires some process to determine and assign user rights to vendors.

Formalising vendors will require formalising usufructuary vending rights

The Act approaches the question of assigning property rights, particularly user rights to a particular spot, to vendors in conflicting terms. On the one hand, Section 29(1) expressly declares that the Act confers no “temporary, permanent or perpetual right of carrying out vending activities in the vending zones allotted to him or in respect of any place on which he carries on such vending activity.”

On the other hand, section 5(1)(c), for example, mentions a condition of non-transferability for issuance of CoV. This condition prohibits the transfer of CoV, rent or even the place specified in the CoV to any other person. It implies, place of vending is ‘specific’ and it is to be specified in the CoV.

Three aspects of implementation require careful attention

First, while the Act protects existing vendors by requiring local governments to accommodate them until the upper limit of 2.5% of the local population is reached, it leaves the determination of holding capacity, applicable to new vendors, to the local authority. The principles the state government lays out in determining the formula for calculating holding capacity will determine how inclusive or accommodative the local government will be of new vendors.

Second, if the demand for CoV from existing vendors and new applicants exceeds the holding capacity, the Act suggests carrying out a draw of lots. While section 4(3) of the Act seems to equate existing and new vendors, we recommend prioritising existing vendors over new applicants. The manner in which state governments balance the demands of existing and new applicants, especially when it exceeds holding capacity and 2.5% of the population, have implications on vendor livelihoods and urban space management.

Third, the Act is ambiguous on whether or not to assign property rights to a specific spot to a vendor. There may be different ways to approach this: allocation of exclusive rights to a site to the vendor, allocation on the time-sharing basis (in a day, month, or season) or allocation of an area without specifying the vending site. Each of these policy choices has pros and cons, and has a bearing on the degree of vendor formalisation.

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Editor’s Note: The authors published a much more extensive report on the Street Vendors Act of 2014 titled “Progress Report: Implementing the Street Vendors Act 2014”available on Centre for Civil Society’s website at https://tinyurl.com/y4bywn6o. For more information about Centre for Civil Society, please visit their main website at https://www.ccs.in/.

Street vending is a source of livelihood for many urban poor, and of affordable and essential goods to the public. In India, stories of vendor harassment by the local administration as well as the police are ubiquitous. It appears to be less about vendor rights and more about the power that different actors exercise over public spaces.

One must look at the process whereby a new hawker enters the trade . . . Then starts the bargain with the local policeman, the municipal recovery inspector, the influential (known) hawker-cum-leader and even the local goon for permission to engage in hawking activity at a particular location . . . A similar negotiation takes place for erecting a hut in a slum locality…payment to be made to the slumlord (a volunteer of some political party)…expected to be a part of the vote bank of the concerned political party. Subsequent hafta payments continue unless the hawker becomes politically active, or joins the local mafia . . .(note 1)

There are several issues at the heart of the street vending debate and assigning rights over the use of public space is the most contentious. A vendor’s right to occupation, for example, conflicts with commuters’ rights to move freely. The central policy problem is managing such conflicting and competing interests of vendors, pavement users, local residents, vehicular traffic and urban space managers.

NOTES

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