Friday, May 25, 2007

Street Food and the Law 01: Legal Background

NB: An earlier version of this article appeared as 'Food Court: Government Policy Leaves Hawkers' Future in Balance', Down to Earth 31 May 2007.


The issue of hawkers cooking food on the roadside has become unexpectedly prominent, not to mention confusing. Not long ago, the media carried reports that the Supreme Court had agreed to the Municipal Corporation of Delhi’s (MCD) contention that hawkers cooking food on the roadside need to be banned in order to beautify the city in time for the 2010 Commonwealth Games, and also because such food constituted a health hazard to people eating it. This provoked strong reactions across sections of society.

The Supreme Court later clarified that it had imposed no such ban, but merely directed the MCD to provide infrastructure for the maintenance of hygiene. Recently, however, newspapers carried reports that the Court has accepted the bulk of the MCD recommendations. The only exceptions it permitted were in respect of tea and coffee vendors.

Inevitably, this veritable spectrum of judicial opinions gives rise to more questions than answers. What is not so apparent at first sight is that it reflects negatively on the attitude of the executive, specifically local municipal bodies. For decades, hawkers have constituted a convenient target for their ‘beautification’, ‘hygiene’ and other such knee-jerk drives. The drives themselves camouflage the fact that municipal bodies have so far failed to frame a clear-cut, rational and, most important, sustainable policy in respect of hawkers.

Early Cases

Not surprisingly, such ‘policy’ initiatives have spawned intensive litigation. Back in the 1960s, the Supreme Court in Pyare Lal v. NDMC [AIR 1968 SC 133] held that the sale of cooked food affected public hygiene. Clearly, the health risks they posed for the consumers themselves did not constitute an issue here.

In the 1985 decision Bombay Hawkers’ Union v. Bombay Municipal Corporation [AIR 1985 SC 1206], the Supreme Court passed strong remarks about how hawkers had steadily encroached upon pavements and roads, and how vested interests prevented municipal bodies from preventing them. [para 1] However, it refused to ban the outright sale of food as an unreasonable restriction on the freedom of trade: ‘There are several working families in Bombay, belonging to different strata of society, which depend upon the food supplied by hawkers. We do not see any valid reason why hawkers should not be allowed to sell cooked food, cut fruits and the like. [para 10]’

Recent Trends

Maharashtra Ekta Hawkers Union v. Municipal Corporation, Greater Mumbai [AIR 2004 SC 416] marks a new approach to the issue. Here, a distinction was carved between hawkers selling pre-cooked food, and preparing food in the stalls or kiosks. Moreover, this distinction also underscored a difference in approach between the executive and the judiciary. The respondent Municipal Corporation (known as BMC) had framed rules that prohibited even the sale of cooked food, cut fruits and the like. The Supreme Court struck down this rule, but upheld the prohibition on cooking: ‘We are unable to accept submission (sic) that cooking should be permitted. We direct that no cooking of any nature whatsoever shall be permitted. [para 14]’ Interestingly enough, the Court did not specify the grounds behind this pronouncement.

In February 2007, the Supreme Court examined various aspects of the implementation of the 2003 decision, and ventured towards a cohesive policy on the issue of hawkers [Maharashtra Ekta Hawkers Union v. Municipal Corporation, Greater Mumbai - Manupatra citation MANU/SC/0901/2007]. As such, it did not say anything specific in respect of the sale of food, pre-cooked or otherwise. From its approval of the rules framed in the 2003 decision, we may gather that the distinction between cooking in the stalls and selling pre-cooked food continues to hold good.


The judgments referred to above give us a clear indication of how judicial perspectives have altered over the years; first from emphasising public hygiene to construing roadside food as a threat to consumers’ health; and secondly in gradually carving out a distinction between pre-cooked food and food cooked within roadside stalls.

While the Court has been unequivocal in emphasising this distinction, the fact that it has not specified the reasons behind it is significant. Media reports mentioned earlier suggest public hygiene, and factors not wholly unconnected with the ‘beautification drive’ preparatory to the Commonwealth Games, constitute predominant considerations.

The situation is only muddled further by the Court’s earlier clarification that it had not banned cooking on the roadside in its entirety. If that were so, then its later acceptance of MCD recommendations must amount to a volte-face. In any case, the two orders together provoke the question: does cooking on the roadside cause so deep an impact on public hygiene that it ought to be treated on a different plane from selling already cooked food?

Beyond a point, the same question holds true in respect of the ‘personal health of consumers’ argument also. Common sense tells us that cooking by the roadside is less hygienic than selling pre-cooked food. But is the difference in hygiene levels so great as to justify a ban on cooking alone, and not the sale of cooked food? Especially given that hygiene regulations are rarely followed in packaging cooked food? Then again, if pre-cooked food is not kept in proper storage conditions, it might prove much more harmful than freshly-cooked food.

Suffice it to say, therefore, that unless these issues are explained, the rationale behind the Court’s various decisions will not become clear.