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Objective
Of The Project
While extreme
hunger is always there in India, natural disasters such as floods
and droughts bring more hunger because so many of the people are
so vulnerable, living at the edge of hunger all the time.
Like many
other developing countries, India has a wide variety of feeding
programs, food subsidies, and other sorts of "schemes" to
alleviate hunger, but somehow these programs are never quite
enough. Lacking political power, marginalized people stay
marginalized despite such efforts to help them. They can be
empowered, however, through clear acknowledgment of their human
rights. Over the centuries, many millions of people have gone
hungry in India. Now, for the first time, the claim has been made
that the government has a positive obligation to do something
enforce this right, and if government does not meet its
obligation, it can be called to account in the nation's courts.
In terms of
the law, the human right to adequate food is a part of the right
to an adequate livelihood, which is a part of economic rights,
which is a part of human rights generally, which is a part of
international law.
The core idea
underlying human rights is simple. There are some fundamental
things that people require if they are to live in dignity, and
therefore they should be recognized as having rights to those
things. These rights are spelled out in international human rights
law. While every individual and every organization has certain
obligations with regard to the human rights of the people they
affect, it is national governments that carry the primary
obligation to assure that people are able to live in dignity.
The right to
food is one of the most basic human rights, closely linked to the
right to life. No government practice or action can be allowed to
deny this right to people. Human Rights are indivisible and
inalienable. The denial of one right inevitably affects the
enjoyment of other rights, but also the inherent relationship
between the rule of law and the protection of all human rights,
including the right to food. Effective rule of law does not
include only legal provisions on paper, but their adequate
implementation and room for redress. The right to food in
particular, must be made justiciable in courts of law. All those
suffering from the pangs of hunger are also being denied other
basic human rights, be they civil and political rights, or
economic, social and cultural rights. And in all the cases, these
rights are not affected by natural causes or a lack of resources,
but rather by systemic negligence and ineffective distribution.
The Ultimate
objective of this project is to see that the Right to Food is
legally recognized as a fundamental right in India thereby putting
an end to death due to hunger, malnutrition and starvation.
Although Right
to food has been a much talked and discussed about topic among the
intelligentsia of the country, the most innovative thing about my
project related to Right to food in India is that in my project I
have tried to analyze the Right to food with a purely legal view
above the terms of state's moral duty and responsibility to
provide adequate food to its citizens. It has to make the paradigm
shift from the domain of benevolence to that of the right of a
citizen. It would imply that the beneficiaries of relief measures
should be recognized as
claim holders.
Viewed from this perspective, the prevalence of
distress-conditions threatening starvation constitutes an injury
requiring the imposition of a penalty on the State. The penalty
would be claimed for the affected groups as a whole rather than on
the basis of individual claims. The Right to Food implies the
right to food at appropriate nutritional levels. It also implies
that the quantum of relief to those in distress must meet those
levels in order to ensure that the Right to Food is actually
secured, and does not remain a theoretical concept. I am a strong
supporter of the formation of the fundamental right of Right to
Food.
Introduction:-
From a nation dependent on food imports to feed its population,
India today is not only self-sufficient in grain production, but
also has a substantial reserve. The progress made by agriculture
in the last four decades has been one of the biggest success
stories of free India. Agriculture and allied activities
constitute the single largest contributor to the Gross Domestic
Product, almost 33% of it. Agriculture is the means of livelihood
of about two--thirds of the work force in the country.
It is true
that the country now produces enough food to feed its entire
people. India no longer suffers through large-scale famines as it
has in the past. When there are rapid increases in hunger in some
parts of India, it is now usually attributed to short-term natural
events such as hurricanes or droughts. These are described as
transitory, episodic events, temporary deviations from normal.
However, this
upbeat version of the food situation in India neglects the reality
of widespread chronic malnutrition in the country. Temporary
disruptions in the food system by natural calamities are
disastrous for so many people only because they live so close to
the edge of disaster under normal conditions. India could feed its
entire people, but it doesn't. The chronic conditions
the conditions
that are normal
for many millions of people in India are unacceptable in terms of
the basic requirements of human dignity.
The problems
are not rooted in the vagaries of natural phenomena, but in deeply
embedded political and economic patterns. There are massive
governmental programs--or
schemes
as they are called--for feeding poor children, providing
subsidized foods, etc.--but still the problems persist. Enormous
amounts of money are spent on such programs. Yet, somehow, the
benefits don't reach the people who need them most.
There is a
story now unfolding that helps us to understand how things can go
so wrong. The central government of India has been storing many
millions of tons of grain while people are starving. That is not
new. What is new is that a human rights organization in India, the
People's Union of Civil Liberties (PUCL), has challenged this
practice in the Supreme Court of India. Light is being shined into
places that had been well hidden, and the scandal is being
thoroughly aired in India�s media.
The case is
being tried on the basis of India's constitution and its federal
and state laws, especially its famed Famine Code. This review
shows how the case fits into the framework of international human
rights, and specifically the human right to adequate food. Viewing
the case in this larger context, we can see that this case is
relevant to food assistance programs in every country, and to
international humanitarian assistance as well.
The Supreme
Court Decision
On April 16, 2001, the PUCL submitted a
writ petition
to the Supreme Court of India asking three major questions:
A. Starvation
deaths is a natural phenomenon while there is a surplus stock of
food grains in the Government godown. Does the right to life mean
that people who are starving and who are too poor to buy food
grains ought to be given food grains free of cost by the State
from the surplus stock lying with the State, particularly when it
is reported that a large part of it is lying unused and rotting?
B. Does not
the right to life under Article 21 of the Constitution of India
include the right to food?
C. Does not
the right to food, which has been upheld by the Hon�ble Court,
imply that the State has a duty to provide food especially in
situations of drought, to people who are drought affected and are
not in a position to purchase food?
Article 21 of
the constitution, entitled
Protection of
life and personal liberty,
says, in its entirety,
No person
shall be deprived of his life or personal liberty except according
to procedure established by law.
As a result of
the ongoing proceedings, the Supreme Court has been issuing orders
calling upon government agencies to identify the needy within
their jurisdictions, and to assure that they receive adequate
food. For example, on July 23, 2001, the court said:
In our
opinion, what is of utmost importance is to see that food is
provided to the aged, infirm, disabled, destitute women, destitute
men who are in danger of starvation, pregnant and lactating women
and destitute children, especially in cases where they or members
of their family do not have sufficient funds to provide food for
them. In case of famine, there may be shortage of food, but here
the situation is that amongst plenty there is scarcity. Plenty of
food is available, but distribution of the same amongst the very
poor and the destitute is scarce and non-existent leading to
mal-nourishment, starvation and other related problems.
On September
3, 2001, the court directed that 16 states and union territories
that had not identified families below the poverty line must do so
within two weeks, so that those families could be provided with
food assistance. After two weeks, on September 17, 2001, the court
reprimanded them, saying,
we are not
satisfied that any such exercise in the right earnestness has been
undertaken.
They were then given another three weeks to comply with the order.
The court also reminded the states that
certain
schemes of the Central Government are mentioned which are required
to be implemented by State Governments:
The Chief
Secretaries of all the States & the Union Territories are hereby
directed to report to the Cabinet Secretary, with copy to the
learned Attorney General, within three weeks from today with
regard to the implementation of all or any of these Schemes with
or without any modification and if all or any of the Schemes have
not been implemented then the reasons for the same.
All state
governments were directed to take their
entire allotment of foodgrains from the Central Government under the various Schemes
and disburse the same in accordance with the Schemes.
Further, the court required that
the Food for Work Programme in the
scarcity areas should also be implemented by the various States to
the extent possible.
On November
28, 2001, the court issued directions to eight of the major
schemes, calling on them to identify the needy and to provide them
with grain and other services by early 2002. For example, for the
Targeted Public Distribution Scheme,
The States are directed to
complete the identification of BPL (below poverty level) families,
issuing of cards, and commencement of distribution of 25 kgs.
grain per family per month latest by 1st January, 2002.
Intervention
by the Supreme Court is a mechanism of accountability, but it is
not normally available to ordinary people on a local basis. The
present Supreme Court case in India has become necessary because
there are no effective mechanisms of accountability available to
ordinary people at the local level. Until local people know their
rights and know that they have effective means through which to
exercise them, there is no effective system for assuring the
realization of the right to adequate food in India.
Right To
Food - On The Touchstone Of The Indian Constitution
"The
Constitution of India has the right to everything, but in
practice, the people have the right to nothing,"
In any rights
system there are three distinct roles to be fulfilled: the rights
holders, the duty bearers, and the agents of accountability. The
task of the agents of accountability is to make sure that those
who have the duty carry out their obligations to those who have
the rights. To describe a rights system, we need to know the
identities and also the functions of those who carry out these
roles. We would also want to know the mechanisms or structures
through which these functions are to be carried out. Thus, we
would want to know:
A. The nature of the rights holders and their rights;
B. The nature
of the duty-bearers and their obligations corresponding to the
rights of the rights holders; and
C. The nature
of the agents of accountability, and the procedures through which
they assure that the duty bearers meet their obligations to the
rights holders. The accountability mechanisms include, in
particular, the remedies available to the rights holders
themselves.
These are the
three core components, the "ABCs"
of rights systems. A rights system can be understood as a kind of
cybernetic self-regulating arrangement designed to assure that
rights are realized. In any cybernetic system, a goal is decided
upon, and means are established for reaching that goal. In
addition, there are specific means for making corrections in case
there are deviations from the path toward the goal. This is the
self-regulating aspect of the system. With regard to the human
right to adequate food, the goal is to end hunger and
malnutrition.
Any government
can say it has such lofty goals. These things may even be promised
in the nation's constitution. But we know that there are many
cases in which governments go off course and fail to deliver on
their promises. In nations where there is an effective rights
system, however, there are specific mechanisms for calling the
government to account; that is, for making course corrections. The
most fundamental of these mechanisms of accountability is for
rights holders themselves to have effective remedies through which
they can complain and have the government's behavior corrected.
This is the missing piece in India's system for addressing the
right to food. Where there are no effective remedies, there are no
effective rights.
Article 21 of
the Constitution of India guarantees a fundamental right to life
liberty. The expression
Life in this Article has been judicially
interpreted to mean a life with human dignity and not mere
survival or animal existence. In the light of this, the State is
obliged to provide for all those minimum requirements which must
be satisfied in order to enable a person to live with human
dignity, such as education, health care, just and humane
conditions of work, protection against exploitation etc. In the
view of the Commission, the Right to Food is inherent to a life
with dignity, and Article 21 should be read with Articles 39(a)
and 47 to understand the nature of the obligations of the State in
order to ensure the effective realisation of this right. Article
39(a) of the Constitution, enunciated as one of the Directive
Principles, fundamental in the governance of the country, requires
the State to direct its policy towards securing that the citizens,
men and women equally, have the right to an adequate means to
livelihood. Article 47 spells out the duty of the State to raise
the level of nutrition and the standard of living of its people as
a primary responsibility. The citizen's right to be free from
hunger enshrined in Article 21 is to be ensured by the fulfillment
of the obligations of the State set out in Articles 39(a) and 47.
The reading of
Article 21 together with Articles 39(a) and 47, places the issue
of food security in the correct perspective, thus making the Right
to Food a guaranteed Fundamental Right which is enforceable by
virtue of the constitutional remedy provided under Article 32 of
the Constitution. The requirements of the Constitution preceded,
and are consonant with, the obligations of the State under the
1966 International Covenant of the Economic, Social and Cultural
Rights to which India is a party. That Covenant, in Article 11,
expressly recognises the right of everyone to an adequate standard
of living, including adequate food.
Despite its
strong economic growth, rapid development of information
technology and the claim of being the largest democracy in the
world, India remains one of the worst human rights violators in
Asia. Being discriminated on the basis of caste is unfortunately a
common occurrence for a large number of India's population.
demonstrates how this discrimination violates many of their
fundamental human rights, including their right to food.
The practice
of caste discrimination, by its very nature, is one that affects
the right to food, and many other rights, as described above. In
this case then, hunger is caused by social practices, not any
natural causes. Furthermore, there is a strong link between the
protection of the right to food (and other rights) and the rule of
law. While there are legal provisions available (as will be shown
in the section below) for the protection of both the rights to
food and non-discrimination, these rights are clearly still being
violated.
This
highlights not only the indivisibility of rights whereby the
denial of one right inevitably affects the enjoyment of other
rights, but also the inherent relationship between the rule of law
and the protection of all human rights, including the right to
food. Effective rule of law does not include only legal provisions
on paper, but their adequate implementation and room for redress.
The right to food in particular, must be made justiciable in
courts of law.
THE RIGHT TO
FOOD INTERNATIONALLY
The orders issued by the court clearly established that the court
understands the right to life, affirmed in article 21 of India�s
constitution, as implying the right to food. While the court has
been guided entirely by national law, it could also draw on recent
advances made in understanding the right to food at the global
level.
There is
increasing recognition worldwide of the human right to adequate
food. There is a legal obligation to assure that all people are
adequately nourished. The articulation of the human right to
adequate food in modern international human rights law arises in
the context of the broader human right to an adequate standard of
living. The Universal Declaration of Human Rights of 1948 asserts
in article 25(1) that "everyone has the right to a standard of
living adequate for the health and well-being of himself and his
family, including food . . . ."
The human
right to adequate food was subsequently reaffirmed in two major
binding international agreements. In the International Covenant on
Economic, Social and Cultural Rights (which came into force in
1976), article 11 says that "The 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 also
recognizes "the fundamental right of everyone to be free from
hunger
. . . "
In the
Convention on the Rights of the Child (which came into force in
1990), two articles address the issue of nutrition. Article 24
says that "States
Parties recognize the right of the child to the enjoyment of the
highest attainable standard of health . . .(paragraph 1)"
and shall take appropriate measures "to
combat disease and malnutrition . . . . through the provision of
adequate nutritious foods, clean drinking water, and health care
(paragraph 2c)."
Article 24 also says that States Parties shall take appropriate
measures . . .
"To ensure
that all segments of society, in particular parents and children,
are informed, have access to education and are supported in the
use of basic knowledge of child health and nutrition [and] the
advantages of breastfeeding . . . ."
Article 27
says in paragraph 3 that States Parties "shall in case of need
provide material assistance and support programmes, particularly
with regard to nutrition, clothing, and housing."
Even if the
human right to adequate food had not been stated directly, it
would be strongly implied in other provisions such as those
asserting the right to life and health, or the Convention on the
Rights of the Child's requirement (in article 24, paragraph 2a)
that States Parties shall "take appropriate measures to diminish
infant and child mortality". The human right to adequate food has
been reaffirmed at the international level in many different
settings.
Beginning in
the late 1990s, work on the human right to adequate food at the
global level centered on a mandate from the World Food Summit held
in Rome in 1996. In the Summit's concluding Plan of Action,
Objective 7.4 called upon . . .
... the UN
High Commissioner for Human Rights, in consultation with relevant
treaty bodies, and in collaboration with relevant specialized
agencies and programmes of the UN system and appropriate inter-
governmental mechanisms, to better define the rights related to
food in Article 11 of the Covenant and to propose ways to
implement and realize these rights . . . .
A series of
expert consultations, conferences, and studies steadily clarified
the meaning of the human right to food. This effort culminated
with the publication on May 12, 1999 by the UN's Committee on
Economic, Social and Cultural Rights of its General Comment 12
(Twentieth session, 1999): The Right to Adequate Food (Art. 11).
This statement by the committee constitutes a definitive
contribution to international jurisprudence.
Paragraph 5 of
General Comment 12 observes, Fundamentally, the roots of the
problem of hunger and malnutrition are not lack of food but lack
of access to available food, inter alia because of poverty, by
large segments of the world's population." The reference here is
to the fundamental distinction between availability (is there food
around?) and access (can you make a claim on that food?).
Paragraph 6 presents the core definition:
The right to
adequate food is realized when every man, woman and child, alone
or in community with others, has physical and economic access at
all times to adequate food or means for its procurement. GC12
paragraph 7 explains that adequacy means that account must be
taken of what is appropriate under given circumstances. Food
security implies food being accessible for both present and future
generations. Sustainability relates to long-term availability and
accessibility. Thus, as explained in paragraph 8, the core content
of the right to adequate food implies:
The
availability of food in a quantity and quality sufficient to
satisfy the dietary needs of individuals, free from adverse
substances, and acceptable within a given culture;
The
accessibility of such food in ways that are sustainable and that
do not interfere with the enjoyment of other human rights.
Paragraph 14
summarizes the obligations of States as follows:
Every State is obliged to ensure for everyone under its
jurisdiction access to the minimum essential food which is
sufficient, nutritionally adequate and safe, to ensure their
freedom from hunger.
Paragraph 15
draws out the different kinds or levels of obligations of the
state. These obligations may be sorted into categories as follows:
# respect - "The obligation to respect existing access to adequate
food requires States parties not to take any measures that result
in preventing such access."
#
protect
- "The obligation to protect requires measures by the
State to ensure that enterprises or individuals do not deprive
individuals of their access to adequate food."
# fulfil (facilitate)
- "The obligation to fulfil (facilitate)
means the State must pro-actively engage in activities intended to
strengthen people's access to and utilization of resources and
means to ensure their livelihood, including food security."
# fulfil (provide) - "Finally, whenever an individual or group is
unable, for reasons beyond their control, to enjoy the right to
adequate food by the means at their disposal, States have the
obligation to fulfil (provide) that right directly. This
obligation also applies for persons who are victims of natural or
other disasters."
General
Comment 12 also addresses the issues of implementation at the
national level, framework legislation, monitoring, remedies and
accountability, and international obligations.
The primary
responsibility of national governments is to facilitate, which
means assuring that there are enabling conditions that allow
people to provide for themselves. However, where people not able
to feed themselves adequately, governments have some obligation to
provide for them. While international law does not specify the
character or level of assistance that is required, it is clear
that, at the very least, people must not be allowed to go hungry.
Article 11 of the International Covenant on Economic, Social and
Cultural Rights recognizes
the fundamental right of everyone to be free from hunger.
Paragraph 6 of General Comment 12 explains,
States have a
core obligation to take the necessary action to mitigate and
alleviate hunger as provided for in paragraph 2 of article 11,
even in times of natural or other disasters.
Paragraph 14 adds,
Every State is
obliged to ensure for everyone under its jurisdiction access to
the minimum essential food which is sufficient, nutritionally
adequate and safe, to ensure their freedom from hunger.
Paragraph 17 says,Violations
of the Covenant occur when a State fails to ensure the
satisfaction of, at the very least, the minimum essential level
required to be free from hunger.
There is no ambiguity here
To repeat the
main definition:
The right to adequate food is realized when every man, woman and
child, alone or in community with others, has physical and
economic access at all times to adequate food or means for its
procurement. It is clear that this goal has not been achieved in
India. Perhaps even more important, at this stage, is the fact
that the realization of the right to food has not been clearly
established as the government's goal. Much of the debate in India
has centered on the question of whether there have in fact been
large numbers of starvation deaths. Those who say no, and thus
defend the government, take a narrow view of the meaning of
starvation.
They take it to mean deaths directly attributable to an extreme
lack of food, and they focus on adult deaths. In fact, most deaths
associated with malnutrition are due to a combination of
malnutrition and disease. The immediate, final cause of death, the
phrase written on the death certificate, is usually some disease,
often an infectious disease, rather than starvation or hunger as
such.
India's
government agencies at both central and state levels seem to have
trouble seeing the massive hunger that characterizes India. This
is apparent in the working agenda of the National Institute of
Nutrition in Hyderabad. The institute occupies itself with minor
technical questions, and does experimental studies on questions
that can be addressed quite adequately in developed countries,
while practically ignoring the deep and widespread hunger all
around the country. Technical research avoids facing up to the
problem, which is deeply political. There is no hope of solving
the hunger problem if the government and its agencies refuse to
see it.
In developed
countries, hunger may be hard to see, but in developing countries,
the suggestion that there is no hunger can only be a matter of
deliberate denial. Some in government in India are suggesting that
the poor have no serious problems, while many of the poor are in
such deep despair that they are committing suicide.
As a party to
the International Covenant on Economic, Social and Cultural Rights
and the Convention on the Rights of the Child, India has committed
itself to honoring the right to adequate food.
It follows,
therefore, that there is a fundamental right to be free from
hunger. Starvation constitutes a gross denial and violation of
this right. As starvation deaths reported from some pockets of the
country are now invariably the consequences of misgovernance
resulting from acts of omission and commission on the part of
public servants, they are of direct concern to the Commission
under the provisions of the Protection of Human Rights Act, 1993.
Universally,
there is a demand that every effort be made by the State and by
civil society to eradicate the poverty and hunger that constitute
an affront to the dignity and worth of the human person. First and
foremost among the United Nations Millenium Development Goals (MDG)
is the pledge made by all Heads of State and Government to halve,
by the year 2015, the proportion of the world�s poor and of people
who suffer from hunger. Given the circumstances of our country,
India has a special responsibility in this regard. The prevalence
of extreme poverty and hunger is unconscionable in this day and
age, for not only does it militate against respect for human
rights, but it also undermines the prospects of peace and harmony
within a State.
Conclusion
The cases described throughout the Right to Food series have also
clearly pointed to the indivisibility of all human rights. All
those suffering from the pangs of hunger are also being denied
other basic human rights, be they civil and political rights, or
economic, social and cultural rights. And in all the cases, these
rights are not affected by natural causes or a lack of resources,
but rather by systemic negligence and ineffective distribution.
The right to
food is one of the most basic human rights, closely linked to the
right to life. No government practice or action can be allowed to
deny this right to people.
The right to
food is implicitly recognized in such provisions as the right to
life, the right to health and the right to economic, social and
cultural development, which are expressly recognized under the
Constitution of India. The right to food is inseparably linked to
the dignity of human beings and is therefore essential for the
enjoyment and fulfillment of such other rights as health,
education, work and political participation.
Therefore, We
as responsible and enlightened citizens should pressurize our
government to enforce the Right to Food, which is one of the most
basic Human rights. It is the duty of the state, as a welfare
state, to ensure adequate food and nutrition for its people. There
is a saying in Awadhi that
Bhukhe Pet Bhaje Na Gopala
which means that hungry stomachs can't even worship properly let
alone achieving other feats in life. Our government should first
ensure food for all , then only the people of this country would
be able to contribute to the progress and development of the
nation, thereby making our country a better place to live in.
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The
author can be reached at: jk.nliu@legalserviceindia.comm /
