Article on 'The Right to Food'
RTF
The right to food
Biraj Patnaik
06 November 2006
In recent years, the battle against hunger has been placed at the
centre of the development discourse in India. This has come about
mainly due to the efforts of the Right to Food Campaign and as a direct
result of a writ petition filed in the Supreme Court of India.
The petition was filed by the People's Union for Civil Liberties in
April 2001 to seek legal enforcement of the right to food. This case,
popularly known as the Right to Food Case, has since become a rallying
point for trade unions, activists, grassroots organisations and NGOs to
make the right to food a justiciable right. While the Indian
Constitution does not explicitly mention the right to food as a
fundamental right, it is implicitly enshrined in Article 21 of the
Constitution as the fundamental right to life of every Indian citizen.
Article 47 of the Constitution (in the Directive Principles of State
Policy) is unambiguous: "The 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..."
The Indian judiciary, especially the Supreme Court, has on many
occasions reaffirmed that the "right to life enshrined in Article 21
means something more than animal instinct and includes the right to
live with dignity; it would include all these aspects which make life
meaningful, complete and living" (Maneka Gandhi vs Union of India AIR
1978 SC 597). Other statutory constitutional institutions like the
National Human Rights Commission (NHRC) have also stated: "There is a
fundamental right to be free from hunger" (January 17, 2003).
Despite this, India continues to be the site of the most unconscionable
levels of chronic hunger and deprivation. Child malnutrition levels in
India (46%; height for age data) have consistently been higher than
those of even Sub-Saharan Africa and of countries with lower rates of
economic growth like neighbouring Bangladesh (45%). The National
Nutrition Monitoring Bureau (conducted by the National Institute of
Nutrition, Indian Council for Medical Research) estimates that nearly
40% of the adult population in India has a Body Mass Index of less than
18.5, which implies chronic energy deficiency of epic proportions,
bordering on a national humanitarian crisis.
It is in this context that Indian planners have, over the
post-independence decades, put in place some of the biggest food
security programmes in the world. The schemes can be broadly divided
into four categories:
Entitlement feeding (Integrated Child Development Services [ICDS],
Mid-Day Meal Scheme [MDMS])
Food subsidy programmes (targeted Public Distribution System [PDS]
including Antyodaya and Annapurna Yojana)
Employment programmes (National Rural Employment Guarantee Act [NREGA],
Sampoorna Grameen Rozgar Yojana, National Food for Work Programme,
Rashtriya Sam Vikas Yojana)
Social security programmes (National Maternity Benefit Scheme, National
Old Age Pension Scheme and National Family Benefit Scheme).
These are comprehensive programmes that address the nutritional needs
of a person from the time of birth through to old age. The ICDS seeks
to take care of the nutritional challenges faced by infants and young
children (0-6 years) and pregnant women, nursing mothers and adolescent
girls; the MDMS provides meals to all primary school children; the
targeted PDS provides subsidised grain to families below the poverty
line; the NREGA provides 100 days of employment in 200 districts (to
begin with); the social assistance programmes cover the aged who are
left out of the social security net.
For decades, these programmes have succeeded in preventing the kind of
large-scale famines that occurred in the years before independence
(such as the Bengal famine of 1943). Yet they have been unable to
substantively address the problem of chronic hunger. This is not only
because of gaps in implementation, but also because, as many activists
argue, they do not provide for sustainable and lasting livelihood
options. The problem is compounded by the fact that concerted efforts
have been lacking, except in a few states like West Bengal, to
undertake land reforms, give communities rights over natural resources,
and address the structural causes of poverty. Caste and gender
discrimination have also been major contributing factors.
On the contrary, the last two decades have witnessed an unprecedented
alienation of indigenous people and other marginalised communities from
their land and other natural resources; displacement due to industrial
projects and large dams in rural areas; and fundamental changes in the
nature of poverty with unbridled urbanisation and the
disenfranchisement of large sections of urban populations. Global
pressures on the Indian economy and the pursuit of deflationary,
neo-liberal policies by successive governments from the early-1990s
have abetted in this pauperisation of millions of Indians.
The importance of the Right to Food Case has to be viewed in this
macro-context. Therefore interventions by the Supreme Court through
interim orders in this case become critical. The Right to Food Case is
perhaps the longest continuing mandamus in the world on this issue. It
is also one of the largest and most complex litigations involving a
wide range of state and civil society actors in India. More than 400
affidavits have been filed so far; over 60 interim applications have
been submitted and 47 interim orders have been passed by the SC in this
case over the last five years.
The Supreme Court and the right to food
In an interim order on November 28, 2001, the Supreme Court converted
most food and employment-related schemes into "legal entitlements".
This also implies that the Government of India and state governments
cannot change these schemes without the permission of the SC till the
final judgment is passed in this case. The campaign hopes that this
case will culminate in the right to food becoming a fundamental right
that can be made justiciable in any court of law in the country.
The interim orders of the SC reflect the growing complexity of the case
and the diverse issues being covered. The orders on universalising
access to food, especially for children-related to mid-day meals and
the ICDS-have been landmarks. On November 28, 2001, the Supreme Court
directed state and central governments to universalise the mid-day
meals and provide hot, cooked meals to all primary school children in
India. The interim order also universalised the ICDS programme, making
it mandatory for government to provide supplementary nutrition and the
other five services under the ICDS to all children below the age of
six, all pregnant women and nursing mothers and adolescent girls.
The NREGA emerged out of a separate process of political mobilisation
involving a wider range of people outside the Right to Food Campaign,
but the environment created by the Right to Food Case facilitated the
emergence of the NREGA. Detailed orders have been passed from time to
time on some of the schemes, but the PDS has not yet been
universalised, nor have many other schemes that come within the purview
of this case.
The order on the ICDS illustrates the nature of the interim orders.
This order explicitly stated that: "We direct the State
Governments/Union territories to implement the Integrated Child
Development Scheme (ICDS) in full and to ensure that every ICDS
disbursing centre in the country shall provide as under:
Each child up to 6 years of age to get 300 calories and 8-10 grams of
protein
Each adolescent girl to get 500 calories and 20-25 grams of protein
Each pregnant woman and each nursing mother to get 500 calories and
20-25 grams of protein
Each malnourished child to get 600 calories and 16-20 grams of protein
Have a disbursement centre in every settlement. "
When the state and central governments did not comply, the SC was
compelled to pass further orders on October 7, 2004, directing the
Government of India to increase the number of ICDS centres to cover 14
lakh habitations. This would mean starting at least 7 lakh additional
centres as a minimum requirement to universalise the ICDS. The same
order recommended the increase of the allocation of "rupees one per
child per day" to "rupees two per child per day", with the
central and state governments contributing one rupee each.
The same interim order also directed the government to make "earnest
effort to cover the slums under ICDS" and ensure that all SC/ST
habitations got an anganwadi "as early as possible". The SC also
categorically banned the use of contractors for providing supplementary
nutrition and directed the Government of India and all states and union
territories to use local women's self-help groups and mahila mandals
to supply the supplementary food distributed in anganwadi centres.
Similar detailed interim orders have been passed for virtually every
scheme that falls in the ambit of the case. The scope of judicial
intervention on the right to food has thus been considerably enhanced
through the interventions of the Supreme Court.
Simultaneously, the campaigners and individual citizens have started
approaching High Courts across the country on matters related to the
right to food and the lack of compliance by state governments with the
interim orders of the SC. Having secured significant policy changes at
the national level, the focus has moved to legal interventions on
implementation.
In an interim order of October 29, 2002, the SC had directed that the
"Chief Secretaries" of the concerned states would be held
responsible for any persistent default in compliance with orders. This
had led to some ambiguity, with the Delhi and Rajasthan High Courts
refusing to entertain petitions pertaining to violations at the state
level since the SC was monitoring the schemes. In another order, the SC
invoked the procedure of the DK Basu protocol for the right to food and
stated that:
"Failure to comply with the requirements herein above mentioned shall
apart from rendering the official concerned liable for departmental
action also render him liable to be punished for contempt of court and
the proceedings for contempt of court may be instituted in any High
Court of the country having territorial jurisdiction over the matter."
The status of the interim orders
In an interim order of May 8, 2002, the SC also put in place an
independent mechanism-the Commissioners of the Supreme Court-to
ensure compliance by the state and central government with the orders
of the court. This is not the first time the SC has put in place such a
mechanism, but it is the first instance in the context of the right to
food.
The Commissioners submit bi-annual reports to the SC. Six reports
highlighting non-compliance, structural issues regarding hunger, and
the hurdles in implementation have been submitted to the SC so far. The
SC then asks the state and central governments to respond to the issues
raised by the Commissioners.
The Commissioners are also empowered to move contempt of court charges
against chief secretaries and other senior state/ central government
officials when the non-compliance is wilful and deliberate. The
Commissioners have appointed Joint Commissions of Enquiry (JCEs) with
representatives nominated both by the Commissioners and the government,
to enquire into charges of malfeasance by government officials in food
schemes. JCEs have been commissioned in Chhattisgarh, Assam, West
Bengal and Madhya Pradesh. These enquiries have led to the dismissal of
a few officials, departmental enquiries against some, and suspension
from service for others. They have also led to grievances about the
implementation of food schemes being addressed.
The Commissioners operate through a network of honorary state and
national advisers to monitor the progress of the food schemes, suggest
reforms in the laws, policies and programmes pertaining to the Right to
Food, and, wherever necessary, get directions from the SC and have
action taken against erring state/ central government officials.
In the five years since the Right to Food Case was admitted in the
Supreme Court, many milestones have been achieved, but the journey
ahead is much longer than the path traversed so far. For example, the
interim orders have resulted in the Government of India sanctioning
1.88 lakh additional ICDS centres so far, with a sanction of another
lakh expected soon.
At the macro level the budget of the ICDS has gone up nearly three
times from Rs 1,500 crore in 2003-04 to almost Rs 4,000 crore for
2006-07. Many state governments have been galvanised into action and
the ICDS has been the focus of discussions for the National Advisory
Committee of the UPA government. The interim orders on the ICDS have
also brought together many sections of civil society. The Hyderabad
convention on the Children's Right to Food and subsequent action by
local groups reflect some of the newer forms of mobilisation on this
issue.
But these significant changes in the ICDS are inadequate when compared
to what needs to be done to make the services universal. The Government
of India took almost three years to act on the interim orders.
Consequently, very few of the 1.88 lakh new anganwadi centres have
become operational in the states. Even when the government did act, it
chose to contest the figure for making the programme universal. It has
still not agreed, as its correspondence with the Commissioners of
January 23, 2006 shows, to a minimum of 14 lakh anganwadi centres.
After an intervention by the Commissioners, the matter is now
sub-judice in the SC.
Most state governments continue to retain contractors and have not
decentralised the provision of supplementary nutrition to women's
self-help groups despite the unambiguous orders. The battle against the
contractor lobby is likely to continue for some time even as they
innovate ways to retain their interests in the ICDS. The Commissioners
have pointed out in a note to the SC, discussed at the July 17 hearing
at the SC, that the new norms proposed by the Government of India in
fact go against the principle of decentralisation.
Despite the odds, the Commissioners office and the legal team have got
the overwhelming support of civil society organisations. This support
adds strength to their intervention and it is special because working
on the details of government programmes has not been a significant area
of work for many of these organisations.
Compliance with SC orders has been strongest where local mobilisation
has been successful. This has reaffirmed the limited role that legal
action on its own can play in securing rights. It has also
re-established the strength of mobilising people to assert their
rights. The right to food is a political issue that can be resolved
only through political means and will not lend itself only to a legal
solution. However, this case has also established the ways in which the
law can be a facilitator and a catalyst. This, amongst others, may be
one of the lasting contributions that the Right to Food Campaign in
India will make to the rights discourse in India.
(Biraj Patnaik is the Principal Adviser to the Commissioners of the
Supreme Court. The views expressed in this article are his own and do
not reflect the formal position of the Office of the Commissioners or
the Right to Food Campaign.)