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The right to food

By Biraj Patnaik

The Right to Food Campaign has succeeded in placing hunger at the centre of development discourse in India. The campaign hopes that this long-running 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 case and the accompanying campaign have established the importance of the law as facilitator, but the right to food also requires political means and people's participation

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:

  1. Each child up to 6 years of age to get 300 calories and 8-10 grams of protein
  2. Each adolescent girl to get 500 calories and 20-25 grams of protein
  3. Each pregnant woman and each nursing mother to get 500 calories and 20-25 grams of protein
  4. Each malnourished child to get 600 calories and 16-20 grams of protein
  5. 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.)

InfoChange News & Features, October 2006