RIGHT TO BASIC NEEDS AND WELFARE

"The people of Kalahandi, in order to save themselves from starvation deaths, are compelled
to subject themselves to distress sale of labour on a large scale resulting in exploitation of
landless labour by the well-to-do landlords. It is alleged that in view of distress sale of labour
and paddy, the small peasants are deprived of the legitimate price of paddy and they
somehow eke out their daily existence. Further, their case is that being victims of chill
penury, the people of Kalahandi are sometimes forced to sell their children the starvation
deaths of the inhabitants of the districts of Koraput and Kalahandi are due to utter negligence
and callousness of the administration and the Government of Orissa. It is alleged that the
starvation deaths, drought, diseases and famine have been the continuing phenomena in the
said two districts since 1985." From the judgment of Mr Justice M.M. Dutt (Mr Justice K.N.
Saikia concurring) in Kishen Pattanayak v. State of Orissa1.
The issues raised in the above extracted two writ petitions are easily the most compelling and
urgent concerns for any civilized human society. The predicament of human beings facing the
prospects of starvation death, distress sale of crops, labour and even children, and the
helplessness of those who are unable to organise the minimum basic necessities of life is too
grim a reality for any kind of detached debate. Ordinarily one expected that the happenings
narrated in the petitions ought to have triggered off a serious political and social storm that
would compel the administration to undertake a detailed critical examination of the relevant
social reality and follow it up with appropriate relief action. Alas, despite reasonably spirited
media and political exposures of the happenings in Orissa during the relevant period the
administrative response was more or less evasive and careless. Even the last resort action of
the petitioners preferring a public interest petition before the Supreme Court failed to produce
any satisfactory answer for these reasons. First, the court took over three years in finally
disposing of the petition despite Justice P.N. Bhagwati's first order dated December 5, 1985
in which he had directed that "The Writ petition shall be placed on for hearing and final
disposal on 4th February, 1986" Second, the court proved just a shade better than the
administration in conceding that the people in the districts concerned were very poor and
most of them have been living below the poverty line. Also that "the happening of one or two
cases of starvation deaths cannot altogether be ruled out" (the administration as well as the
District Judge appointed by the Supreme Court to enquire about the allegations had flatly
denied starvation deaths but accepted the fact of death due to 'old age' and progressive
malnutrition). Third, the court came all out in the defence of the administration by arriving at
a conclusion that there was no reason to doubt that adequate measures were being taken for
the purposes of mitigating hunger, poverty and starvation deaths and, therefore, no specific
relief under the petition was called for. Thus, with the decision of the Supreme Court ended
the much published journey of the Food Petitions, without even carefully examining the
contours of the human predicament, without properly assessing the import of the petitioner's
claims and without addressing itself to the existential realities of the system. Why was all this
possible? Why the court took an inordinately long time in disposing of the petitions, thereby
implicitly acquiescing in the dilatory tactics of the administration? Why despite Justice P.N.
Bhagwati's appreciation in the earlier order in "the same case that "no one in this country can
be allowed to suffer deprivation and exploitation and particularly when social justice is the
watch word of our Constitution" no positive obligation could be read on the part of the
1
1989 Supp 1 SCC 258. Hereinafter referred to as the Food Petitions.
administration. Why even after forty years of Independence the court failed to give a new
lead in the direction of a socially relevant human rights jurisprudence? are some nagging
questions thrown up by the petitions and the decision. However, the main purpose of
referring to these petitions here is not to write an elaborate critique of the administrative and
judicial responses, but to bring into sharper focus the hitherto ignored theme of
constitutionality of basic human needs: Does the Indian polity recognise any or all of the
human needs? What existing constitutional provisions can be invoked for securing the basic
human needs? What has been the track record of the State agencies, particularly the judiciary,
in recognizing and securing the basic human needs?
A. The Concept of Basic Human Needs
Satisfaction of human needs is widely accepted as a characteristic of any just society.
However, in view of the stages of development and ideological preferences there may be
marked difference between one society and another on the issue of perception of human
needs, priorities of human needs and the techniques deployed for securing them. Though
human needs issues have been traditionally explored by disciplines like Economics, Political
Science, Anthropology and Psychology but in recent times human need have started
receiving the attention of legal scholars, who have made human needs their starting points for
more meaningful enquiries in the fields of human rights, social justice, individual liberty,
equality, etc. In this context the food need has acquired a distinct status in some of the recent
researches and studies in the field of International Law and Jurisprudence
(i) Identification of Human Needs
Human need, urge or drive may be understood as a physiological, or social requirement of the
body or the mind which is considered essential for the maintenance of human life. In respect
of physiological or homeostatic needs the biological sciences are more unanimous in
producing scientific information regarding the essential needs relating to general hunger and
specific food appetites, thirst, respiration, constant internal temperature and sleep, rest after
fatigue and work after rest, etc. In a recent study David Braybrooke has described the bodily
needs as needs based on physical functioning and listed the need to have life-supporting
relations with environment on the top, followed by the need to food and water, the need to
excrete, the need for periodic rest (including sleep) and the need to keep the body intact in
other ways.
The identification of social, learnt or acquired human needs proves much more problematic
and controversial, not only because such needs are strongly influenced by ideological
considerations but also on account of a close association of such needs with subjective
preferences and abilities. Furthermore, as understood by the Marxists these needs can either
be 'true' or 'false', depending upon the level of critical examination. However, despite such
disagreements and controversies it is still possible to broadly identify need for
companionship, education, social acceptance and recognition, sexual activity, freedom from
harassment and recreation, etc. as prominent 'social function' needs. Karl Marx used the term
species needs to describe these needs, which according to him include primarily the need for
solidarity relations (companionship and communication) and need to perform productive
work. Some of the recent writings on social needs have emphasised equality, access to justice
and removal of social stigma like untouchability as the prominent aspects of social
needs. The latest addition in the catalogue of social needs is the right or the need to
development, which is described as the key need that subsumes many others.
(ii) Prioritizing Human Needs
Any programme of social action based on human needs has to arrange the vast variety of
needs in some kind of ranking order. The idea of labelling certain human needs as basic and
the rest as non-basic implies resort to a ranking order. The arrangement of needs according to
rank involves not only a better identification but also fixing of social priorities for the various
human needs. The concept of basic human needs involves drawing a list of foundational or
essential human needs of, both, physiological as well as social import and, in a way, arrive at
a list of bare minimum human needs. One of the earliest thinking about basic human needs
was given by Buddhism which described basic needs of a person resigned to ascetic order
as chatupachhayaya that included within its
fold Pindpat (Food), Chivar (clothes), Senasan (shelter) and Gilanapachhaya-Bheshajya
Parikhhara (medical services).
The United Nations has identified the following list of basic needs:
1. Nutrition
2. Shelter
3. Health
4. Education
5. Leisure
6. Security (physical safety and economic security)
7. Environment
Similarly, the International Labour Organisation has included in their scheme of material
basic needs certain minimum levels of private consumption of food, clothing and shelter and
access to certain essential services, such as pure water, sanitation, public transport and health
and educational facilities. Thus, the very trend of identifying basic needs involves preferring
certain needs over others by placing them in some kind of priority order.
However, in some societies even the actualization of these basic human needs poses serious
resource and political problems. There are societies that lack resources for providing all the
basic needs at a time. The question arises which basic need is to be preferred over others?
Similarly, there is a strong viewpoint that is opposed to the State or the International agencies
taking up the task of fulfilling all the basic needs: Will it not lead to a undesirable
dependency and unreasonable assumption of power on the part of the State? Which of the
basic needs can be fulfilled without such undesirable side-effects? Perhaps the best answer to
some of these issues can be found in the writings of Abraham Maslow and Christian
Bay. Maslow was the first to propound a theory of hierarchy of human needs and the
mechanism of the emergence of a higher need only after a reasonable satisfaction of the
lower needs. Similarly, Bay says "New and higher" motives are born only as more basic and
essential motives receive satisfaction and the individual takes their satisfaction for granted!
The views of Maslow and Bay find ample support in the alienated lives of the poorest
sections of our society for whom many higher social needs and desires remain, by and large,
meaningless.
The idea of prioritizing human needs has assumed special significance in the wake of
widespread hunger and starvation — an indicator of unfulfilled food need. It is true that food
need might no more be a serious social problem for many of the developed societies. In the
words of Professor Conrad "Issues of basic needs are no longer pressing in the West. In the
affluent societies no one dies from starvation involuntarily. The prayer for "daily bread" lacks
existential earnest — we know that, at the latest, the social welfare office will provide us with
the daily bread, if on a measured scale". But in the underdeveloped societies and the
underdeveloped regions of the developed societies the problem of maldistribution is still
leaving many deprived of even food need. Perhaps this is because the exploiting sections of
the society know fully well that the fear of hunger and its associated conditions is the best
means for keeping the exploited sections under control: they most easily agree to become
bonded labour, sell their children, and agree to act as organ donors, only when the threat of
hunger and starvation looms large.
(iii) Relating Basic Needs to the 'Dehumanised' Population
Talking of basic human needs at abstract level serves little practical purpose. The fact of the
different sections of the vulnerable population suffering on account of diverse
disabilities requires matching particular basic need with the relevant dehumanised
population. In this way basic need discussions and actions can be related to a specific weaker
section like the Scheduled Castes, tribals, landless labour, bonded labour, slum-dwellers,
women and children, etc., and the available resources deployed in caring for the needs of the
most 'needy' groups.
Though the social categorisation of the 'needy' on the basis of caste, landlessness, working
class, gender and juvenile status may prove a useful criteria for fulfilling basic needs of
particular type such as the need to remove social stigma and access to social resources in case
of Scheduled Caste or women, etc., but the criterion of poverty line provides a generally
acceptable basis. It can be assumed safely that the below poverty line population would also
suffer for want of multifarious needs. According to the official estimate, in 1981 the below
poverty line population was 317 million, which could be further classified into five levels of
poverty on the basis of their income standing. Of these the lower four levels that comprised
150.7 million could be described as the destitute population. It is this destitute population that
could be described to be in subhuman level of existence. The basic needs of this section of
population, particularly the lower level basic needs that Maslow described as Physical
(biological) needs — air, water, food, sex, etc., deserve unconditional priority not only as a
subjective existential condition but also as a precondition for a civilised social order
B. Constitutional Foundations of Basic Human Needs:
The Constitution provides not only a legal framework for the distribution of powers and
privileges amongst the different sections of the society, but also the value code for guiding
the distribution of such powers Such a pre-pondering role of Constitution impels the
individuals and groups, desirous of buttressing their claims to the diverse social resources, to
invoke the constitutional authority. As understood traditionally the benefits flowing from the
constitutional guarantees are primarily enjoyed by the privileged sections of society, for
whom the Constitution is a very important resource for legitimizing and augmenting their
interests. However, in recent times, with the alterations in the dynamics of political and social
power and the changes in social consciousness, the constitutional resource is being
increasingly claimed by the underprivileged and the powerless sections. This tendency has
inaugurated an era of new constitutional debate and extensions. Presently we shall be
concerned with the debate relating to constitutionality of basic needs and focus mainly on the
three major aspects, namely (i) Hierarchy of Rights, (ii) Basic Needs as aspects of Equality,
and (iii) Basic Needs as essence of Perambulatory Resolve.
(i) Hierarchy of Rights
Those acquainted with the history and developments of legal rights would have little
difficulty in appreciating that over a period of time certain categories of individual claims or
interests received far greater recognition and protection from the legal system than the vast
majority of other claims. Usually the preferred claims were closely associated with the
property interests and the political status of the claimant. For whatever reason such uneven
developments in the arena of legal rights lead to a situation are aptly described by Wendy K.
Mariner in these words: "The result has been to divide human concerns into two highly-
unequal spheres — one for a few political and personal liberties, and a second for all other
values. The first sphere of fundamental rights enjoys special insulation from majoritarian
decision making, while interests in the second, much larger sphere, remain subject to any
form of restriction that is not patently and cruelly arbitrary." The Indian Constitution seems to
have accepted the same type of dichotomy between the Fundamental Right and the Directive
Principles of State Policy, by providing for two different types of treatments for them. There
are several scholars who subscribe to the view that the Fundamental Rights deserve primacy
over the Directive Principles. Such a view accords with Ronald Dworkin's distinction
between "background rights" and "institutional rights". The distinction between the two types
of rights is that the background rights are merely justification of political decision by society
in abstract, while the institutional rights are concrete rights and can be enforced at the
instance of the right claimant. However, in the typology of rights, Professor Amartya
Sen prefers to add yet another tier which he describes as a metaright. According to Sen the
focus of metaright is pursuit of policies that would make the achievement of an abstract right
possible. Sen prefers to describe the Directive Principles as abstract background metarights
only, thereby relegating them further down in the hierarchy of rights. However, Sen adds yet
another legal concept, namely entitlements, that is useful for basic needs debate. Sen argues,
"Most cases of starvation and famines across the world arise not from people being deprived
of things to which they are entitled, but from people not being entitled, in the prevailing legal
system of institutional right, to adequate means for survival." Entitlements are the totality of
things a person can have by virtue of his rights, which in turn depends upon the legitimised
process of acquiring goods under the relevant system.
How do basic human needs fare in the hierarchy of rights under the Indian legal system?
What is the import of the recognition accorded to certain basic needs in the Directive
Principles?
The orthodox legal rights approach entertains serious reservations in according rights status
to basic needs, mainly for the following reasons. First the rights imply an autonomous and
fully capable agent, while basic needs relate to those sections who can hardly be described as
capable or autonomous. Second, rights are generally understood in the negative sense as
absence of constraint or interference by others, while basic needs call for positive action or
interference with a view to securing them. Third, rights usually relate to political and property
interest, while basic needs mainly concern interests of economic and social nature. Without
undertaking a detailed examination of these reasons, it is suggested that neither rights are
always what the orthodox view projects them nor the difference between basic needs and
rights so irreconcilable. When and what basic needs get transformed into rights depends upon
the prevalent legal and political consciousness.
The current basic needs and rights debate can draw some insights and clues from the works of
Professor P.K. Tripathi on the subject. Prof Tripathi's one of the earliest writing on the
Fundamental Rights and the Directive Principles relationship theme has the following pithy
observation: "Just as the fundamental rights were proclaimed to free man from the personal
shackles perpetrated by a feudal system, so, the directive principles were acknowledged and
posited to protect man from the antipode of economic enslavement in which the capitalist
system would inevitably plunge him through an unrealistic and blind emphasis on the
fundamental rights themselves. Coming as they do, chronologically, after the fundamental
rights the directive principles are meant to solve the very problem created by the age of
fundamental rights: they set the limits to the application of the fundamental rights: they
define those 'rights' anew, in the light of new experience and in terms of new
needs." (emphasis supplied) The observation brings out two things distinctly. First, at one
level the Fundamental Rights and the Directive Principles relationship is conflict-oriented.
Second, by giving socially relevant interpretation to the Fundamental rights and accepting the
possibility of adding new rights the area of conflict can be meaningfully reduced. Taking the
cue from Professor Tripathi's view, is it not possible to argue out that the process of
transforming basic needs into rights is an ongoing one, particularly in cases of societies
where there exists a wide gap between the right-holders, on the one hand, and the need-
seekers, on the other?
(ii) Basic Needs as Aspects of Equality
The Article 14 guarantee of "equality before the law or the equal protection of the laws" is
generally thought to require government to treat similarly circumscribed individuals in a
similar manner. The essence of this provision is, like persons are to be treated alike, but it
does not guarantee equal treatment for all persons. The equality guarantee may be invoked in
all cases of unequal access to certain basic needs relating to food, shelter, health care,
education, etc. However, since the guarantee of equality permits reasonable classification
amongst persons the benefit of equality guarantee would get limited to those cases alone in
which arbitrary or unreasonable classification is resorted too.
Founding basic need claims on equal protection clause is already a fertile area of
constitutional debate in the United States. Equality clause is deployed to claim a better
distribution of medical care, education, social security, etc. benefits. The essence of such
constitutional actions is to show the denial of a benefit of fundamental nature or in a manner
that is arbitrary or unreasonable. Thus, in Plyler v. Doe the Court struck down a statute
barring the children of illegal aliens from public education. The court accorded to public
education a special status: "Public education is not a right" granted to individuals by the
Constitution. But neither it is merely some governmental 'benefit' indistinguishable from
other forms of social welfare legislation. This way the court took opportunity to strike down
the statute for want of some "substantial" and "rational" State goal, thereby rendering the
classification as suspect. However, in cases of medical care the courts have been reluctant to
strike down the legislation, on the basis of equality clause, merely on the ground that the
classification produces hardship or unfairness to the individuals who are dissimilarly placed
in terms of their social and economic standing or ability. The failure of the traditional
equality clause to provide justice in many cases has led to a search for a new equality
approach. The second approach is elaborately discussed by Frank I. Michelman, who views
inequality not as a form of discrimination but a deprivation. In this way the concept of
equality would require not equal terms of access but adequate means of access. According to
this approach government that fails to provide means treats its citizens unequally. The
essence of Michelman's approach is that effective participation in the political process is
impossible unless one is adequately fed, clothed, and housed and in sound physical and
mental condition and where people lack the basic means, the State treats them unequally.
Michelman's approach to equality can substantially augment the basic needs cause.