THE NATIONAL LAW INSTITUTE UNIVERSITY

BHOPAL

CONSTITUTIONAL LAW II

FOURTH TRIMESTER

PROJECT ON

RIGHT TO FOOD: A FUNDAMENTAL RIGHT?

SUBMITTED TO SUBMITTED BY

Prof.(Dr.) MOHD. MOIN MUSTAZHAR NIMISHA JHA

ROLL NO.: 2009BALLB01

ENROLMENT NO.: A-0863

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 TABLE OF CONTENTS

INTRODUCTION..................................................................................................................03

RIGHT TO FOOD: IMPORTANCE...................................................................................04

RIGHT TO FOOD: INTERNATIONAL SCENARIO.......................................................08

RIGHT TO FOOD: INDIAN SCENARIO..........................................................................10

THE POSITION OF RIGHT TO FOOD UNDER PART III AND PART IV OF

THE CONSTITUTION.........................................................................................................13

VARIOUS GOVERNMENT PROGRAMMES FOR ERADICATING

POVERTY: A CRITICAL ANALYSIS..............................................................................16

RIGHT TO FOOD BILL: A CRITICAL ANALYSIS...........................................19

THE JUDICIAL PRONOUNCEMENTS................................................................22

RIGHT TO FOOD: THE CONTEMPORARY SCENARIO............................................24

CONCLUSION: RIGHT TO FOOD IS A HUMAN RIGHT............................................27

BIBLIOGRAPHY..................................................................................................................30

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 INTRODUCTION

“In a world overflowing with riches, it is an outrageous scandal that more than 1 billion
people suffer from hunger and malnutrition and that every year over 6 million children die of
starvation and related causes. We must take urgent action now.”
Jean Ziegler, January 2010

Right to adequate food is a human right, inherent in all people, to have regular, permanent
and unrestricted access, either directly or by means of financial purchases, to quantitatively
and qualitatively adequate and sufficient food corresponding to the cultural traditions of
people to which the consumer belongs, and which ensures a physical and mental, individual
and collective fulfilling and dignified life free of fear.

The human right to food has its contemporary origin within the U.N. Universal Human
Rights framework. The main reference point is located within the Universal Declaration of
Human Rights (UDHR) (U.N. 1948), Article 25, which states, “Everyone has the right to a
standard of living adequate for the health and well-being of himself and his family, including
food.” It provided a reference point for human rights legislation that followed but is not itself
a binding international legal instrument. 

The right to food has been gaining in developing countries. Right to food advocates recognize
that the right to food cannot be achieved overnight in developing countries. Thus advocates
and the emerging legal framework place great importance on two concepts- progressive
implementation and voluntary guidelines. Brazil has been a leader in implementing the right
to food.

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 RIGHT TO FOOD: IMPORTANCE

The right to food is a human right. It protects the right of all human beings to live in dignity,
free from hunger, food insecurity and malnutrition. The right to food is not about charity, but
about ensuring that all people have the capacity to feed themselves in dignity.

The right to food is protected under international human rights and humanitarian law and the
correlative state obligations are equally well-established under international law. The right to
food is recognized in the Universal Declaration on Human Rights and the International
Covenant on Economic, Social and Cultural Rights (ICESCR), as well as a plethora of
other instruments. Noteworthy is also the recognition of the right to food in numerous
national constitutions.

UN experts and agencies, as well as several NGOs have repeatedly pointed out that the
current political economy of food fails to protect the most in need in society.

Recently, three concomitant crises – the food, economic and environmental one – reinforced
this argument. Statistics clearly highlight that existing inequalities between the world’s
regions and the vulnerability of the poorest members of developing countries are deepening.

Many women, men and children affected by chronic undernourishment suffer from what the
FAO calls ‘extreme hunger’. This means that their daily ratio of calories is well below the
minimum necessary for survival. Many people die on a daily basis from starvation.

Malnutrition, also called the ‘hidden hunger’, refers to deficiency of calories, proteins or
nutrients. Thus, malnutrition necessarily encompasses undernourishment; however it
stretches beyond the latter since it might be that a person receives enough calories but not
enough nutrients. Malnutrition is quieter than famine, in the sense that it does not attract the
attention of the media for example; nonetheless it has no less tragic implications for those
suffering of this disease.

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Malnutrition heightens vulnerability to other illnesses and almost always has serious physical
and mental effects – the lack of brain cell development, inadequate growth. Serious
malnutrition can also be hereditary, as many malnourished mothers give birth to
malnourished babies. A vicious circle ensues.

As a consequence of the food crisis, world leaders and public opinion seem to have finally
acknowledged that agriculture cannot be continuously neglected and that the underinvestment
trend of the last 30 years must be reversed.

Indeed, if followed by articulated and targeted action such commitment can bridge the de jure
stipulations on the right to food and the de facto tragic realities.

It is a statistical fact that already before the skyrocketing of the food prices and the economic
recession most households under the extreme poverty line were to be found in rural areas. 7
out of every 10 poor individuals lived in a household where agriculture represented the main
occupation of the head, and lower average incomes among these households is a constant
pattern across all regions and countries (WB, Global Economic Prospects, 2009).

Hence, investment in agriculture if targeted to address the needs of this particular group of
people can have real and significant effects in terms of realizing the right to food.

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 TIMELINE OF THE DEVELOPMENT OF
RIGHT TO FOOD

1948: Universal Declaration of Human Rights recognises in Article 25 that "Everyone has
the right to a standard of living adequate for the health and well-being of himself and of his
family, including food, clothing, housing and medical care and necessary social services, and
the right to security in the event of unemployment, sickness, disability, widowhood, old age
or other lack of livelihood in circumstances beyond his control."

1966: International Covenant on Economic, Social and Cultural Rights (ICESCR)

reiterates the Universal Declaration of Human Rights with regards to the right to an adequate
standard of living, including food, and specifically recognises the right to be free from
hunger.

1976: ICESCR comes into force.

1993: Human Rights Congress in Vienna, establishment of the Office of the High
Commissioner for Human Rights.

1993: International Food Security Treaty (IFST) developed in USA and Canada.

1996: World Food Summit.

1998: Conference on Consensus Strategy on the Right to Food held in USA.

2000: Special Rapporteur on the Right to Food, Mr. Jean Ziegler, was appointed.

2001: As a response to the World Food Summit: Five Years Later in 2001, the Food and
Agriculture Organization of the United Nations set up an intergovernmental working group
for the drafting of voluntary guidelines to assist states to achieve the progressive realization
of the right to food.

2001: African Commission on Human and Peoples' Rights recognizes the right to food
under African Charter on Human and Peoples' Rights.

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2002: Special Rapporteur on the Right to Food, country mission to Niger.

2003: Special Rapporteur on the Right to Food, country mission to Brazil.

2004: The Voluntary Guidelines to Support the Progressive Realization of the Right to
Adequate Food in the Context of National Food Security.

2004: Special Rapporteur on the Right to Food, country mission to Bangladesh and
Occupied Palestinian Territories.

2005: Special Rapporteur on the Right to Food, country mission to Ethiopia and
Mongolia.

2006: Special Rapporteur on the Right to Food, country mission to Guatemala, India,
Niger and Lebanon.

2007: Special Rapporteur on the Right to Food, country mission to Bolivia and Cuba.

2008: Special Rapporteur on the Right to Food, Mr. Oliver De Schutter, was appointed.

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 RIGHT TO FOOD: INTERNATIONAL SCENARIO

As authoritatively defined by the Committee on Economic, Social and Cultural Rights

(Committee on ESCR) in its General Comment 12

“The right to adequate food is realized when every man, woman and child, alone and in
community with others, has physical and economic access at all times to adequate food or
means for its procurement” (General Comment 12, 1999, para6).

Inspired by the above definition, the Special Rapporteur has concluded that the right to food
entails:

“the right to have regular, permanent and unrestricted access, either directly or by means of
financial purchases, to quantitatively and qualitatively adequate and sufficient food
corresponding to the cultural traditions of the people to which the consumer belongs, and
which ensures a physical and mental, individual and collective, fulfilling and dignified life
free of fear.” (A/HRC/7/5, para17).

It is generally accepted that the right to food implies three types of state obligations - the
obligation to respect, protect and to fulfil. These types of obligations were defined in General
Comment 12 by the Committee on ESCR and endorsed by states, when the FAO Council
adopted the Right to Food Guidelines (Voluntary Guidelines) in November 2004.

Under Article 2(2) of the ICESCR, governments agreed to guarantee that the right to food
will be exercised without discrimination on grounds of race, colour, sex, language, age,
religion, political or other opinion, national or social origin, property, birth or other status.
The principle of non-discrimination is a cardinal principle of international law. It plays a
major role in the full realization of the right to food not only at normative level, but also at
practical level. As such, the Voluntary Guidelines recommend establishing food insecurity
and vulnerability maps and the use of disaggregated data to identify:

“any form of discrimination that may manifest itself in greater food insecurity and
vulnerability to food insecurity, or in a higher prevalence of malnutrition among specific
population groups, or both, with a view to removing and preventing such causes of food
insecurity or malnutrition.” (Guideline 13)

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The General Comment 12 of the ICESCR, states:

“The right to adequate food is realized when every man, woman and child, alone or in
community with others, have the physical and economic access at all times to adequate food
or means for its procurement.”

Thus, identification of vulnerable, disadvantaged and marginalized groups and action towards
removing the factors determining vulnerability are paramount towards the realization of the
right to food.

In 2002, the Committee on ESCR elaborated General Comment 15 on the right to water. In
the words of the Committee: “the right to water is a prerequisite for the realization of other
human rights” (para1). Perhaps, the intrinsic link between the right to water and the right to
adequate food is nowhere as evident as in the case of peasant farmers. It is crucial to ensure
sustainable access to water resources for agriculture in order to realize the right to food. The
Committee stresses the special attention that should be given in this context to disadvantaged
and marginalized farmers, including women farmers (para7).

In November 2009, at the World Food Summit state leaders agreed:

“to work to reverse the decline in domestic and international funding for agriculture and
promote new investment in the sector, to improve governance of global food issues in
partnership with relevant stakeholders from the public and private sector, and to proactively
face the challenges of climate change to food security.”

Universal Declaration of Human Rights recognises in Article 25 that "Everyone has the
right to a standard of living adequate for the health and well-being of himself and of his
family, including food, clothing, housing and medical care and necessary social services, and
the right to security in the event of unemployment, sickness, disability, widowhood, old age
or other lack of livelihood in circumstances beyond his control."

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 RIGHT TO FOOD: INDIAN SCENARIO

India is a subcontinent and the seventh-largest country with a geographical area of 3.3 million
square km. It covers 2.4 percent of the world’s land area, and is home to 15 percent of the
world’s population counting more than a billion people. India borders Pakistan to the west;
China, Nepal, and Bhutan to the north-east; and Bangladesh and Myanmar to the east. It is
bounded by the Indian Ocean on the south, the Arabian Sea on the west, and the Bay of
Bengal on the east.

India has a varied terrain with upland plain (Deccan Plateau) in the south, flat to rolling
plains along the largest river Ganges, deserts in the west and Himalayas, the highest mountain
range in the world, in the north.

Indian civilization goes back to more than 5000 years. The Republic of India, which attained
freedom on 15th of August 1947 from more than 150 years (1776-1947) of British rule, is a
union of 28 States and seven centrally administered Union Territories. The modernisation
associated with industrial revolution benefited India during the British rule at the cost of
collapse of traditional industry and flooding of Indian markets with cheap British goods.

Severe famines were attributed to shortfall of rain and British economic policies that forced
farmers to work on Indigo plantations, restrictions on internal trade, inflationary measures
that increased the price of food, and substantial exports of staple crops from India to the
United Kingdom.

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According to World Bank's HNP (Health and Nutrition) paper "India's Undernourished
Children", here is some data on the scale of the problem India faces:

1. 47% of Indian children under 5 suffer from malnutrition.

2.60 million in all, highest in the world.

3. Two million Indian children under 5 die each year.

4. At least one million of them die from low immunity attributable to malnutrition.

5. Ten million children out of the statistical range a year suffer from lack of motor and
cognitive skills for the rest of their lives.

6. Most of the retardation occurs between two to three years of age.

In 2008, Indian Planning Commission member Syeda Hameed acknowledged that India is
worse than Bangladesh and Pakistan when it comes to nourishment and is showing little
improvement.

Speaking at a conference on "Malnutrition an emergency: what it costs the nation", he said

even Prime Minister Manmohan Singh during interactions with the Planning Commission has
described malnourishment as the "blackest mark". "I should not compare. But countries
like Bangladesh, Pakistan and Sri Lanka are better," he said. The conference was organized
last year by the Confederation of Indian Industry and the Ministry of Development of North-
eastern Region.

According to India's Family Health Survey, almost 46 percent of children under the age of
three are undernourished - an improvement of just one percent in the last seven years. This
is only a shade better than Sub-Saharan Africa where about 35 percent of children are
malnourished.

India has recently been described as a "nutritional weakling" by a British report.

Among the developing countries ranked by NGO Action Aid for Hunger, India, which
receives the lowest possible E (essentially an F) grade for hunger. It says 30 million Indians
have been added to the ranks of the hungry since the mid-1990s and 46% of children are
underweight.

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India has ratified the following international law relevant for the right to food: ICESCR (10
April 1979), ICCPR (10 April 1979), CEDAW (9 July 1993), CRC (11 Dec. 1992).

The Indian Supreme Court stated that all national courts must apply the international human
rights norms when they decide on human rights violations. According to the Supreme Court,
national courts must interpret domestic laws in accordance with the international obligations
of the Government, and they must base their decisions directly on international human rights
law when it provides a better protection for the victims. In a recent case on the right to food,
the Supreme Court stated that: “The provisions of the covenant (on economic, social, and
cultural rights), which elucidate and go to effectuate the fundamental rights guaranteed by
our Constitution, can certainly be relied upon by courts as facets of those fundamental rights
and hence, enforceable as such...”1

The right to food can be seen from at least three different perspectives.

One is the perspective of the Indian Constitution, including the Directive Principles of State
Policy.

Secondly, we can refer to international declarations and conventions on this matter, starting
with the Universal Declaration of Human Rights.

Thirdly, it is possible to argue for the right to food as a moral and social right, independently
of all these documents. Indeed, it is a basic premise of the human rights movement that all
human beings have some fundamental rights, whether or not these rights are already
incorporated in national or international law.

These three perspectives, of course, are not mutually exclusive. In fact, they complement
each other.

1
Supreme Court, People’s Union for Civil Liberties v.Union of India & Ors, 2001.

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 THE POSITION OF RIGHT TO FOOD UNDER
PART III AND PART IV OF THE CONSTITUTION

"The Constitution of India has the right to everything, but in practice, the people have the
right to nothing."

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
fulfilment 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.

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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
justifiable in courts of law.

Whether the right to food has any “teeth” at all, if it is so difficult to define and, so hard to
enforce. It does have a cutting edge, for three reasons:

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First, even if the right to food is not always justifiable, some aspects of the right to food are
amenable to legal enforcement. This is one crucial lesson of the public interest litigation
initiated by the People’s Union for Civil Liberties (Rajasthan) in April 2001with a writ
petition to the Supreme Court. The litigation is far from over, but some useful orders have
already been passed, such as the interim order of 28 November 2001, directing all state
governments to introduce cooked mid-day meals in primary schools. Indeed, this approach
would be highly consistent with the scheme of things initially envisaged by the Constitution.
It is often forgotten that while Article 37 explicitly states that the Directive Principles “shall
not be enforced by any court”, it goes on to stress (1) that these principles are nevertheless
“fundamental to the governance of the country”, and (2) that “it shall be the duty of the state
to apply these principles in making laws”. The application of these prescriptions to the right
to food is potentially far-reaching. Some good work has been done, for instance, on the
possibility of introducing a “framework law” that would translate a wide range of aspects of
the right to food into legal provisions.

The second reason why the right to food does have a cutting edge, even when it is not
enforceable in a court of law, was clearly spelt out by Dr. Ambedkar in his defence of the
Directive Principles. Essentially, he argued that in a democracy, legal action is not the only
means of holding the state accountable to its responsibilities. In cases where rights cannot be
enforced through the courts, they can be asserted through other democratic means, based for
instance on parliamentary interventions, the electoral process, the media, international
solidarity, street action, or even civil disobedience. This process has worked relatively well
with respect to one specific aspect of the right to food – the prevention of famines. As
Amartya Sen has noted, in a democratic political system, allowing a famine to develop would
be political suicide for the party in office. This is the main reason why every threat of famine
in independent India has been boldly dealt with (at least in terms of avoiding excess
mortality).

The third argument for asserting the right to food is that, even when they are not enforceable
in court, economic and social rights can have a profound influence on public perceptions of
who is entitled to what. These perceptions, in turn, can make a concrete difference in diverse
ways. For instance, in situations where the effectiveness of food security programmes
depends on the vigilance of the public, perceptions of rights can matter a great deal.

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 VARIOUS GOVERNMENT PROGRAMMES FOR
ERADICATING HUNGER:
A CRITICAL ANALYSIS

Attaining food security through self sufficiency, social justice and alleviation of poverty has
been the aim of the Government of India since independence. The Government has initiated
and refined an array of policies, programs and schemes to fight hunger and malnutrition, as
well as to attain self sufficiency in food production. There is a number of Acts, relevant in
supporting victims in realising their right to food.

Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989

The Indian Constitution accords special status to the most vulnerable groups of India, namely
the Scheduled Tribes (ST) (Adivasis) and Scheduled Castes (SC). The term Scheduled Tribes
refers to indigenous peoples, a collective term used in India is Adivasi. According to the 2001
Census the SC and ST comprise of 24 % of the Indian Population and struggling for their
survival. Even though the Act focuses on preventing human rights violations it includes also
following paragraphs, which are relevant for right to food and water of vulnerable groups.
However, de facto discrimination remains widespread in India.

The National Rural Employment Guarantee Act 2005

One new instrument by the Indian Government addressed to the rural poor, is the National
Rural Employment Guarantee Act (NREGA). Poverty in rural areas shall be eradicated
through provision of employment as universal and enforceable legal right. The government
advertises NREGA as “an Act to provide for the enhancement of livelihood security of the
households in rural areas of the country by providing at least one hundred days of
guaranteed wage employment in every financial year to every household.” However, 100
days of work is not enough to ensure the food security throughout the year. Since work is
provided in return for wages NREGA does not address the hunger situation faced by those
who cannot work – the old and infirm.

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Mid-day Meals

This is one aspect (perhaps the only aspect) of the right to food that has been significantly
consolidated in India in recent years. The case for providing cooked mid-day meals in
primary schools is very strong. Fifty million children are already covered, making this the
largest nutrition programme in the world by a long margin. With adequate public pressure,
another 50 million children are likely to get on board within a year or so, and the quality of
mid-day meal programmes could also be radically enhanced. This would be no small
achievement at a time of growing abdication of state responsibility for the well-being of
Indian citizens.

Mid-day meals illustrate the three possible roles of the right to food.

To start with, this experience shows the possibility of bringing some aspects of the right to
food within the ambit of legal enforcement. Some commentators are quite unhappy about the
Supreme Court “meddling” with policy issues such as the provision of mid-day meals in
primary schools. Yet, the interim order on mid-day meals seems quite reasonable,
considering that we are dealing here with very basic rights of Indian children (not only the
right to food but also the fundamental right to education), and that the effectiveness of mid-
day meals in furthering these rights is well established. As things stand, the directive on mid-
day meals is only an “interim order”, but there is no reason why mid-day meals should not be
given permanent legal status.

Secondly, the mid-day meal story also highlights the importance of campaigning for
economic and social rights outside the courts, using all democratic means available. Indeed,
had the Supreme Court order on mid-day meals been allowed to take its own course, it is
doubtful that it would have been implemented.

Thirdly, mid-day meals provide another useful illustration of the role of economic and social
rights in shaping people’s perceptions of their entitlements and enhancing their
determination to get their due.

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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.

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 RIGHT TO FOOD BILL: A CRITICAL ANALYSIS

The Union government’s draft Right to Food (Guarantee of Safety and Security) Act insists
on “the physical, economic and social right of all citizens to have access to safe and
nutritious food, consistent with an adequate diet necessary to lead an active and healthy life
with dignity…” The proposed law offers a quantity of cereal at a modest cost each month to a
broad range of beneficiaries: in principle, all those living under the poverty line and a range
of others.

The recognition of a right to food (and therefore to freedom from undernourishment and
hunger) is a landmark measure and deserves great credit. However, there is an imbalance
between the expansive vision expressed by the Act in principle and the narrow means it seeks
to achieve it in practice; reflected, for instance, in its focus only on calories from food grains
and on direct distribution rather than on the provision of means for commanding food and on
complementary policies. It appears that the Act may not add much to the existing Public
Distribution System or State and Central programmes to provide subsidised cereals.

It appears very important to address the poor functioning of the existing system, and to
remedy both the apparent discrepancies across States and the general non-transparency in the
definition of the beneficiaries (in particular, the ambiguities in the understanding of what is a
‘Below Poverty Line’ household). It is also unclear how the Act will be truly rights-based, in
the sense that an individual may make a binding demand for the satisfaction of the right.

Salient features of the Food Security Bill are as follows:

• President Pratibha Patil on June 4, 2009 said that a National Food Security Act would be
formulated whereby each BPL family would be entitled by law to get 25 kg of rice or wheat
per month at Rs 3 a kg, a promise made by the Congress before general elections 2009.

• The draft Food Security Bill would provide 25 kg of wheat/ rice to BPL households at Rs.
3/- per kg. For some, it is just old wine in a new bottle and would rely excessively on existing
infrastructure and logistical support of the public distribution system (PDS).

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• If made into a law, the draft Food Security Bill would reduce the allocation for a below
poverty line (BPL) household (e.g. in the case of Antodaya Anna Yojana) from 35 kg of rice/
wheat per month to 25 kg of rice/ wheat per month.

• There are possibilities of increased food subsidies amounting to Rs. 70,000 crore per annum
if the Bill becomes a law, which might be opposed by those who prefer to follow neo-liberal
doctrine. Subsidies are usually opposed on the pretext of distortion in prices, inefficiency and
leakages. The Interim Budget 2009-10 estimate of the food subsidy bill in 2009-10 was Rs.
42,490 crore.

• The exact number of BPL households may vary according to the definition of poverty line
one selects. In that case, it would be difficult to target the original BPL households under the
new Food Security law.

• According to Prof. Arjun Sengupta who chaired the National Commission for Enterprises
in the Unorganized Sector, 77% of the population of India lives below the poverty line. Dr.
NC Saxena, a retired civil servant acting as a Commissioner appointed by the Supreme
Court, feels that half the country’s population of 1.15 billion is below the poverty line, which
he apparently defines as a monthly per capita income of Rs 700 in rural areas and Rs 1,000 in
urban areas. While a Planning Commission estimate puts the number of below poverty line
(BPL) families at 62.5 million, state governments estimate that this number is closer to 107
million. The World Bank’s figure for the percentage of population below the poverty line in
India is 42 per cent, based on 2005 data.

• Instead of better implementation of the already existing schemes such as the Targeted
Public Distribution System (TPDS), Antodaya Anna Yojana (AAY), Integrated Child
Development Scheme (ICDS), Mid Day Meal Scheme (MDMS) etc., the Food Security law
might make things unduly worse and unnecessarily complicated. A cynical question here
would be: Is the Food Security Bill going to replace all such food related schemes that
existed before its enactment?

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• If the Bill is about ensuring food security, how can it leave those who may not fall below
the poverty line but are already exposed to food insecurity? The Rome Declaration (1996)
made during the World Food Summit states that ‘food security is achieved when all people,
at all times, have physical and economic access to sufficient, safe and nutritious food to meet
their dietary needs and food preferences for an active life’. Food security is about nutrition
security too. If that is the case, the Food Security Bill has to rethink about the quality of food
grains supplied and distributed. The Food Security Bill must also aim at providing fortified
food grains along with edible oils, salt and essential spices. A balanced diet would ensure
both food and nutrition security. The basket of commodities, which would be available to the
consumers, should reflect local tastes and preferences and must include locally grown cereals
and legumes.

• If targeting of BPL households is done under the Food Security Bill, then it might lead to
inclusion (including the non-poor) and exclusion (excluding the poor) errors. It would be
wiser to go for universalization (rather than targeting) as was recommended by the
Committee on Long Term Grain Policy under the chairmanship of Prof. Abhijit Sen (2000-
02).

• There are apprehensions that sustainability of Food Security law would be at peril if India
faces lower agricultural production due to poor harvest, drought etc. in the future. Is India
ready to rely upon food imports and food aid to ensure right to food? At present, the country
has been facing shortage in south-west monsoon rainfall that might affect agricultural
production and prices of commodities.

• Some analysts feel that India presently has adequate buffer stocks to enact and implement
the Food Security law.

• The World Development Report 2008-Agriculture for Development, which has been
brought out by the World Bank mentions that India presently faces the problem of depleting
ground water level that makes agriculture unsustainable and poses risk to environment. If
rice is one of the food grains that would be supplied when the Food Security Act comes into
being, then more and more farmers would go for cultivation of rice. In the Punjab region,
overexploitation of groundwater takes place thanks to the huge subsidies given on electricity.
Moreover, minimum support prices (MSP) for rice increase the financial attractiveness of rice
relative to less water-intensive crops, which makes depletion of ground water table more
obvious.

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 THE JUDICIAL PRONOUNCEMENTS

India has demonstrated a commitment to ensuring food security and to realizing the right to
food by legally establishing a basic nutritional floor for all citizens. In a landmark
interlocutory opinion in the case of People’s Union for Civil Liberties v. Union of India &
Others (PUCL), Writ Petition (Civil) No. 196 of 2001 (India) (Nov. 28, 2001 interim
opinion), handed down on November 28, 2001, the Indian Supreme Court (Supreme Court)
directly addressed food security in the Indian context and explicitly established a
constitutional human right to food in India.

In this watershed order, the Supreme Court not only held that specific government food
schemes constituted legal entitlements under a constitutional right to food, setting out in
detail minimum allocation levels of food grains and supplemental nutrients for India’s poor,
but also outlined how those government schemes were to be implemented.

With its incorporation of economic and social rights into the Indian constitutional framework,
PUCL stands as one of the few instances of effective national adjudication on the right to
food, despite the global food, financial, and environmental crises that currently make food
availability and the right to food increasingly urgent topics. The PUCL order of November
28, 2001, however, stands as merely one historical moment in the progression of this ongoing
trend of Public Interest Litigation (PIL) for the establishment and enforcement of a right to
food in India.

Since 2001, subsequent interim orders for PUCL have served to define gradually, and with
increasing detail, India’s constitutional right to food. While early interim orders mainly
addressed the public distribution of food grains to families and persons falling below the
poverty line, the Supreme Court order of November 28, 2001 critically and expansively
transformed PUCL. In this defining order, the Supreme Court essentially redefined
government schemes as constitutionally protected legal entitlements. The Court not only
identified which food schemes constituted legal entitlements under the constitutional right to
food, but also outlined in detail how those government schemes were to be implemented.

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This order directed the government to implement, in specific manners, the following
food-related schemes:

(1) The Targeted Public Distribution Scheme (TPDS);

(2) Antyodaya Anna Yojana (AAY);

(3) The Mid-Day Meal Scheme (MDMS);

(4) The National Old Age Pension Scheme (NOAPS);

(5) The Annapurna Scheme;

(6) The Integrated Child Development Scheme (ICDS);

(7) The National Maternity Benefit Scheme (NMBS); and

(8) The National Family Benefit Scheme.

Finally, the order not only established which policies governments were obligated to
implement, but also identified whom it would hold accountable in the event of
noncompliance.

By engaging in something strikingly close to lawmaking, the Supreme Court has, through its
series of interim orders, gradually defined the right to food in terms of what policies are
required of the state and central governments in order for them to adequately fulfil their
constitutional obligation under Article 21. Notable modifications to government schemes
(and therefore the right to food) have evolved in subsequent orders, reflecting an
interesting display of judicial activism regarding food policy.

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 RIGHT TO FOOD: CONTEMPORARY SCENARIO

The human right to food has its contemporary origin within the U.N. Universal Human
Rights framework. The main reference point is located within the Universal Declaration of
Human Rights (UDHR) (U.N. 1948), Article 25, which states, “Everyone has the right to a
standard of living adequate for the health and well-being of himself and his family, including
food.” It provided a reference point for human rights legislation that followed but is not itself
a binding international legal instrument.

According to the Special Report- Right to Food Is a Basic Human Right

This is a special Hunger Notes report on the right to food. Why shouldn't people have enough
food, earned in the usual case by working, to keep them alive and alert? A very reasonable
goal, but one which is far from being met, though there has been significant progress in the
past 10 years. This report examines both the progress and the frustrations.

Under nutrition, haunts the lives of millions of Indian. The magnitude and severity of the
nutritional crisis facing the country. Over a million deaths can be attributed to under-nutrition
and hunger. Most of the times, child deaths and suffering because of poor nutrition go
unnoticed. India reports among the highest levels of child under-nutrition have been rightly
termed by Prime Minister Manmohan Singh as a “national shame”.

According to a recent United Nations Children’s Fund (UNICEF) estimate, India accounts
for 31 per cent of the developing world’s children who are stunted and 42 per cent of those
who are underweight.

There are various reasons why India should do something about food security specially child
under-nutrition. Being well-nourished is the right of every child, and the state has the
obligation to ensure proper nutrition for all children. Undernourished children have
significantly lower chances of survival than children who are well-nourished. They are much
more prone to serious infections and to die from common childhood illnesses such as
diarrhoea, measles, malaria, pneumonia, and HIV and AIDS. The risk of dying increases with
the severity of the under-nutrition. If recent indicators are anything to go by – the failure to

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keep food prices down, the proposed national food security Act, the failure to ensure even
minimum wages to construction workers at projects for the upcoming Commonwealth Games
in New Delhi, to recount a few – it seems the country has given up even the pretence of
caring about its children or their crippling, nudging state of malnutrition.

The state of women’s health and food security is similarly symbolised by an equally
recalcitrant and even more widespread nutritional anaemia. This is a failure in itself as far as
women’s rights are concerned, but it is also the root cause of low birth weight, subsequent
malnutrition and poor child survival.

Most recently, a draft Food Security Bill that has purportedly been prepared for
consideration by the Empowered Group of Ministers has been doing the rounds unofficially.
While the authenticity of this document is not clear, it is nevertheless worth examining, just
in case it provides any pointers to the current thinking of the government on this crucial
matter. Thus, the “Preamble” declares that this is an Act “to provide statutory framework
for assured food security to all citizens of India to promote their active and healthy life
thereby enabling them to contribute productively to nation building”. This sweeping
statement is clearly not legally tenable, since none of the important terms and concepts are
defined, such as “assured food security”, nor is it clarified how it will be determined that
citizens “contribute productively to nation building”!

Based on Article 21 of the Constitution, the Supreme Court has regarded the right to food as
fundamental and basic human requirements for the right of life. In the spirit of the numerous
measures and programmes, the number of persons who are undernourished has increased
from 210 million in 1990- 92 to 252 million in 2004-05. The Food Security Bill, when
enacted, will become the most important step taken after 1947.

In other words, the population as a whole is supposed to be given food security as a legal
entitlement (although how this is to be done is not clear) but public provision of food grains
is only for a targeted section defined as poor. The rest of the document makes it clear that the
purpose is really to abandon a comprehensive and universal system of public food
distribution and then replace it with a targeted system. In that system, only those defined as
poor by State governments on the basis of total numbers to be determined by the Centre, will
have access to publicly distributed food grains, presumably at a subsidised rate.

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The entire focus of the operational part of the proposed Act is on the targeted public
distribution system [TPDS], which will provide food grains to households identified as
living below the poverty line (BPL). The total number of such households is to be determined
by the Central Ministry of Food and Public Distribution on the basis of the latest available
poverty estimates notified by the Planning Commission, with such estimates remaining valid
for a period of five years.

The most significant direct intervention designed by India to tackle under-nutrition is the
Integrated Child Development Services (ICDS) programme.

Most reviews and assessments have established that the more than 30-year-old programme
has not succeeded in delivering the desired result of preventing and eliminating under-
nutrition. This is what prompted the Prime Minister in his Independence Day address to
remark: “The problem of malnutrition is a curse that we must remove.”

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 CONCLUSION: RIGHT TO FOOD A HUMAN RIGHT

The right to be free from hunger and malnutrition is a fundamental human right of every
woman, man, youth and child. Universal and sustainable food security is part and parcel of
reaching the social, economic and human development objectives governments agreed upon
at world conferences in Rio, Vienna, Cairo, Copenhagen, Beijing, Istanbul and elsewhere.

The right to adequate food is also enshrined in legal terms in the most basic international
human rights treaties, including the Universal Declaration of Human Rights, the International
Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All
Forms of Discrimination Against Women, the International Convention on the Elimination of
All Forms of Racial Discrimination, and the Convention on the Rights of the Child.

"Everyone has the right to a standard of living adequate for ... the health and well-being of
himself and his family, including food, clothing, housing, medical care and necessary social
services, and the right to security...."

-Universal Declaration of Human Rights, Article 25

"The States Parties...recognize the right of everyone to an adequate standard of living ...,
including adequate food,...and to the continuous improvement of living conditions.... The
States Parties ..., recognizing the fundamental right of everyone to be free from hunger, shall
take ... measures ...: To improve methods of production, conservation, and distribution of
food by making full use of technical and scientific knowledge, by disseminating knowledge of
the principles of nutrition and by developing or reforming agrarian systems in such a way as
to achieve the most efficient development and utilization of natural resources; ... to ensure an
equitable distribution of world food supplies in relation to need."

-International Covenant on Economic, Social and Cultural Rights, Article 11

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"States Parties shall pursue full implementation of [the child's right to the highest attainable
standard of health] and ... shall take appropriate measures ... to combat disease and
malnutrition ... through the provision of adequate nutritious foods.... States Parties recognize
the right of every child to a standard of living adequate for the child's physical, mental,
spiritual, moral and social development.... States Parties ... shall ... in case of need provide
material assistance and support ..., particularly with regard to nutrition, clothing and
housing."

-Convention on the Rights of the Child, Articles 24 and 27

"Every man, woman and child has the inalienable right to be free from hunger and
malnutrition in order to develop their physical and mental faculties."

-Universal Declaration on the Eradication of Hunger and Malnutrition, Art. 1

"Considering intolerable that more than 800 million people throughout the developing world
and millions in more affluent societies do not have enough food to meet their basic needs;
that millions more experience prolonged hunger during part of the year or suffer birth
defects, growth retardation, mental deficiency, lethargy, blindness or death because they do
not have the diversity of food necessary to meet their total needs; ... convinced that world
generation of sustainable food security if determined and concerted efforts are undertaken;
we confirm our individual and common commitment to take considered action to ensure that
all people have at all times secure access to the food they need for an active and healthy life
with human dignity."

-1996 Rome Declaration of the World Food Summit

"Sustainable development must be achieved at every level of society.... Governments ...

should ... [promote] food security and ... food self-sufficiency within the context of
sustainable agriculture.... All countries need to assess ... the impacts of [economic] policies
on ... food security.... The major thrust of food security ... is to ... increase ... agricultural
production in a sustainable way and to achieve a substantial improvement in people's
entitlement to adequate food."

-Agenda 21, Chapter 3, para8 and Chapter 14, para.6

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"Lack of food and the inequitable distribution of food for girls and women in the
household ... have a negative effect on their health. Good health is essential to leading a
productive and fulfilling life and the right of all women to control aspects of their health ... is
basic to their empowerment. Discrimination against girls, often resulting from son
preference, in access to nutrition ... endangers their current and future well-being.... Actions
to be taken: ... Give particular attention to the needs of girls.... Ensure that girls have
continuing access to necessary health and nutrition information and services.... Promote and
ensure household and national food security ... and implement programmes aimed at
improving the nutritional status of all girls and women ..., including a reduction worldwide
of ... malnutrition among children under ... five by one half of 1990 levels by ... 2000, giving
special attention to the gender gap in nutrition, ... and a reduction in iron deficiency anaemia
in girls and women by one third of the 1990 levels by the year 2000.... Ensure the availability
of a universal access to safe drinking water...."

-Beijing Platform for Action, paras.92, 93, and 106

"Human health and quality of life are at the centre of the effort to develop sustainable human
settlements. We therefore commit ourselves to ... the highest attainable standard of ...
health.... Sustainable human settlements depend on the interactive development of policies
and concrete actions to provide access to food and nutrition.... Governments ... should ...
formulate and implement human settlements development policies that ensure ... food
security ..., giving priority to the needs and rights of women and children, who often bear the
greatest burden of poverty...."

-Habitat Agenda, paras.36 and 116

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 BIBLIOGRAPHY
http://www.pdhre.org/rights/food.html

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http://www.earthwindow.com/grc2/foodrights/HumanRightToFoodinIndia.pdf

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