PROJECT WORK ON

“RIGHT TO FOOD”
Its Reflection in National Food Security Act 2013

Under the Kind Supervision of –

Dr. Tanzeem Fatima
Assistant Professor Faculty of Law A. M. U., Aligarh Submitted By:-

Faisal Ashfaq LL.M. (P) 13-LLM-20 GB1586

CONTENTS
1. Introductory Remarks 2. Meaning, Nature and Concept of Food Security 3. Emergence of concept of welfare state and its obligation 4. Food Security in International Perspecticve 5. Food Security in Indian Constitutional Perspective 6. Judicial Approach towards Food Security 7. National Food Security Act, 2013 a. Origin and Development b. Object and Purpose of Act c. Food Security: Protection of Human Right in light of Natural law theory 8. Concluding Remarks Bibliography

Introductory Remarks
“It cannot mockery to tell someone they have the right to food when there is nobody with the duty bound to provide them with food. That is the risk with the rights rhetoric. What I like about choosing the counterpart, the active obligation of duties rather than the rights, you can’t go on and on without addressing the question who has to do what, for whom, when” Onor O’Neill
Right to food is indeed a laudable national commitment, it’s apt to remember that ensuring food security to the impoverished million in this country is not a government charity but a Constitutional mandate of the States. Article 21 of the Indian Constitution provides that ‘no person shall be deprived of his life and liberty except according to the procedure established by law’. It has received the widest possible interpretations. Under the canopy of Article 21 of the Constitution, so many rights have found shelter, growth and nourishment.1 While interpreting the dimensions of life and liberty guaranteed under Article 21 of the Constitution, the Supreme Court in Chameli Singh V. State of

1

P.M.Bakshi, The Constitution of India, Universal Law Publishin Co., New Delhi, 2012, p65

Uttar Pradesh2 held that the “right to live guaranteed in ant civilized society implies the right to food” Further, the Constitution under Article 47 requires the States to raise the level of nutrition and standard of living and to improve public health. The progressive developments in ensuring adequate food for all is also a positive step towards India’s commitment as a signatory to many International Conventions and Treaties which recognize the right to adequate food. However, in spite of Constitutional and Statutory obligations and many policies, violations of right to food are very common in India today. Planning Commission’s poverty estimates for 2011-123 is a classic example for worst violation of right to food in the light of National Food Security Act 2013 the implementation of which will lead to large exclusion of the real beneficiaries. According to new estimates of the Commission only those spending up to ₹27.20 per day in rural area and ₹33.33 in urban areas would be considered as living in poverty. While the Food Security Act is of historic importance, it must be examined in the light of Constitutional protection of right to food to appreciate the fact that ensuring food security is a Constitutional and legal entitlement and not a charity to the people. while the Act gathers lots of speculations and opinions ranging from adverse impact on India’s economic growth prospects to buying of votes in view fo the imminent
2

(1996) 2 SCC 549 http://planningcommission.nic.in/news/pre-pov2307.pdf accessed on 02/09/2013

3

national elections, the fundamental question to be asked is “do people have a right to food?”

Meaning, Nature and Concept of Food Security
“Food security is defined as physical, economic, and social access to balanced diet, clean drinking water, environmental hygiene, and primary health care”. The continuing evolution of food security as an operational concept in public policy has reflected the wider recognition of the complexities of the technical and policy issues involved. Food security as a concept originated only in the mid-1970s, and food security was defined in World Food Summit as “availability of all times of adequate world supplies of basic foodstuffs to sustain a steady expansion of food consumption and to offset fluctuations in production and prices.”4 Food security implies access by all people at all times to sufficient quantities of food to lead an active and healthy life. This requires not just adequate supply of food at the aggregate level but also enough purchasing with the individual or households to demand adequate level of food. The adequate supply involves the dimension of quantitative abd qualitative aspects. The quantitative dimension related to the overall food availability in the economy should be sufficient to meet the demand
4

United Nations, 1975, Report on the World Food Conference, Rome, 05-16 November 1974, New York

and the qualitative dimension relates the nutritional requirements of the population are properly looked after. As for as the question of enough purchasing capacity is concerned, it involves the introduction of Employment Generation Programme so that the income and purchasing power of the people increases. To tackle these aspects of the food security problem, Government of India has relied on the three fold based safety nets:  Public Distribution System (PDS)  Integrated Child Development Services (ICDS)  Mid-day Meal Programme (MDM) The continuing evolution of food security as an operational concept in public policy has reflected the wider recognition of the complexities of the technical and policy issues involved. Food security as a concept originated only in the mid-1970s, and food security was defined in World Food Summit as “availability of all times of adequate world supplies of basic foodstuffs to sustain a steady expansion of food consumption and to offset fluctuations in production and prices.”5

5

Kurukshetra- A Journal On Rural Development; vol.-60, no.-05, March 2005 2012, P20

Emergence of Concept of Welfare State and Its Obligation
Eradicating extreme poverty and hunger is one of the goals under the Millennium Development Goals of the United Nations. It costs responsibilities on all state parties to recognize the right of everyone to adequate food. Food security means availability of sufficient foodgrains to meet the domestic demand as well as access, at the individual level, to adequate quantities of food at affordable prices. The Indian Constitution has been conceived and drafted in the mid-twentieth century when the concept of social welfare state is the rule of day. The Constitution is this pervaded with the modern outlook regarding the objectives and functions of the state. It embodies a distinct philosophy of government, and explicitly declares that India will be organised as a social welfare state, it means a state which renders social services to the people and promotes their general welfare. In the formulation and declaration of the social objectives contained in the Preamble. One can clearly discern the impact of the modern political philosophy which regards the state as an organ to secure the good and welfare of the people.6 The concept of a welfare state is further strengthened by the
6

Prof. M.P.Jain, Indian Constitutional Law, Butterworth Wadawa Nagpur Publication, 6 Edition 2010, p14.

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Directive Principle of State Policy which set out the economic, social and political goals of the Indian Constitutional system. These directives confer certain non-justiciable rights on the people, and place the government under an obligation to achieve and maximise social values like education, employment, health, etc.7 In consonance with the modern approach of Government, providing adequate food has always been focus of the Government’s planning and policy. However, this legislation marks a paradigm shift in addressing the problem of food security from the current welfare approach to a right based approach. National Food Security Act would confer legal rights on eligible beneficiaries to receive entitled quantities of foodgrains at highly subsidised prices. Besides, it alse confers legal rights on women and children and other special groups such as destitute, homeless, disaster and emergency affected persons and persons living in starvation to receive meal free of charge or at affordable price.

7

Ibid.

Food Security in International perspective
Human right to food is a universally recognized right. It means the right of every person to have adequate and nutritious food, implying the right to be a free from hunger and malnutrition. It is an entitlemint to be free from hunger, which derives the assertion that society has enough resources both economic institutional, to ensure that everyone is adequately nourished.8 According to the United Nations Special Reporters on right to food, “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 the people to which the consumer belongs and which ensures a physical and mental, individual and collective fulfilling and dignified life free of fear.9 Article 25(1) of the Universal Declaration of Human Rights, 1948 provides 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 and housing….”. The International Covenant on Economic, Social and Cultural Rights 1996 under Article 11 establishes the ‘fundamental right od everyone to be free from hunger’. The Article reads as:
8

Jean Dreze, Democracy and Right to Food- Economic and Political Weekly, 24 April 2004, p1726. http:// www.ohchr.org/english/issues/food/index.html

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Article 11(1) : the State Parties to the present Covenant recognize the right of everyone to an adequate standard of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.10 Further 2nd paragraph of this Article recognizes the fundamental right of everyone to be free from hunger. India being a party to several International Conventions has committed itself to honouring the right to food. Other responsibility in this regard is evident most notably from the Conventions on the rights of the Child, 1989 and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). Article 27 of the Convention on the Rights of the Child11 establishes the right to an adequate standard of living which includes voth food and nutrition. According to the operational concept of right to food adopted by United Nations Food and Agricultural Organization food security exists 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 and healthy life.12 Again Article 4 of the Normative Content13 states that “The tight to adequate food means that
10

Stephen P. Marks, The Right to Development – A Primer, Sage Publications, New Delhi Convention on the Right to Child, 20 November 1989 www.tao.org/righttofood www.vatp.org/files/international_code_of_conduct_on_the_human_rig.htm th 11

12

13

every man, woman, and child alone and in community with others must have physical and economic access at all times to adequate food or by using a resource base appropriate for its procurement in ways consistent with human dignity.” Thus, right to food is a fundamental right of every human being world over by virtue of being born into the human family.

Food Security in Indian Constitutional Perspective
The Constitution of India plays a key role in the realization of right to food because it is the fundamental law of the land and laus down checks, balances and limitations on the powers of the Government. It ensures all its citizens equality, dignity, and social, economic and political justice. It goes without saying that any law to be valid it must be within the framework of the Constitution. The primary responsibility is surely with the State, because the State alone commands the resources required for protecting everyone form hunger and the State is generally responsible for safeguarding constitutional right.14 Right to food in India is not recognized specifically or directly in the Constitution. The crucial question is whether there is a constitutional mandate on the States to ensure right to food to all? It is in this context one need to recognize the various ways this recognition take place. Constitutional recognition of food security can be divided into four broad categories: 1. Explicit and direct recognition, as a human right in itself or as part of another, broader human right, 2. Right to food implicit in a broder human right, 3. Explicit recognition of the right to food as a goal or
14

Supra note 8, p1726

directive principle within the Constitutional order and 4. Indirect reecognition, though interpretation of other human rights by the judiciary. These categories provide a specific framework to locate the basis of right to food. The relevance of right to food as a fundamental right can be looked in various Articles of the Constitution as Article 21 of part 3, Article 39(a) and 47 of part 4 of the Constitution as well as recognition by way of judicial interpretation. Article 39(a) of the Constitution casts a duty on the State to ensure that all citizens have a right to an adequate means of livelihood, Article 47 entrusts the State with a duty to “regard the raising of the level of nutrition and the standard of living of its people.” But it may argue at the non-justiciable nature of the Directive Principles of State Policy. However as interpreted by the court time to time and again these policies are meant to guide governmental action for the formation of a welfare State. In many cases, Supreme Court has interpreted right to food as implicit in Article 21 of the Constitution of India. In Francis Coralie V. Administrator, Union Territory of Delhi and Ors15, the Supreme Court geld “We think that the right to life includes the right to live with human dignity and all that goes along with it,
15

(1981) 1 SCC 608

namely the bare necessities of life such as adequate nutrition, clothing, shelter and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human right.” Similar view was adopted by the Supreme Court in Shantistar Builders V. Narayan Khimalal Totame16, court held that “right to life is guaranteed in any civilized society. That would take within its sweep the right to food…”

16

(1990) 1 SCC 520

Judicial Approaches towards Food Security
Human right to adequate food has been recognized universally. While there is a surplus stock of food grains in the government granaries the problems of starvation death and malnutrition have become common phenomena. The affirmative action by the judiciary in the area of food security is a major step towards protection of right to food. While a comprehensive legislation on food security is on its way, Apex Court has established itself as a champion of food security for protecting the rights and interests of India’s impoverished millions. It has taken the lead towards securing right to food a guaranteed fundamental right in the Constitution of India. Article 21 of the Indian Constitution guarantees “no person shall be deprived of his life and liberty except according to the procedure established by law.” In this context, the ruling of the Supreme Court in Chameli Singh V. State of U. P.17 brought a new dimension to life guaranteed under Article 21. The Supreme Court interpreted the word ‘life’ in Article 21 as to include right to food, water, decent environment, education, medical care and shelter. In Peoples’ Union for Civil Liberties V. Union of India18 popularly
17

(1996) 2 SCC 549 WP (civil) 196 of 2001

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known as ‘right to food cases’ the Supreme Court took note of the various aspects of the right to food security. In this writ petition, it was contended that the “right to food” is a part of the fundamental right to life under Article 21 of the Constitution of India. The interpretation of the Supreme Court on various aspects of right to food further helps in strengthening the view that right to food is indeed a constitutional entitlement. The following important interim orders by the Supreme Court in “right to food cases” have a significant bearing on the constitutional and legal protection of right to food1. The benefits of eight nutrition-related scheme (PDS, Antyodaya, mid-day meals, ICDS, Annapuma, old-age pensions, NMBS and NFBS) have been converted to legal entitlements (Order dated 28th November 2001) 2. The State Government/Union Territories to implement the Mid-day Meal Scheme by providing every Government and Government assisted Primary Schools with a prepared mid-day meals with a minimum content of 300 calories and 8-12 grams of protein each day of school for a minimum of 200 days (order dated 28th November 2001) 3. Direction issued to the State Government to ensure that “all PDS shops, if closed, are re-opened and start

functioning within one week from today and regular supplies made” (Order dated 23 July 2001) 4. The licenses of PDS dealers and shop-keepers to be cancelled if they “(a) do not keep their shops open throughout the month during the stipulated period; (b) fail to provide grain to BPL families strictly at BPL rates and no higher; (c) keep the card of BPL households with them; (d) makes false entries in the BPL cards; (e) engage in black marketing or siphoning away of grains to the open market and hand over such ration shops to such other person/organizations” (Order dated 23 July 2001) 5. Direction issued to the Central and state Government to “frame cleat guidelines for proper identification of BPL families. (Order dated 8th May 2002) 6. The court held that starvation deaths would ve considered as proof of non-compliance with the orders of the Court. (Order dated 29th October 2002) 7. The Central Government has been directed to formulate the scheme to extent the benefits of the Antyodaya Anna Yojana to the destitute section of the population (Order dated 29th October 2002) Thus in the absence of any comprehensive legislation the Supreme

Court has taken a proactive role to protect the rights and interests of the poor and the disadvantaged. The orders of the Supreme Court in various cases relating to right to food needs to ve properly and correctly interpreted and implemented.

National Food Security Act, 2013
The preamble of Act stated as“An Act provide for food and nutritional security in human life cycle approach, by ensuring access to adequate quantity of quality food at affordable prices to people to live a life with dignity and for matters connected therewith or incidental thereto” which clearly show the intention of parliament to secure right to food.

(a) Origin and Development:-

In pursuance of the

constitutional and the international conventions obligations, providing food security has been focus of the Government’s planning and policy. Food security means availability of sufficient foodgrains to meet the domestic demand as well access, at the individual level, to adequate quantities of food at affordable prices. Attainment of self-sufficiency in foodgrains production at the national level has been one of the major achievements of the country. In order to address the issue of food security at the household level, the Government is implementing the Targeted Public Distribution System under which subsidised foodgrains are provided to the Below Poverty Line, including Antyodaya Anna Yojana, and Above Poverty Line households.

Ensuring food security of the people, however, continues to be a challenge. The nutritional status of the population, and especially of woman and children, also needs to be improved to enhance the quality of human resource of the country. The proposed legislation marks a paradigm shift in addressing the problem of food security from current welfare approach to a right based approach. Besides expanding coverage of the Targeted Distribution System, the proposed legislation would confer legal rights on eligible beneficiaries to receive entitled quantities of foodgrains at highly subsidised prices. It will also confer legal rights on woman and children to receive meal free of charge. In this regard, the National Food Security Bill, 2011 was introduced in the Lok Sabha on 22nd December, 2011. Subsequently, the said Bill was referred to the Department Related Parliamentary Standing Committee on Food, Consumer Affairs and Public Distribution for examination and Report. The Standing Committee presented its Report to the Speaker, Lok Sabha on 17th January, 2013. The recommendations of the Standing Committee were examined on priority; and accordingly the Government gave notice in the Lok Sabha in the Budget Session for consideration and passing of the said Bill along with official

amendments. However, Parliament was adjourned sine die on 8th May, 2013 and thereafter both the Houses were prorogued. In view of the time that has already lapsed in passing of the National Food Security Bill, 2011 since its announcement by the then President of India in her address to the Joint Session of Parliament on 4th June, 2009, and further delay in getting it passed through Parliament, the Government was of the considered view that it will not be appropriate to further delay the reaching of the proposed benefits of the Bill to the people of the country. As the both Houses of Parliament were not in Session and immediate action was required to be taken to ensure that the benefits of the proposed legislation reach the people at the earliest, the President promulgated the National Food Security Ordinance, 2013 on 5th July 2013. Again the Parliament of India succeeded in getting the National Food Security Bill, 2013 passed on 26th of August in Lok Sabha and on 2nd of September 2013 in Rajya Sabha, the ‘historic step’ taken by the Parliament in getting the Bill cleared in the Houses is significant in a country where starvation deaths, malnutrition etc., are common phenomena. The landmark Bill aims at providing rice at Rs. 3 per kg, wheat at Rs. 2 per

kg, and coarse grains at Rs. 1 per kg up to 75 per cent of the rural and 50 per cent of the urban population. Finally this Bill got assent of President on 10th September, 2013, and come into force on the 5th day of July, 2013. In the view of origin and purpose of law, according to Roscoe Pound, law is a species of social engineering whose function is to maximise the fulfilment of the interests of the community and its members and to promote the smooth running of the machinery of society. Bodily security, property reputation and freedom of speech are all interests in this sense. So this Act is to balance the interest of weaker section in the society and protect their interests.

(b) Object and Purpose of Act:-

The object and purpose

which is enshrined in this Act are as to Provide for food and nutritional security, in human life cycle approach, by ensuring access to adequate quantity of quality food at affordable prices to people to live a life with dignity;  Entitle every person belonging to priority households, to receive every month from the State Government, under the Targeted Public Distribution System, the foodgrains specified in Schedule (1) of Act;

 Entitle every pregnant woman and lactating mother to meal, free of charge, during pregnancy and six months after child birth, through the local anganwadi, so as to meet the nutritional standards specified in Schedule 2; and to provide to such woman maternity benefit of not less than rupees six thousand in such instalments as may be prescribed by the Central Government;  Entitle every child up to the age of fourteen years, age appropriate meals, free of charge, through the local aganwadi so as to meet the nutritional standard specified in Schedule 2 in the case of children in the age group of six months to six years and one mid-day meal, free of charge, every day, except on school holidays, in all schools run by local bodies, Government and Government aided schools, to children up to class 8 or within the age group of 6 to 14 years as o per specified in Schedule 2;  Require the State Government to identify and provide meals through the local anganwadi, free of charge, to children who suffer from malnutrition, so as to meet the nutritional standards specified in Schedule 2; and implement schemes covering entitlements of woman and children in accordance with the guidelines, including cost sharing, between the Central Government and the State Governments in such manner as may

be prescribed by the Central Government;  Entitle the eligible persons under chapter 2 of the legislation, to receive such food security allowance from the concerned State Government to be paid to each person, in case of non-supply of the entitled quantities of foodgrains or meals, within the time and manner prescribed by the Central Government;  Enable the State Government to prescribe guidelines for identification of priority households, for the purpose of their entitlement under the Act and identify such households;  Progressively undertake necessary reforms by the Central and State Government in the TPDS in consonance with the role envisaged for then in the Act;  Treat the eldest woman who is not less than 18 years of age, in every eligible household, to be head of the household for the issue of the ration card;  Impose obligation upon the State Government to put in place an internal grievance redressal mechanism which my include call centers, help lines, designation of nodal officers, or such other mechanism as may be prescribed by the respective Government; and for expeditious and effective redressal of grievances of the aggrieved persons in matters relating to distribution of entitled

foodgrains meals under chapter 2 of the Act.  Make provision for the State Food Commission to be constituted by every State Government for the purpose of monitoring and review of implementation of the Act;  Impose penalty upon any public servant or authority found guilty, by the State Government at the time of deciding any complaint of appeal, or failing to provide the relief recommended by the District Grievance Redressal Officer, without reasonable cause, or willfully ignoring such

recommendation, not exceeding 5 thousand rupees after giving an opportunity of being heard.

(c) Food Security: Protection of Human Right in light of Natural law Theory :The National food Security Act, 2013 is an attempt to protect the natural right of the nationals and this right is an inherent as well as human right. According to John Locke, “the purpose of State and law was to uphold and ‘protect the natural rights’ of men. So long as the state fulfills this purpose, its laws were valid and binding but when it ceases to do so, the people have a right to revolt against the government and overthrow it.19 Thus Locke emphasised on
19

Locke’s Famous Work – Two Treaties of the Government; appeard in 1776.

the protection of the three main rights, namely, right to life, liberty and property which were inalienable and necessary for the well being of the individual. Another Jurist John Rawls propounded two basic principles of justice namely (1) equality of right to securing generalised wants including basic liberties, opportunities, power and minimum means of subsistence; and (2) social and economic inequalities should be arranged so as to ensure maximum benefit to the community. So this Act enshrined the basics of Natural Law and obliged to fulfill by a mandate.

Concluding Remarks
On analysis of Articles 21, 39(a) and 47 of the Constitution of India, various judicial interpretations and the National Food Security Act strengthens the constitutionality of right to food as a fundamental right. It further emphasizes the Constitutional mandate of the State to adopt appropriate and adequate measures to make this right a reality for all citizens. As held by High Court of Andhra Pradesh in Kurra Subba Rao V. District Collector20, “the obligation of the welfare state exists not only to enable the people to eke out their livelihood but also to make it possible for them to lead a good life.” The National Food Security Act, 2013 is an Act of Parliament, is aimed at making right to food meaningful. Thus taken together, one can confidently say that right under the Constitution of India.

20

1984 (3) APLJ 249

Bibliography
 Bakshi P. M. – The Constitution Of India; 2012 Edition

 Dias, H. W. M. – Jurisprudence; 5th edition 1985  Jain M. P. Prof. – Indian Constitutional Law; 6th Edition 2010.  Kurkshetra – A Journal on Rural Development; March 2012  Locke John – Two Treaties of Government; 1776  National Food Security Act, 2013  Salmond John, Sir – Jurisprudence; 12th Edition, 2003  United Nations Report of the World Food Conference at Rome, 1975  www.fao.org  www.planningcommission.nic.in