Food from the courts
DEMOCRATIC governments the world over, guarantee to all people who live within their boundaries the most essential and basic of all rights – the right to life. The fundamental right to life is understood to imply that, for instance, if a person is detained by the state, and dies while in its custody, either because of torture or extra-judicial killings, state authorities are criminally liable for the death. The actual realization of this right, especially by powerless and disen-franchised people, remains of course flawed and often bitterly contested in many countries. But the theory of such state accountability is rarely contested within the framework of liberal democracy.
The right to sufficient and assured food to live an active and healthy life with dignity is in principle also an essential component of the fundamental right to life, because life itself is impossible without food. Yet, state authorities are conventionally not held responsible when a person loses her life because she cannot access sufficient food for her survival in the same way as a person who dies because the state directly takes her life without resort to due process of law. The death of a citizen by starvation is seen as a moral failure of the state, but rarely one that entails direct punishable criminal or even civil liability of public authorities who were charged with the responsibility to ensure that every man, woman and child in their jurisdiction has access to sufficient food for their survival with dignity.
Admittedly, there are many tangled ethical and political questions involved here. For one, where does the duty of the state start and that of the individual, family and local community end? There are those who believe that the state’s reach and consequent responsibilities are and must remain limited: that whereas governments can support and create appropriate conditions and extend some support, the final responsibility is of people themselves to organize, with the assistance of their kinship and community networks, their own food, shelter, social security, education and health care. This view obfuscates vast differences of power and resources, of freedoms and capabilities between people. People are not impoverished, hungry, homeless or destitute because of chance, and even less because of their own intrinsic failings. They often suffer profound, unjust, humiliating and even life-threatening deprivations because of the way the political economy is structured.
The people may not own any productive assets like land and capital, or even a home. They may be unable to find work because none is available, or because they belong to the wrong gender, caste, faith, ethnicity or have a disability. They may suffer because governments fail to redistribute land, protect them during conflict, secure spaces for them for housing, or displace them for big dams and industry. They may fall prey to ailments, which debilitate or stigmatize them because of brutalized and unhygienic water and environments, and not having the necessary resources to seek care in a private clinic. They may be unable to afford a private school for their children, who may be forced to work by impoverished parents, or because they lack adult protection and are growing up on the streets without care. An old person may be unable to labour, but has no access to food unless she works. It is only the state that has the resources and legitimacy to guarantee each of these persons who live with want, stigma and oppression a full human life of dignity, and the nutrition, shelter, health care, education and social security which are essential to sustain life.
In these debates there is often also a subtext of different values assigned to different human lives. People are tacitly valued in proportion to what and how much they ‘contribute’ to society, or in other words to what they can ‘produce’. The state is seen to be primarily responsible to protect and facilitate such productive individuals, and these duties are self-limiting because most such persons are capable of taking care of their essential life-enabling needs. On the other hand, the people who are not productive but dependent, deserve only such support as is possible for governments to muster. The aid they get is welfare, not a right. This again limits state responsibility towards people who are paradoxically most in need of support and protection for their survival.
The ethical flaw here is to value people on the basis of what they can ‘produce’ in terms of priced goods and services in the formal market. This disregards many unpriced non-valorized contributions that such persons may make to the world around them; that they are not responsible for their biological limitations such as of disability or age, or social limitations such as of gender; and that many of their failures to ‘produce’ are not intrinsic but the result of barriers imposed by social norms. A hearing impaired person may be found to be more accurate in data entry work, or a mentally slow person more productive in assembly line factory work, which a person with a more agile mind finds boring, but a person with a slower mind finds engaging.
But most importantly, what needs to be challenged is the premise that human life should be valued for what it can ‘produce’ rather than for its inherent equal shared humanity. If this ethical principle is accepted, then the state is duty bound to provide for people in proportion to what they need rather than what they ‘produce’.
Another argument against making failures by public officials to ensure rights, such as to food, punishable is that public officials can be punished for what they do, but not for what they fail to do. Thus it is correct that officials should have to account for the death by torture of a person in police custody because state officials have misused public office to commit a crime. But the failures in the event of starvation deaths are at best of not acting, and hence cannot be treated as a crime.
However, it is increasingly acknowledged that public officials must be made responsible, both for the consequences of their actions and their failures to act. If people die in a communal riot because state officials just stood by and let mobs maraud, loot and kill, this should be treated as a crime no different from one in which state officials actively planned and participated in the slaughter. Likewise for the consequences of failure by the state to act in ways to ensure that every woman and man, boy and girl, has sufficient food to sustain life.
Courts and constitutions have held back from enacting socioeconomic rights like that to food, shelter and health care legally binding, because of the finite availability of fiscal resources. It is believed that decisions regarding the amount of tax that should be imposed, on whom such burdens should fall and how these resources are to be invested, are all legitimately political decisions of the executive, in which the law and courts should take care not to tread. Therefore, even when social and economic rights are acknowledged by courts and constitutions, it is mostly with the caveat that rights involving substantial state expenditure such as for food and housing should be realized only to the extent that it is considered fiscally feasible by the elected government of the day. However, while public resources are certainly finite and limited, states need to be constrained to raise sufficient resources and prioritize its expenditures to ensure the survival of all of its people with dignity, and this can be ensured only with the intervention of the law and courts.
Amost persuasive argument against making socio-economic rights legally binding and enforceable through courts is that in any democracy the executive is ultimately accountable to the people through the vote, through universal adult franchise, and if the executive does not secure people’s survival with dignity through food, work, housing, health care, education and social security, people would be free to vote out the government. This is the ultimate punishment for a culpable executive, and it is therefore inappropriate to constrain the choices of a democratically elected government, which is accountable even beyond and above courts directly to the people who elect it.
This argument too ultimately fails because it neglects the enormous hiatus of power between people, and that universal adult franchise ensures only a formal equality between every citizen, while political decisions are ultimately influenced by people and groups that wield economic, political and social power. The entitlements of the powerless, of women, children, the disabled and aged, the assetless and discriminated – the wretched of the earth – can be protected only by legal rights, codified and enforceable. Those whose rights are denied – the woman, man or child – whose survival with freedom is imperilled because public policy and the arrangements of political economy deny them what is essential to sustain life with dignity, should have the legal right to challenge and ultimately punish public authorities who fail them. Indeed, this has become even more imperative in contemporary times characterized by the hegemony of market fundamentalism on public policy worldwide, and policies of structural adjustment and globalization, which compel governments to reduce public expenditure and this most often tends to result in pulling back investments that benefit and protect the poor.
Therefore, a legally enforceable regime of socio-economic rights must lay a floor of human existence and dignity below which no person should be permitted to slip. It establishes the scaffolding for humane governance, which sets limits to the enormous avoidable human suffering entailed by want of food, a roof to protect one from the extremes of climate, and health care when one is afflicted. It demands state officials to be accountable, both for what they do and not do, for the most vulnerable and defenceless in society. It affirms that no human being is dispensable, regardless of age and wealth, gender and ability, and of what they are deemed to produce and contribute to society.
The unique experience of India since 2001 demonstrates the practical ways in which a right as fundamental as the right to food can become legally enforceable, and have an extraordinary impact on the massive redeployment of state expenditure in favour of the dispossessed, and the coverage with state supported food supply to millions of children and women and men who are routinely deprived of adequate and assured nutrition. The recent Indian experience of seeking to legislate the right to food is an extremely important illustration of how a combination of civic and judicial activism has helped elaborate an important socio-economic right, and progressively made segments of it justiceable.
This experience of Indian courts and civic action in enforcing the right to food is also useful to illuminate the vexed and as yet unresolved debate about the justiciability of socioeconomic human rights like the right to food, or in simple terms whether a person who is denied this right can go to court, both to get the right enforced and to ensure punishment to those in authority who denied her this right.
When the Indian Constitution – a luminous and exceptionally progressive document – was written in the late 1940s, it accepted the prevailing received wisdom of those times, that civil and political freedoms alone – like protection against illegal detention and freedom of expression and association – can be enforced through the courts. It listed these in a chapter on Fundamental Rights. It reserved another chapter for social and economic rights, termed the Directive Principles of State Policy, which were morally, rather than legally, binding. In a literal sense, it is only in this chapter that we find mention of rights such as to food and shelter.
The most explicit reference to the right to food can be found in the first part of Article 47 of this chapter of the Indian Constitution. Article 47 (Duty of the State to raise the level of nutrition and the standard of living and to improve public health) directs that, ‘The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purpose of intoxicating drinks and of drugs which are injurious to health.’
However, over the years, the highest courts of the land established that the right to food was implicit, even if not specifically mentioned, in the chapter on enforceable Fundamental Rights. Article 21 included in the Fundamental Rights of the Constitution, entitled ‘Protection of life and personal liberty’, guarantees that ‘No person shall be deprived of his life or personal liberty except according to procedure established by law.’
Over the years, a series of judicial interventions and interpretations have vastly expanded the frontiers of this right to include several other socio-economic rights, including the right to food, right to housing and right to work. The interpretation is that the right to life implies life with dignity, and therefore the complementary rights that are mandatory to enable the realization of this right are also by implication fundamental rights. Since life is biologically impossible without regular nutrition, the right to food has been widely recognized as a core fundamental right.
Even this judicial acknowledgement of the right to food as a fundamental right did not until recently impact on the actual realization of this right by girls and boys, women and men, who were routinely deprived of adequate and assured food for an active and healthy life. Indeed, even countries like South Africa, with a similar experience, explicitly included the right to food in their constitutions. This was done because in practice, a great deal of ambiguity continued to surround the actual justiciability of this right, or whether a person whose right is denied can seek redress from courts. Ultimately this depended on the discretion and interpretation of individual judges. In the event of progressive and responsive judges hearing these matters, judicial intervention has cumulatively strengthened the realization of this right.
In the year 2001, a group of activists under the banner of the People’s Union for Civil Liberties (PUCL), Rajasthan, filed a case in the Supreme Court demanding that the right to food be recognized as a legal right of every citizen in the country. The petitioners in this case claimed that the people of India are confronted with an unconscionable situation of rampant hunger and recurring droughts on the one hand, and governments that fail to prevent hunger despite having the means to do so, including overflowing warehouses full of rotting foodgrains, on the other.
None of us who were associated with filing the petition had anticipated the colossal scale and impact the case would have on the lives of millions of indigent Indians living in desperate poverty and hunger. This writ petition (civil) no. 196 has become the most significant litigation for socio-economic rights, blazing a trail which is being observed with interest globally. I believe that the extraordinary influence this case has had – which is possibly historic – is precisely because it is an idea whose time had come. The Supreme Court accepted the petition with the observations (made on 23 July 2001) that: ‘In our opinion, what is of utmost importance is to see that food is provided to the aged, infirm, disabled, destitute women, destitute men, who are in danger of starvation, pregnant and lactating women and destitute children, especially in cases where they or members of their family do not have sufficient funds to provide food for them. In case of famine, there may be shortage of food, but here the situation is that amongst plenty there is scarcity. Plenty of food is available, but distribution of the same amongst the very poor and the destitute is scarce and non-existent leading to malnourishment, starvation and other related problems.’
The governments of India and various states responded to the Supreme Court claiming that they were already implementing a range of schemes that adequately secured the right to food of all people. These included feeding programmes for infants, school going children, expectant and nursing mothers and adolescent girls; subsidized cereals retailed through a countrywide network of ration shops; pensions for the aged and wage employment to the able bodied.
In reply, the petitioner (Kavita Srivastava of the PUCL, Rajasthan) and the counsel (Colin Gonsalves of the Human Rights Law Network) requisitioned information from a still incipient civil society network which called itself the Right to Food Campaign to establish the grave flaws and gaps in the coverage and implementation of these programmes. The case caught the imagination of people in the far corners of the country. In fact, so much paper came in that we had to use wheelbarrows to carry the bundles of files to the courtroom!
The learned judges of the Supreme Court were convinced by the burgeoning evidence placed before them, which enabled them to take several highly significant steps. The first of these was to direct all governments that they could not withdraw or abridge any of the benefits provided by the food, livelihood and social security schemes vital for all people to secure their right to food. In other words, what the court did was to first convert food, livelihood and social security schemes, which are vital to food security of vulnerable citizens, into entitlements or rights. By this, the state would no longer have an option to withdraw or reduce any of these schemes as they had now become legal rights. It obliged the state to at least retain, or preferably enhance, these entitlements and raise the necessary fiscal resources to provide for them. This order thus paved the way for an enforceable right to food for the first time. It effectively prevents governments from removing or diluting these schemes under pressure to reduce the fiscal burden.
The Supreme Court thereafter appointed independent commissioners to ensure compliance with their orders and to track both hunger and the performance of food, livelihood and social security programmes of all governments across the country. (Initially, the court appointed S.R. Sankaran and N.C. Saxena as commissioners. Sankaran subsequently resigned, and since then I have been working with N.C. Saxena for the court). Apart from the pleadings of the petitioner and replies and reports of the Union of India and several state governments, the justices of the Supreme Court have relied significantly on a series of reports submitted by the commissioners to assist in its deliberations in this case.
In their reports, the commissioners have attempted first to monitor the implementation of various interim orders passed by the Supreme Court in the course of hearings in the case. They have further reviewed and analyzed the performance of the central and state governments in implementing various schemes and programmes related to the food security of the people of India. They have investigated and reported on complaints and reports of local failures in food programmes, including starvation deaths. And finally, they have, from time to time, made recommendations to both governments and the Supreme Court of India for possible steps that they may consider to defend and promote food security, particularly for vulnerable people.
The third category of orders passed by the court has been to expand the content and modes of implementation of the various schemes which it had converted into entitlements. For instance, on the advice of its commissioners, it ruled that school meals should be locally produced, hot and cooked (and not dry snacks or grain which many governments distributed until then), hygienic, nutritious (of a prescribed minimum caloric level) and with varied menus for every day of the week. It also recognized that school meals are an instrument to teach children social equality; therefore, it ruled that preference be given to Dalit cooks. In the ICDS (Integrated Child Development Scheme), it banned contractors from supplying ready to eat food to preschool children, and again required hot cooked meals, at least for those above the age of three years. This was a blow to centralized procurement and hence, against large-scale centralized corruption.
The powerful biscuit manufacturers lobby saw an opportunity for profit in the court-expanded programme and recruited Members of Parliament across party lines and an influential cabinet minister to demand that locally produced and monitored hot meals be replaced by the ‘empty calories’ of biscuits. This proposal was fought by an informal alliance of conscientious public servants, the national media, concerned professionals and the court commissioners. The court has ordered for decentralized hot cooked meals in the best interest of millions of our young malnourished children. Likewise, the court and commissioners recommended higher pensions for the aged, distributed on time every month at the doorsteps of the impoverished elderly.
And finally the court ordered the universalizing of many of these schemes. Until now governments covered only a fraction of the potential recipients of food, wage or social security benefits provided by these programmes. The Supreme Court not only converted the schemes into enforceable entitlements, it also ordered that every potential beneficiary in the country be covered by the programme within a defined time frame. This meant in every instance an expansion of the programme several times beyond what it was before the intervention of the court.
It is significant that the Supreme Court refused to concern itself with the ‘fiscal feasibility’ of its orders to universalize various entitlements. It entertained no caveats that its orders depended on the ability of the governments to raise sufficient resources, or left any escape door open for governments to default in complying with its directions on the plea that it failed to raise adequate resources.
The first such order of the court was to provide a hot and nutritious mid-day school meal for all children in state and state-aided schools. Today this benefits one hundred and forty million school children daily, making it the largest school feeding programme in the world. When the executive had to find ways to raise revenues to operationalize universalized entitlements, and to finance mid-day meals, it initially imposed a special education cess of two per cent on all federal taxes for education, including school meals.
A second order was that every habitation of every village and slum must have a feeding centre to serve every child below six years, and all pregnant and lactating mothers and adolescent girls. The legislature further passed a law for a national employment guarantee scheme which legally guarantees all rural families seeking work, 100 days of wage employment a year at statutory minimum wages. And the executive eventually relented in expanding the coverage of old age pensions from half to every aged person identified as subsisting ‘below the poverty line’.
The court orders to universalize programmes for feeding children have expanded budgetary allocations exponentially. The court ordered a phased expansion of the ICDS (preschool nutrition) programme from 0.6 at the time of its order to 1.4 million habitations, and the coverage of every eligible child below six years, who potentially constitute 17 per cent of the total population of more than a billion people. As a result, between the 10th and 11th plans, the allocations for the ICDS increased by 372 per cent.
The expansion in budgetary allocations for school meals rose even more dramatically between the plans by 713 per cent. In 2002-03, allocation for mid-day meals was a little more than 10,000 million rupees; this rose almost eight-fold to 80,000 million by 2008-09, entirely an outcome of the court orders that every child in state or state-aided elementary schools must receive a hot cooked meal in school. A single order of the court, say for mid-day meals, brought more direct additional benefits to malnourished and impoverished children than the cumulative contribution of all the development aid of all bilateral, multilateral and non-government agencies taken together. The number of old age pensioners has also risen from over five million in 2000-01 to 13 million in 2007-08, and allocations under the national social assistance programmes have grown by 464 per cent.
In more than ten years of hearings, the Supreme Court has passed a number of significant orders to advance the right to food of specific food-deprived populations. The effectiveness of civil and judicial intervention in securing the people’s ‘right to food’ can be assessed from the range of interim orders of the court so far.1 (At the time of writing, 58 interim orders have been passed and hearings of the court in this case continue.) These orders have significantly improved the food security of literally millions of people living with hunger.
The commissioners and the petitioners, with the active support of the court, have pushed the frontiers of the case to establish, elaborate and enforce new rights of vulnerable people. During the exceptionally cold winter of 2009 in Delhi, for instance, a number of homeless people died. The commissioners wrote to the Supreme Court that people die of the cold not because of low temperatures, but because they are homeless and severely malnourished. People exposed to severe cold require many more calories simply to maintain body temperature. As a result the court ordered the Delhi government to immediately enhance the number of night shelters. Consequently, the Delhi government more than doubled the numbers of shelters; it opened more homeless shelters in two nights than it had in 60 years since Independence.
The experience of this case illustrates that although the right to food already existed as a fundamental right implicit in the right to life (as do other rights such as to shelter, health care and social security), for these rights to be actually operationalized, courts in response to civic action had to elaborate the right in terms of a series of specific and explicit entitlements. It was not enough to declare that every citizen enjoys the fundamental right to food. Each category of people has varying food needs, based on experience of denials and vulnerabilities, and the court has in effect ‘explicated’ or unpacked the right in relation to each segment of people.
For an infant, the right to food translates into an entitlement of supplementary nutrition of defined specifications in feeding centres. For a school going child, the right implies hot cooked school meals at state expense. For pregnant women, it means supplementary nutrition and maternity benefits. For designated poor families, it means 35 kilograms of state subsidized rice or wheat every month. For the able bodied, it means guarantee of food through wage work. For the aged, it means pensions. The unfinished agenda of the court, I believe, is to secure the rights of individuals who are excluded from all these schemes as they are currently designed, such as a child who cannot go to school, or of malnourished women who are not mothers, or of migrant workers and their families.
In summary, schemes that cater to the socio-economic rights of dispossessed populations need to undergo a metamorphosis from programmes that can be withdrawn or reduced at will by the executive, into non-negotiable entitlements which can only be expanded, not reduced. Second, the content of some of these rights need to be enhanced, such as the quantum of pensions, or the features of the hot cooked mid- day meals. Third, the entitlements need to be universalized, such as through the ruling that every child in state or state-aided schools across the country must get hot cooked noon meals. And an independent mechanism needs to be created to monitor the actual realization of these rights. The lessons from this experience would resonate even with other basic social and economic rights, such as to shelter, work, social security, education and health care.
In part, as a result of these deve-lopments, the Indian National Congress included in its manifesto a promise to legislate the right to food if it came to power in the general elections of 2009. As it turned out, the Congress was indeed returned to power, and led a coalition called the United Progressive Alliance; in the first address of the President to Parliament outlining the newly elected government’s priorities, a National Food Security Law was reiterated as a high priority of the new government. It is possible to speculate that at least one reason why the executive decided to propose such a law was that it was in any case being legally compelled to recognize such a right.
It is beyond the scope of this article to describe the highly contested journey that the drafting of this bill underwent. At the time of writing, the final shape of the bill is still under consideration of Parliament. But there can be little doubt that it was the courts which showed the way to a law which makes governments legally responsible to end hunger.
The experience of this litigation in the Supreme Court of India has demonstrated that civic and judicial action can combine to ensure that a right such as to food which is vital for human survival, can be guaranteed by the state in ways that are sensitive and responsive to the specific needs and denials of various categories of food insecure women and men, boys and girls. It is not just the courts and citizen groups, but also lawmakers and policy formulators who can draw lessons from this about how the law and the constitution can establish a floor of enforceable entitlements, not just of nutrition, but also shelter, social security, health care and education, below which no one will be allowed to fall. If this is accomplished, it may become more realistic to dream that a day will indeed dawn when, for the first time in recorded human history, the enormous suffering and indignity of intense human want could stand banished.
* Harsh Mander is the author of Unheard Voices: Stories of Forgotten Lives, Penguin Books, 2001 and Fear and Forgiveness: The Aftermath of Massacre, 2009.
1. For a summary of the orders passed by the Supreme Court so far, visit www. supremecourtcommissioners.org/orders