FOOD SECURITY AND JUDICIAL ACTIVISM IN INDIA

Nagendramurhty. M.P* B.P. Mahesha** H.S. Shivakumar***

Human rights have emphasized that a hunger free human order alone can think of peace, security and freedom -Justice Krishna Iyer 1. Introduction The phrase Man born free, but tied with chins denotes that, man born free without any obstacles but when he enters this world he will be tied with the

responsibilities or social links. The traditional notion reveals that to born as a human being among the other animals is a great honor or privilege. The growth of civilization led the man to think on the protection of his property and personality, rights and duties. The discussion on the right and duties led the thinkers to ponder on the global protection of rights and enforcement of duties and this center around the concept of Human rights and Duties. Though Human Rights are inalienable indestructible rights, their protection is not satisfactory. Our age-old tradition on the right to food, the ancient Indian concept of dharma, laid an emphasis on growing and sharing food in abundance. Life arises from food and the world is sustained by food and hence it is ordained that we should try to produce an abundance of food. The Rig-Veda prescribed moral and legal duties upon the individual to feed the starving and the sages. 2. Meaning of Right and Right to food The rights are concerned with interests and indeed have been defined as interest protected by rules of right that is by moral or legal rules. 1 The rights and duties are correlative. The Right and duties involves a Vinculum Juris or bond of legal obligation by which two or more persons bound together. The right to duty test

*Associate Professor, JSS Law College, Mysore ** Assistant Professor, JSS Law College, Mysore *** Assistant Professor, Vidyavardhaka Law College, Mysore 1 Fitzgerald. P.J. Salmond on Jurisprudence, 12th Ed.2004, p. 219

of Hohfeld theory of Right and Duty denotes that the any person in the world woes a right to food and it is the duty of the state to provide food.2 The right to food is necessary to achieve our right to livelihood. The right to foods arises from our natural instinct to fulfill hunger. The right to Food is one of the basic concepts of right to life outlined under Article 21 of the Constitution, and represents a type of social security. The Food is a basic necessity of life. 3. Right to food as a human rights The aim of all political association (State Governments) is the conservation of the Natural and Inalienable rights of man.3 The human rights seeded in the French Declaration proved the fact that human rights concept is not a new phenomenon but it was documented and universally accepted only in 1948 in the UDHR. From the Magna Carta 1215 to Universal Declaration of Human Rights 1948 the basic objective was that to make man to live happily, enjoy the natural rights and live in brotherhood relationship.4 The principle of natural law denotes that, man is endowed with power and rights by the nature and only the nature has to obstruct the natural rights. The basic idea of the natural law theory is that man is born free and lives freely and dies freely. Grotius asserted that Natural law is so immutable that it cannot be disobeyed by god himself. It is the duty of every state to protect the interest of the individuals. On the other hand it is the basic right of the individual.5 The theories of law are based on the concept of protection of individual rights by the state.6 Few important international conventions and instruments on right to food and food security are as follows.
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Ibid. Chapter 7 pp.215 to245 French Declaration of Rights of Men and Citizens 1789 4 The historical development of Human rights are a) Cyrus the great king of Persia has given the freedom to the Slaves in 539 BC. b) England - Magna Carta 1215 AC, Petition of Rights in 1628, Habeas Corpus Act 1678 AC, Bill of Rights 1989. c) In USA- Virginia Declaration 1776 and Constitution of United States in 1787. d) France French Declaration of Rights of Men and Citizens 1789. e) India Vedas and Ancient Religious practices and Freedom movement. 5 The Honfeld theory of rights and Duties, See Solmand on jurisprudence Fizarald, 3 rd Ed. 2006, Oxford Publication, p.48. 6 The theories of social contract based on contract between the individuals for protection of life and property by inside and outside of the society. The Natural law theory was based on the reaffirmation of naturally existed rights by the state.

a. Convention on Elimination of Forms of Discrimination Against women 19797 Article 12 and 14 b. Convention on the Rights of the Child 19898 - Article 24 and 27 c. International Convention on the Elimination of all Forms of Racial Discrimination, 19669 d. International Covenant on Economic, Social and Cultural Rights, 196610 Article 11.(1) &(2) e. Committee on ICSSCR Comment No. 12, 1999 Right to Adequate Food f. UN Millennium Development Goal(MDG) g. Universal Declaration of Human Rights 1948 Art. 25 h. Conference on the Nutritional Rights of Man, Barcelona Declaration, 1992 Article 1,2 and 3 i. Economic, Social and Cultural rights, the right to food, report of the special reporter on the right to food, Jean Ziegler, Mission to India 20th August 2nd September 2005. j. Commission on Human Rights, 62 Session, Item 10 of the Provisional Agenda (United Nations Economic and Social Council, 2006)11 k. Final Act of General Agreement on Tariffs and Trade (GATT) Uruguay Round, 1994: Agriculture.12 l. Fourth World Conference on Women, Beijing, China, Sept, 4 15, 1995: m. Beijing Declaration and the Platform for Action Habitat II Conference, Istanbul : United Nations Conference on Human Settlement 1996 n. International Conference on Sustainable Constitution of Fisheries to Food Security (Kyoto Declaration, 1995) o. Promotion and Protection of All Human Rights, Civil Political, economic, Social and Cultural Rights, Including the Right to Development, report of the Special Rapporteur on the Right to Food, Jean Ziegler, Human Rights Council 7th Session, Agenda item 3 (United Nations General Assembly, 2008)13
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Entered into force September 3, 1981 Entered into force on September 2, 1990 9 Entered into force on January 4, 1969 10 Entered into Force on 3 January, 1976 11 http://www.righttofood.org/new/PDF/India%20PDF.pdf 12 http://www.wto.org/english/docs_e/legal_e/legal_e.html 13 http://www.righttofood.org/new/PDF/CHR2008.pdf

p. Right to Food Voluntary Guidelines, to Support the Progressive Realization of the Right to Adequate Food in the Context of National Food Security, adopted by the 127th Session of the FAO Council November, 2004, 2 Parts. (Food and Agriculture Organization, Rome, 2005)14 q. United Nations High Commissioner for Human Rights : Right to food Resolution 2000/2010 r. Universal Declaration on Eradication of Hunger and Malnutrition,197415 Article 1 s. World Summit on Food Security, Rome, 200916 4. Right to food as a Fundamental rights Indian Constitution has ensured protection to the human rights. Both Preamble to the Indian Constitution and Universal Declaration are having the basic goal of recognition of the inherent dignity and the equality and inalienable rights of all member of the human family to provide freedom, justice and peace. The principle of Sovereignty, Socialist, Secular, Democratic, Republic nature of state is to provide Equality, Justice, and Freedom to the people of India for the enjoyment of basic human rights. Fundamental rights and the Directive Principles of the State Policy under part III and Part IV are considered as the basic structure of the Indian constitution. The Entire Covenant on Civil and Political Rights are covered under the part III of the Constitution of India which is enforceable by judiciary. Indian Constitution is having a paramount concern for the protection and promotion of human rights of specially the weaker and vulnerable sections of society.17 Justice Hosbet Suresh argued that the all human rights are fundamental rights under the Indian Constitution. The fundamental right to food can be seen in the following Articles of the Indian Constitution. 1. Article 21 of our Constitution provides that No person shall be deprived of his life or personal liberty except according to the procedure established by Law. The
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http://www.fao.org/righttofood/publi_01_en.html http://www.choike.org/documentos/Food_Human_Right.pdf 16 http://www.fao.org/wsfs/world-summit/en 17 Article 15 and 16 of Indian Constitution.

key term deprivation of living which at many places referred to as right to life can be correlated with the manipulation of right to food under the National Food Security Act (NFSA) 2. Article 14 and 15 of the Indian Constitution envisage equality before law; thereby eliminating discrimination and protecting vulnerable sections such as women and children. 3. Article 39(a) ensures the right to an adequate means of livelihood to all people of the country. 4. Article 41 gives the right to individuals to seek public assistance whenever required. 5. Article 47 emphasizes the duty of the state to raise the nutritional standards and living standards of its people. These Articles of the Indian constitution impart that these targets can be achieved only after the fulfillment of the basic food needs. Thus, these articles and the conditions they created reiterated the need of the National Food Security Act (NFSA). This reflects that the policy-makers aspire to witness a hunger free and healthy nation. The NFSB aims to provide for food and nutritional security in human 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. 5. Laws and Schemes available relating to food security: In India Central and State government have enacted few laws and started few schemes with respect to food security. There are 6 major legislation and 15 schemes in India. Those are, a. Acts: i. Food Safety and Standards Act, 2006 The Acts provides right to Indian citizen so have safe and standards food. ii. Infant Milk Substitutes, Feeding Bottles and Infant foods (Regulation of Production, Supply and Distribution) Act, 1992. This act provides protection against the any adulteration of milk substitutes and Infant foods. iii. National Rural Employment Guarantee Act, 2005 The Act provides a right to Indian Citizen to right to work.

iv. Prevention of Food Adulteration Act, 1954 The acts prohibits adulteration of food. v. Protection of Human Rights Act, 1993 This Act provides a protection for all human rights guaranteed under International Human Rights Documents for which India is signatory and all fundamental rights guaranteed under Indian Constitution. The Act also provides provisions for establishment of NHRC and SHRC for implementation and enforcement of the rights. vi. National Food Security Act (NFSA) 2013. This Act provides barrier free right to food to the Indian Citizen. b. Schemes: i. ii. iii. iv. v. vi. vii. viii. ix. x. xi. xii. Annapurna Schemes 2000-0118 Antyodaya Anna Yojana(AAY)19 Applied Nutritional Programme(ANP) Emergency Feeding Programme, 2001 Integrated Child Development Services and Schemes(ICDS)197520 Mid Day Meal Scheme, 1995 National Food Security Mission, 200721 National Maternity Benefits Schemes National Nutritional Policy(NNP), 199322 Public Food Distribution Scheme(PPS) Sampoorna Grameen Rozgar Yojana(SGRY) Schemes for supply of Food Grains to SC/ST/OBC/Hostels/Welfare Institution 2002-03. xiii. xiv. xv. Targeted Public Distribution Schemes(TPDS) Village Grain Bank Schemes Wheat Based Nutrition Programme (WBNP).

In spite of all these legislation and schemes in India there is no security for food. So the Indian Judiciary by exercise its jurisdiction under Indian Constitution issued certain order to give better security to food.
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http://admis.hp.nic.in/ehimapurti/schemes.html http://admis.hp.nic.in/ehimapurti/schemes.html 20 http://wcd.nic.in/icds.htm 21 http://nfsm.gov.in/NFSM.pdf 22 http://wcd.nic.in/nnp.pdf

6. Food Security and Judicial Activism: Indian Supreme Court is considered as champion of human rights or protector of human rights. Whenever the Legislature and Executive failed to address the real need of the public, the Supreme Court by its liberal interpretation to the fundamental rights guaranteed under Indian Constitution has directed the Legislature and administration to solve the problems. The Supreme Court by its power conferred under the Constitution declared that the Right to Food as a basic fundamental human right. a. PUCL v. Union of India: 23 - Supreme Court declared that the right to food is fundamental rights. Those who are starving because of their inability to purchase foods grains have right to get food under Art. 21. So the Government is under obligation to the provide food free of cost. The Court also directed that the food grains shall be provided to all those who are aged, infirm, disabled, destitute women, destitute men, pregnant and lactating women and destitute children. The Court directed the states to make surplus food grains lying in store rooms available to all of them immediately through PDS shops to avoid starvation and mal-nourishment. Supreme Court passed various orders. Viz. i. 10th January 2008 SC accepted the Wadhwa Commission Report on the function of Public Distribution system and directed the commission to extend its exercise through the entire country, and submit a report within 6 months. ii. 11th November 2007 SC passed order on the National Maternity Benefit Scheme (NMBS) and Janani Suraksha Yojana (JSY) directing the State and Central Government to continue implantation of the NMBS and ensure the pregnant women below the poverty line get cash assistance 8-12 weeks prior to the delivery of their child.

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2000(5) SC ALE.

iii. 12th July 2006 SC in this order constituted a committee headed by Justice Wadhwa, ex-Supreme Court judge and to enquire into various issues relating to the Public Distribution System(PDS), iv. 29th April 2004 SC expressed its concert that all children should 14th March 2006 SC ordered to submit report on Below Poverty Line (BPL) status in the PDS. v. 9th May 2005 Order for modify the National Maternity Benefit Scheme and asked the State Governments to respond the suggestions and complaints on the PDS made by the Commissioners office. vi. 7th October 2004 SC directed to increase the number of Anganwadis from 6 Lakhs to 14 Lakhs, increasing the norms for supplementary nutrition, abolition of contracts in provision of food, provision of detailed information on ICDS in the website and ensuring full utilization of available finance. vii. SC directed the Government of India to provide a plan of action to expand the number of angawadis to cover all settlements, latest by July. The court also directed the all the state government to file a report on eligible number of children vis--vis number covered under the ICDS system. viii. 27th April 2004 The SC has given the direction not to discontinue any scheme without the prior permission of the Court. The court also expressed its concern that children are not being adequately covered in the ICDS Scheme. ix. 20th April 2004 SC passed several directions in this order. Few important are, 1. All states have to start implementing the Mid-day Meal Scheme and it shall be extend up to class 10th Standard and also directed the Central Government to make financial provisions for the same. 2. Dalits to be given preference in appointment of cooks and helpers and mid-day meals shall be provided in summer in draught affected states.

3. All the documents relating to SGRY shall be available to the public scrutiny 4. BPL criterion should be used in selection of Antyodaya beneficiaries. States have been directed to issue AAY cards to all primitive tribes immediately. b. Kishen Pattnayak & Anr. Vs. State of Orissa 24 - Public Interest litigation was filed relating to the misery of people of kalahandi and koraput. Peoples of Llahandi and koraput were died due to starvation due to utter negligence & callousness of administration & the government of Orissa. The Court held that it is the duty of the government to prevent starvation death. Court issued the direction to reconstitute Natural Calamities Committee and to take various steps and social welfare measures to mitigate the hunger, poverty and starvations deaths. The National Calamities Committee was also directed by the court that to keep watch on measure taken and which may be taken in future. c. M K Balakrishnan (1) & Ors. Vs. Union of India & Ors. 25 Write petition filed under Article 32 of Indian Constitution for Conservation of wet lands which would include ponds, tanks, canals, creeks, water channels, reservoirs, rivers, streams and lakes. Although, the writ petition as framed related to protection of wetlands in the country for preservation of the environment and maintaining the ecology, The Supreme Court has suo motu expanded its scope and issued direction to the Secretary, Ministry of Science and Technology, Union of India to file counter affidavit within four weeks stating what measures are being taken to solve the water shortage problem in the country. d. Olga Tellis & Ors. Vs. Bombay Municipal Corporation & Ors. 26 Supreme Court direct that the slum wherever situated will not be removed until one month after the end of the correct monsoon season. if any slum is required to be removed before the dwellers whether censuses or uncensused will not be removed until the same date without making such alternative arrangements.
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Writ Petition (Civil) No. 1081 of 1987Decided on Jan 9, 1989 Suppl (1) SCC258; AIR 1989 SC 677. Writ Petition (C) No 230 of 2001, Decided on March 26, 2009 (5) SCC 507 26 Writ Petition No 5068-50799 of 1981, Decided on July 10, 1985 (3) SCC 545; AIR 1986 SC 180.

7. Conclusion Ultimately, the need of the hour is to take adequate measures to enforce the Right to food in right sense and with right spirit. As said by the Honble former Secretary General to the United Nations Mr. Kofi Annan that We all know what the problems are, and we all know what we have promised to achieve. What is needed now is not mere declaration or promises, but action to fulfill the promises already made.27

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Human Rights Educators Guide, United for Human rights, Los Angeles, USA. P. 1