[This is a Guest Post by Sanjay Parikh, Sr. Adv. and Sanjana Srikumar].
The order passed by the Delhi High Court, on 27.04.2020, raises important questions regarding the State’s obligation to ensure faithful implementation of right to food, what should be the court’s normal approach while dealing with the right to food, and what it should do in an extra-ordinary situation like the present pandemic, so that no one goes hungry. The Delhi High Court was considering an application for urgent reliefs in Delhi Rozi Roti Adhikar Abhiyan v. Union of India, a pending case that challenges the notification making Aadhaar mandatory for receiving benefits under the National Food Security Act. The primary issue is that right to food cannot be made dependent on Aadhar registration because both operate in different fields, the right to food being non-derogable. The application, however, was limited to urgent reliefs on the basis of field reports, which showed the failure of the food security machinery in Delhi during the COVID-lockdown. The problem aggravated because the government failed to constitute ‘grievance redressal authorities’ under the Act and also implement transparency measures to ensure that ration shops and other food distribution centres remain operational and distribute ration without any delay.
The High Court accepted the argument of the petitioner that right to food will be effective only when transparency and accountability become a part of the system, which, inter alia, mean that the Government must show, by putting the information in the public domain, that the ration has actually reached the people. The Court directed that the Government shall ensure that ration shops remain operational on all seven days at fixed timings and that food distribution shall be ensured to both PDS and non-PDS individuals (persons without ration cards). To safeguard compliance, several interim directions were passed including the supervision and monitoring by the Sub-Divisional Magistrate of each district; uploading information on food grains distributed to PDS and non-PDS persons on a daily basis; constitution of a provisional grievance redressal mechanism, where action taken in response to complaints shall be uploaded on the website; and wide publicity of compliance with the directions of the Court.
While the petition as well as the present application remain pending and the manner in which statutory and constitutional issues are considered remains to be seen, this case raises questions about the manner in which Courts should evaluate State’s compliance with regard to the right to food, as mentioned above. This issue came up specifically in the context of starvation deaths and hunger prevailing in the KBK Districts of Orissa (in Indian Council of Legal Aid & Advice v. State of Orissa, W.P.(C) 42 of 1997) which the State Government was attributing to drought and other related causes, but not the State’s failure. The litigation in the KBK case, which lasted up to ten years including continuous monitoring by the NHRC, presents interesting lessons to consider the questions of State’s obligations vis-à-vis the right to food.
The Right to Food as the Right to Transparency
In the KBK case, the State denied that there was hunger or starvation deaths owing to State’s negligence. The blame was put on recurring drought or other natural causes. The deaths were attributed to diseases like malaria, diarrhea and eating of leaves by the tribals. For justifying that ‘food’ existed, the State had shown the presence of utensils in the homes of those who died due to starvation. The strange logic was that the existence of utensils would prove the presence of food! The Special Rapporteur appointed by the NHRC to find out the correct facts, however, noticed utter poverty, prolonged malnutrition and non-implementation of Government schemes. The cause was not drought but the Government’s inaction and total disregard with respect to its accountability as a welfare state. The NHRC thus evolved a mechanism, which ensured transparency, accountability, and a monitoring system, so that food is provided to all who need it, in time and without any break. Transparency brought in the desired result, namely, that the right to food was not made dependent on mere assertions of the government based on the figures and schemes, but that food actually reached the needy, and that fact was ascertainable in the public domain.
There is thus a direct nexus between the right to information and transparency with effective implementation of right to food. Prof. Amartya Sen in this context pointed out that one of the reasons for Bengal Famine of 1943 was the silencing of honest reporting and independent media. That is why participation of civil society becomes important. It helps in disseminating the information about relief and ensuring that it actually reaches its destination. It also helps in providing suggestions for how the system can be improved. After all, the endeavor of the State coupled with its duty ought to be that no one should go hungry. Such a focus requires recognition of the right to food as a bundle of rights consisting of allied rights including the right to transparency, as well as the recognition of the interdependence of socio-economic rights and civil and political rights. In K. S. Puttaswamy (Privacy-9j.) v. Union of India, [(2017) 10 SCC 1, para 269], Chandrachud, J. stressed upon how transparency – as opposed to opacity – helps in realization of rights by the poor, for whom they are meant:
Capture of social welfare benefits can be obviated only when political systems are transparent and when there is a free flow of information. Opacity enures to the benefit of those who monopolize scarce economic resources. On the other hand, conditions where civil and political freedoms flourish ensure that governmental policies are subjected to critique and assessment. It is this scrutiny, which sub-serves the purpose of ensuring that socio-economic benefits actually permeate to the underprivileged for whom they are meant. Conditions of freedom and a vibrant assertion of civil and political rights promote a constant review of the justness of socio-economic programmes and of their effectiveness in addressing deprivation and want. Scrutiny of public affairs is founded upon the existence of freedom. Hence civil and political rights and socio-economic rights are complementary and not mutually exclusive.
The measures for transparency, in fact, are specifically stressed upon in the National Food Security Act [Section 12(2)(b),(d); Chapter VII: Grievance Redressal Mechanism]. Existence of grievance redressal mechanisms, social audit and constitution of vigilance committees are necessary for effective implementation of the Act. In Swaraj Abhiyan v. Union of India [(2016) 7 SCC 498], the Supreme Court recognized the significance of creation of these statutory authorities, as opposed to knee-jerk reactions by Courts as ad hoc measures.
In this context, provisions such as Section 54 of the Disaster Management Act, 2005, which criminalize “false alarm or warning as to disaster or its severity or magnitude, leading to panic”, do so without adequately defining these terms- that is, clarifying whether reporting contrary to government data may be classified as false. For example, providing information about people suffering from hunger, or the number of migrant workers walking without food, cannot be criminalized. This information may contradict government data but it should be realized that this alone brings in improvement. The government cannot suppress the data regarding sufferings of the people and those succumbing to it. The Supreme Court order dated 31.03.2020, which referred to these provisions and directed media houses to refer to information provided by the State, albeit without intending to stifle free debate on government measures, only adds to further uncertainty regarding the ability to report on State action and contradict State data during disasters. In the absence of mechanisms to ensure State obligations to provide continuous data, the enforcement of socio-economic rights would remain elusive.
Evaluating State failures
In the COVID pandemic, the State is insisting on precautionary measures, which are necessary, but is failing to address the consequences and its impact on the poor. The migrant workers, who suffered during prolonged lockout were found begging for food. They travelled several hundred kilometers on foot to reach their homes. They are now without any resources. They could not reach in time during harvesting and therefore, not much is left with them for sustenance of the family. They are uncertain about their return to the urban areas for survival. These very reasons cause hunger and starvation. The duty of the welfare state and courts in this situation becomes important. To prevent the perpetuation of the cycle of hunger, the State has a heavy obligation to act immediately with plans of action. In doing so, the State must adhere to what Prof. Amartya Sen has called as the ‘entitlement approach’ i.e. ensuring right of a person to command food legitimately, through available legal means, as a part of ‘bundle of commodities’, to avoid hunger or starvation. The NHRC in the KBK Case had proceeded with this approach i.e.to not only fight with existing hunger but also to prevent its occurrence in future. This approach, in analyzing hunger from the perspective of the failure to ensure legal entitlements, squarely places the onus on State machineries to ensure the protection of life despite extenuating circumstances- drought, illiteracy, unemployment or the present calamity. The NHRC endorsed this approach and adopted a rights-based view with comprehensive monitoring of social security schemes rather than a policy-based food availability view. This idea has also subsequently gained legislative acceptance with the enactment of the National Food Security Act as well as the right to food litigation in PUCL (PDS Matters) v. Union of India & Ors.(2013) 2 SCC 663.
Unfortunately, recently, the Supreme Court has left this right to the policies of the State, without even examining the policies and without discharging its constitutional obligation that right to food or the right not to remain hungry is the basic right of a person, which a welfare state in a democracy is bound to implement.
State justifications and resource constraints
Whether resource constraints can be pleaded by the State while dealing with the right to food, remains a relevant question. The answer depends on the nature of the right, which as mentioned above, is non-derogable, basic and fundamental in its implementation. The United States Presidential Commission on World Hunger, established to investigate the problem of hunger and malnutrition in the world, examined extensively the data on hunger world- over and also reviewed the national and international existing programs, both private and public. The Commission in its recommendations (1980) stated that the right to food was the most basic of all human rights, without fulfillment of which the protection of other human rights would be a mockery. The report noted:
Whether one speaks of human rights or basic human needs, the right to food is the most basic of all. Unless that right is first fulfilled, the protection of other human rights becomes a mockery for those who must spend all their energy merely to maintain life itself… Unless all governments begin now to act upon their rhetorical commitment to ending hunger, the principle that human life is sacred, which forms the very underpinnings of human society, will gradually but relentlessly erode.
The fiscal or the resource crunch argument cannot be cited by a welfare state to justify non-fulfillment of its obligations. In adjudicating issues of hunger and starvation, it is essential for Courts to adopt approaches that consider the right to food justiciable and enforceable, to refrain from reliance on the State’s stand of the adequacy of its measures, and to foster processes that ensure accountability and transparency.
It is also apposite to emphasize here that the right to food has been recognized as the ‘minimum core obligation’ of the State party under the International Covenant on Economic, Social and Cultural Rights. What this obligation means, has been explained in the General Comment No. 3 on ‘The Nature of State Parties’ Obligations’ by the UN Committee on Economic, Social and Cultural Rights as follows:
…Article 2 (1) obligates each State party to take the necessary steps “to the maximum of its available resources”. In order for a State party to be able to attribute its failure to meet at least its minimum core obligations to a lack of available resources it must demonstrate that every effort has been made to use all resources that are at its disposition in an effort to satisfy, as a matter of priority, those minimum obligations.
It is thus clear that the concept of minimum core obligation is in consonance with the ‘entitlement approach’ which Prof. Amartya Sen explained and NHRC followed in the KBK Case. Right to food involves utilization of all the resources by the State at its disposal and therefore, failure to prevent hunger or starvation must invite judicial scrutiny where State must discharge its onus of adhering to the minimum core obligations. However, despite reference to the above standard, Courts have given deference to State’s limitations, even in the cases of core obligations. For instance, the South African Constitutional Court, in Minister of Health v. Treatment Action Campaign, has found that socio-economic rights do not create positive right enforceable irrespective of the State limitations considered and that “it is impossible to give everyone access even to a ‘core’ service immediately.” Similarly, the Indian Supreme Court in Swaraj Abhiyan (supra, para 114), while correctly rejecting State justifications regarding fiscal failures, reiterated that “in matters involving financial issues and prioritization of finances, this Court should defer to the priorities determined by the State” These approaches are antithetical to the core principles of the Covenant on Economic, Social and Cultural Rights, which are treated as part of Article 21 under our Constitution.
In the COVID situation, with the problems escalating in future, the first and foremost duty of the State is to ensure that on account of inadequacy of food or deficiency in implementation, nobody should suffer from hunger or succumb to it. The courts have to be extremely alert in ensuring that the due and timely performance of constitutional obligations is not left on the executive’s will. The right to food must be taken as a right based entitlement and not left as a policy matter of the State. This approach alone will be able to prevent deaths due to hunger and malnutrition in the days to come, which if not tackled properly, will be worse than the pandemic.
[The research for this post draws from an upcoming publication by Mr. Parikh on judicial approaches to hunger in the KBK districts.]