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Right to Food Under Indian Constitution And Its Present Scenario

According to the utilitarian theory, the legislator to ensure the happiness of the community must strive to attain the four fundamental freedoms namely subsistence, abundance, equality and security for citizens. The duty to provide security demands that the honour, status and expectations of the people are to be protected. Therefore, the Nation State has the duty to frame legislation to provide the means which ensures the freedom from hunger. The starving people of India have an expectation from the Government to create conducive environment under which people can feed themselves and the Nation State is required to fulfill the expectation of the people.

Right to Food as a Legitimate Expectation

Most of the international instruments on right to food were ratified by the Government of India more than two decades back. Over the years the people of India have developed a legitimate expectation that its Government shall protect the right to food of its people and no person in India shall be compelled to go to bed hungry. The doctrine of legitimate expectation has been upheld by the judiciary as a right enjoyed by the people of India.

The Government is duty bound as a good administrator to fulfill the legitimate expectation of the people. Therefore in every instance of hunger and malnutrition the Government fails to meet up to the legitimate expectation of the people and all such cases are the violation of this right guaranteed under the Constitution of India.

Protection of Right to Food under Constitutional law of India

The Constitution of India expressly does not guarantee the right to food of the people. However, there are various provisions in the Constitution which indicate the intention of the Constituent Assembly to provide to the people a guarantee of protection of the nutritional health of the people.

(a) Right to Food and Preamble of the Constitution

Socialism is one of the signature tunes of the Constitution. The concept of democratic socialism aims to put an end to poverty in India. The principle of socialism is also embodied in the various provisions of the Part III and Part IV of the Constitution.

Socialism should be implemented in India in its true spirit. According to John Rawls a society is said to be socialist when the egalitarian principles are followed, rights are valued and the dignity of each individual is upheld. Socialism operates as an important tool in the campaign towards realizing the right to food of the people living below the poverty line.

The concept of socialism empowers the Government to adopt measures to diminish the difference between the rich and the poor. Such measures will end poverty in India to a large extent. The reduction of poverty shall lead to a reduction in hunger and malnourishment and help realization of the right to food of the people. The Indian Constitution promotes social engineering.

The political system of the country is based on the social and economic democracy. In order to achieve this new social order distribution of wealth is required to be made on egalitarian basis. A socialist society should have a planned economy consisting of an effective distribution system and controlled pricing. The concept of social engineering adopted by the Indian legal system can be utilised to remodel the society.

An egalitarian society is definitely an important step towards the realization of the right to food. The socialist Government cannot justify hunger when it produces enough food to feed its entire population. It is required to create a food distribution system with a socialistic approach. Such Government is required to make a periodic fixed term programs through which it can address the right to food of the poor.

The economic resources of the country are not utilised as per the spirit of socialism. The economic growth of the country should lead to upliftment of the condition of life of the vulnerable section of the society. Therefore improvement in rate of economic growth should lead to decline in the percentage of people affected by malnutrition and starvation resulting in improvement in their development indices. However in India the growth of the economy has been utilised to benefit the rich.

Thus the concept of socialism has been neglected by the Government. The rich in the country get various incentives to start an industry but the poor farmers who grow food for the country are unable to meet their own dietary needs.

(b) Right to Food as a Fundamental Right

The Constitution guarantees the fundamental right to a dignified life. The right to life under the Constitution does not merely means animal existence. Life guaranteed under this Constitution does not only include physical existence. It includes the right to live with human dignity. Since the need for food to satisfy hunger is the basic necessity of life and without food life becomes impossible, the right to food is thus protected under the right to life.

In a number of judgments the judiciary has recognised the right to food as a right flowing from the right to life guaranteed under the Constitution of India. The right to life imposes upon the Nation State the Constitutional obligation to ensure that there is no violation of the right to food.

(c) Right to Food as Integral Component of Basic Structure of the Constitution

The Constitution consists of certain basic features or framework which cannot be altered through the process of amendment. The essential elements of individual freedom like immunity from starvation constitute the basic structure of the Constitution.

Freedom from hunger is one of the most elementary needs for human existence, therefore the right to food is an integral part of the basic feature of the Constitution and is protected from all legislative interference that aims to dilute or abrogates the right. The mandate of the Constitution to build a welfare state and an egalitarian society is another basic feature of the Constitution. An egalitarian society ensures equality in distribution of the food produced in the country as well as the equal distribution of the wealth of the country therefore, its mandate protects the right to food of the people.

The rights guaranteed under the golden triangle consisting of the right to equality, right to freedom, and right to life, is the basic feature of the Constitution as the provisions stands for equality and rule of law. The rights flowing from the fundamental right to life constitute the core value and if such rights are allowed to be abrogated it shall alter the very nature of the Constitution. The right to food is one of the rights flowing from the bundle of rights guaranteed under the right to life.

(d) Right to Food and Directive Principles

The directive principles are non justiciable policies which the Nation State is required to provide to its people with the development of the economic resource of the country. The directive principles are inserted in the Constitution for the guidance of the Nation State. These policies are fundamental in the governance of the country. They impose an obligation on the Nation State to apply these policies in law making. The directive principle consists of the fundamental features of the Constitution.

The fundamental rights like the equality clause and the right to life can be used as a means to implement the directive principles. Part IV of the Constitution is as important as any other fundamental right in the governance of the country. It has now attained the status of a fundamental right. The directive principle and fundamental right supplements each other and both together form the conscience of the Constitution. With the economic development, to further social justice a superior position to that of the fundamental right was given to the directive principles. The directive principles could curtail the fundamental rights. The directive principle calls upon the Nation State for establishment of a Welfare State in India.

A Welfare State promotes a just socio economic order and thereby aids the realization of the right to food of the people. The directive principles of state policy directs the Nation State to ensure to its people in course of time a social order based on justice social, economical and political. In order to provide economic justice the directive principle calls upon the Nation State to minimize the inequalities of income, status, facilities opportunities amongst individuals and groups. It can be utilised harmoniously with the right to equality, right to freedom and the right to life to redress the sufferings of the poor and enforce their economic rights. Thus, the directive principles promote the realization of the right to food of the people.

The directive principles require the Nation State to formulate its policies to secure the adequate means of livelihood to the people. Absence of an adequate means of livelihood leads to poverty. As hunger in India is the result of poverty rather than lack of production, means of livelihood shall eliminate hunger and malnutrition from the country. The Apex Court has taken recourse to this provision to enlarge the scope of right to life to include therein the right to livelihood. The judiciary has established that the right to livelihood cannot be denied except by a fair procedure.

However the right to livelihood does not compel the Nation State to provide work to its citizens. The right to livelihood in India does not ensure the right to work.xlv The Constitution of India imposes a primary duty on the Government to improve the public health. The scope of this provision of the Constitution is very wide. It not only includes the right to food of the people which is nutritiously adequate to lead a healthy life free from all hidden hunger but also to ensures that the food available is free from all harmful substances and is fit for human consumption.

This provision can be enlarged to impose an obligation on the Government to prohibit the exploitation of ignorant public by marketing the genetically modified food grains for economic gains which are harmful for humans. The Supreme Court has held that even the food distributed through the public distribution system is required to pass the litmus test. The Government should confer to the letter and spirit of this provision and it cannot distribute food grains unsuitable for human consumption.

The reports of various committees have focused on the widespread hunger in India. This establishes that the food grain produced in the country is not equally distributed and the Government has failed to live up to the constitutional mandate. As the country is having a high growth rate, now the directive principles can no longer be described as non enforceable right. The right to food calls for a similar protection as given to the right to education.

The right to education is provided under the directive principles of the Constitution. The Supreme Court has held that the right to education flows from the right to life. Thereafter the right was elevated to the status of the fundamental right and the Right to Education Act, 2009 was adopted by the legislature.

International Status Of Right To Food In Comparison With Indian Rules

Many women, men and children affected by chronic undernourishmentsuffer from what the UN Food and Agriculture Organization (FAO)calls ‘extreme hunger’. This means that their daily ratio of calories is well below the minimum necessary for survival. Many people die on a daily basis from starvation. Malnutrition, also called the ‘hidden hunger’ refers to inadequate intake of calories, proteins or nutrients.

Thus, malnutrition necessarily encompasses undernourishment; however it stretches beyond the latter since it might be that a person receives enough calories but not enough nutrients. Malnutrition is quieter than famine in the sense that it does not attract the attention of the media but it has no less tragic implications for those suffering of this disease. Malnutrition heightens vulnerability to other illnesses and almost always has serious physical and mental effects, the lack of brain cell development, inadequate growth.

Serious malnutrition can also be hereditary, as many malnourished mothers give birth to malnourished babies. A vicious circle ensues.The right to food is a human, legal and clearly defined right which gives rise to obligations of states to reduce both chronic undernourishment and malnutrition.

The three main elements of the right to food are: availability, adequacy, and accessibility of food. Availabilityrefers to enough food being produced for both the present and the future generations, therefore entailing the notions of sustainability, or long-term availability, and the protection of the environment.

Adequacyrefers to the dietary needs of an individual which must be fulfilled not only in terms of quantity but also in terms of nutritious quality of the accessible food. It also includes the importance of taking into account non-nutrient-values attached to food, be they cultural ones or consumer concerns. Accessibility(economic) implies that the financial costs incurred for the acquisition of food for an adequate diet does not threaten or endanger the realization of other basic needs (e.g housing, health, education).

Physical accessibility implies that everyone, including physically vulnerable individuals, such as infants and young children, elderly people, the physically disabled, the terminally ill, and persons with persistent medical problems, including the mentally ill, should be ensured access to adequate food.

In the above mentioned Proceedings, the Commission has taken the view that the Right to Food is inherent to a life with dignity, and Article 21 of the Constitution of India which guarantees a fundamental right to life and personal liberty should be read with Articles 39(a) and 47 to understand the nature of the obligations of the State in order to ensure the effective realization of this right.

Article 39(a) of the Constitution, enunciated as one of the Directive Principles, fundamental in the governance of the country, requires the State to direct its policies towards securing that all its citizens have the right to an adequate means of livelihood, while Article 47 spells out the duty of the State to raise the level of nutrition and standard of living of its people as a primary responsibility. The Constitution thus makes the Right to Food a guaranteed Fundamental Right which is enforceable by virtue of the constitutional remedy provided under Article 32 of the Constitution.

The Commission has, therefore, additionally taken the view that there is a fundamental right to be free from hunger and that starvation constitutes a gross denial and violation of this right. Holding ‘mis governance’ resulting from acts of omission and commission on the part of public servants, to be the reason for starvation deaths occurring in different parts of the country, the Commission have stated that these are of direct concern to it under the provisions of the Protection of Human Rights Act, 1993.

Persons living in conditions of poverty and hunger have often been found to be suffering from prolonged malnutrition. Even when their deaths could not, in strictly clinical terms, be related to starvation, the tragic reality remained that the often died of prolonged mal-nutrition and the continuum of distress, which had rendered them unable to withstand common diseases such as malaria and diarrhea. The Commission considered this situation to be all the more painful in view of the fact that granaries of the Food Corporation of India were over flowing.

The continuum of distress should be viewed as the necessary condition for the prevalence of starvation. The Commission also found merit in the view of the petitioner that there was need for a paradigm shift in public policies and the Relief Codes in this respect and that the shift had to be made from the domain of benevolence to that of the right of a citizen. The Government of India’s current conceptualization of calamity as well as the reason of its prevalence, has limited relief to the short term only. In contrast, a human rights approach to food and nutrition would imply that the beneficiaries of relief measures should be recognized as claim holders.

Viewed from this perspective, the prevalence of distress-conditions threatening starvation constitute an injury requiring the imposition of a penalty on the State. The Commission was of the view that the remedy provided under Article 32 of the Constitution applied to groups no less than to individuals. Theright to food, and its variations, is ahuman rightprotecting the right for people to feed themselves indignity, implying that sufficientfoodis available, that people have the means to access it, and that it adequately meets the individual dietaryneeds. The right to food protects the right of all human beings to be free fromhunger,food insecurityandmalnutrition.

The right to food does not imply that governments have an obligation to hand out free food to everyone who wants it, or a right to be fed. However, if people are deprived of access to food for reasons beyond their control, for example, because they are in detention, in times of war or after natural disasters, the right requires the government to provide food directly.

The right to food is a human right. It protects the right of all human beings to live in dignity, free from hunger, food insecurity and malnutrition. The right to food is not about charity, but about ensuring that all people have the capacity to feed themselves in dignity. The right to food is a legal right. The right to food is protected under international human rights and humanitarian law and the correlative state obligations are well-established under international law.

The right to food is recognized in article 25 of theUniversal Declaration on Human Rightsand article 11 of theInternational Covenant on Economic, Social and Cultural Rights(ICESCR), as well as a plethora of other instruments. Noteworthy is also the recognition of the right to food in numerous national constitutions.

The Government of India has adopted a very restricted perception of the right to food. All legislation and the proposed Food Security Bill for realization of the right to food mostly seek to provide food assistance to the malnourished people.

The legislative framework of the country is not in conformity with the international protection. Under the international law the Government has three obligations, namely the obligation to respect, obligation to protect and the obligation to fulfill (obligation to facilitate and obligation to provide). The legislative framework of the country is an attempt to discharge the obligation to provide.

Written By : Ritika Gupta

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