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ACCESS TO FOOD:A HUMAN RIGHT
Food, which is now become a commodity exclusively commercialized for pecuniary benefits was once (during Stone Age) free hanging on trees and plants in form of fruits and greens, meat and flesh in form of animals, wheat and rice through agriculture. Though now this source of food is only considered as a historical fact to be remembered. Is it right that in a technologically and financially advanced world people die of hunger, Starvation and Mal-Nutrition.?.
let the reason for such famine be the effect of drought, floods or any unforeseen catastrophe, it is the duty of the respectivegovernment in ensuring good and high nutritious living standard ofthe people[1].
Mere natural causes are not the sole reason for paucity of nutritious dietary needs, the major factors are due to poverty and insufficient financial needs of the major sect of people who are not even able to afford a minimum standard of healthy living. But, its again the state’s moral duty and responsibility to provide adequate food to its citizens.
Like many other countries in the world, India also has ample of schemes, food for work programs and food subsidies along with the Public Distribution System’s (PDS) to evade the people from hunger and starvation, but somehow these freebies and other subsidies also don’t reach the greater number of people due to certain administrative misconduct.
These people can be empowered, however, through clear acknowledgement of human rights. The core idea underlying human rights is simple. There are some fundamental things that people require if they are to live indignity, and therefore they should be recognized as having right to those things. These rights are contained in our International law named as ICCPR, ICESCR and UDHR. Atmost, it is the duty of every state and national governments to secure their people’s rights against infringement.
The right to food comes under the shadow of right to life and personal liberty[2], which includes within itself right to livelihood and right to health as established in Menaka Gandhi case[3], it is one of the most basic human rights. No government action can be allowed to restrict this right to people.
Human rights are inalienable, the right to food in india must be made justiciable in courts of law. All those suffering from hunger and starvation are also being denied other basic human rights. And in all the cases, these rights are not affected by natural causes or lack of resources, but rather by systematic defects and ineffective administration.
The Main objective of this paper is to see ineffectiveness of the right to food which per se a fundamental right due to administrative default and judicial ineffectiveness,leads to death’s due to hunger and malnutrition.
From a nation dependent on food imports to feed its population, India today is not only self-sufficient but also has a substantive reserve. The progress made in the field of agriculture during the 1970s was a big milestone in food production starting from the Green Revolution during late 1960s by M.S. Swaminathan, after the great bengal famine of 1943. Even at that time,“Florence Nightingale” (English statistician and social reformer) stated that famine in india were caused due to absence of political and administrative setup[4].
All the above said facts remained just arguments until the supreme court was invoked by a case filed by a non-governmental organization in india, the PUCL (People’s Union for Civil Liberties), this suit illuminated the dormant areas of law piercing into the immoral and inhumane practices of the government of india with regard to food distribution.
The case is being tried on the basis of India’s constitution and its federal and state laws, especially its famed Famine Code[5].
PUCL[6] submitted a writ petition to the supreme court asking three major questions:
i)Starvation deaths is a natural phenomenon while there is a surplus stock of food grains in the government godown. Does the right to life mean that people who are starving and who are too poor to buy food grains ought to be given food grains free of cost by the state from the surplus stock lying with the state, particularly when it is reported that a large part of it is lying unused and rotting?
ii)Does not the right to life under Article 21 of the constitution of India include the right to food?
iii)Does not the right to food, which has been upheld by Hon’ble Court, imply that the state has a duty to provide food especially in situations of drought, to people who are drought affected and are not in position to purchase food?
As a result of the claims filed, the supreme court pronounced that utmost importance is to provide food for the aged, disabled, destitute women and men, lactating women who are in danger of starvation. And all state governments were directed to take their entire allotment of foodgrains under various schemes from the Central Government. Further, the court ordered for the implementation of food for work programs in all the food scarce areas.
The right to food guarantees freedom from hunger and access to safe and nutritious food. Several key human rights principles are fundamental to guaranteeing the right to food[7]:
Availability: Food should be available in a quantity and quality sufficient to satisfy the dietary needs of individuals, free from adverse substances, and acceptable within a given culture.
Accessibility:Food should be physically and economically accessible in ways that do not interfere with the enjoyment of other human rights.
Sustainability: Food should be secure, or accessible, for both present and future generations.
Non-Discrimination:Any discrimination in access to food, as well as to means and entitlements for its procurement, on the grounds of race, colour, sex, language, age, religion, political or other opinion, national or social origin, property, birth or other status constitutes a violation of the right to food.
Article 47 obligates the state to regard, as among its primary duties, the raising of the level of nutrition and the standard of living of its people and the improvement of public health. In particular, the state is to endeavour to bring about prohibition of the consumption, except for medicinal purposes, of intoxicating drinks and drugs which are injurious to health[8].
The Supreme Court directed the Food Corporation of India not to allow sub – standard foodgrains to be distributed[9]
Duty of the state to raise the level of nutrition and the standard of living and to improve public health[10]
“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 purposes of intoxicating drinks and of drugs which are injurious to health[11]”.
This Article makes improvement of public health a primary duty of the State. Hence, the court should enforce this duty against a defaulting local authority, on pain of penalty prescribed by law, regardless of the financial resources of such authority[12].
Anything which is hazardous to public health is a potential danger to the fundamental right to ‘life’ under Article 21. In this view, a division bench of the Allahabad High court has issued mandamus restraining the state from selling in the open market chemically processed soyabean which was unfit for human consumption[13].
The human right to adequate food has been recognized in different international instruments, most notably the Universal Declaration of Human Rights (UDHR); the International Covenant of Civil and Political Rights (ICCPR); the International Covenant on Economic, Social and Cultural Rights (ICESCR); the Convention on the Elimination of All forms of Discrimination Against Women (CEDAW); and the Convention of the Rights of Child (CRC).
While legislative protection is needed to ensure the implementation of the right to food at the national level, it is only one of a number of necessary measures. This study reviews legal protection at the national level through constitutional provisions, national legislation and the direct applicability of international law. It builds on research undertaken for papers dealing with recognition of the right to food at the national level[14] and for the guide on legislating for the right to food[15], complemented by further research by the FAO Legal Office.
The study briefly reviews the right to food in international law and discusses whether there is a duty to take legislative action. Having examined constitutions protecting the right to food and the different ways in which they do so, it identifies those countries in which the right to food is directly applicable by virtue of international human rights treaties being incorporated into the domestic legal system. Finally, it summarizes country progress with regard to framework law and indicates the number of countries that have adopted, or are in the process of drafting, a framework law on the right to food or food security[16].
It does not cover national courts’ interpretation of constitutional or treaty provisions in terms of the justiciability of the right to food, nor does it explore whether the human rights treaties in question would be considered self- executing in individual cases.
The human right to adequate food is recognized and reaffirmed in a number of binding and non – binding international instruments. Most relevant of these are[17];
- Universal Declaration of Human Rights (UDHR): article 25 recognizes the right to an adequate standard of living including food.
- International Covenant on Economic, Social and Cultural Rights (ICESCR): article 11 recognizes the right to an adequate standard of living, including adequate food, and the fundamental right to be free from hunger as a separate right.
- Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which recognizes in article 12 the right of pregnant and lactating women to special protection with regard to adequate nutrition and in article 14 the right of rural women to equal access to land, water, credit and other services, social security and adequate living conditions.
- Convention on the Rights of the Child (CRC): article 25 recognizes the right to the highest attainable standard of health, and article 27 the right to an adequate standard of living which, in both articles, includes food and nutrition.
Legislations in other Countries[18]
U.S.A
“The transportation or importation into any state, territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.[19]”
RUSSIA
“Everyone shall have the right to a favourable environment, reliable information about its state and to restitution for damage inflicted on his health and property by ecological transgressions.[20]”
CHINA
“Citizens of the people’s republic of China have the right to material assistance from the state and society when they are old, ill and disabled. The State develops social insurance, social relief and medical and health services that are required for citizens to enjoy this right.[21]”
PAKISTAN
“The State prevent the consumption of alcoholic liquor otherwise than for medical and in the case of non-Muslims religion purpose.[22]”
IRELAND
“The State endeavour to ensure that the strength and health of workmen, men and women, and the tender age of children shall not be abused and that citizens shall not be forced by economic necessity to enter avocations unsuited to their sex, age or strength.[23]”
Performance of the Food Management System
A Nationwide public distribution system, which transfers available supplies to entitled consumers, is entirely run by the State Governments. It is closely supported by the Central Government through procurement of food grain from surplus regions as well as by maintaining buffer stocks. This initiative by the central government is intended to maintain self-sufficiency and to increase production in food grains. The maintenance of buffer stocks by the central government on the other hand is intended to guard against volatility in basic food grain prices and achieve the necessary moderation in the prices of food grain in the open market in the event of any unforeseen fall in production, which takes place mainly due to climatic conditions such as drought. The buffer stock thus provides an effective means of intervention by the centre in order to control prices and ensure availability and access to the especially vulnerable population.
The food management system and food price policy thus consist of three major instruments, namely procurement at minimum support prices, the maintenance of buffer stocks, and the public distribution system.
MSP and Procurement
While support price policy for agricultural commodities seeks to assure remunerative prices to farmers in order to ensure higher production and investment, it also tries to safeguard the interest of consumers by ensuring supplies at affordable and reasonable prices, through the provision of subsidy. It may be mentioned here that the benefits of the minimum support prices (MSP) offered to farmers depends on the level of awareness of farmers, which is still reported to be quite low.[24]
Buffer Stocks
The maintenance of buffer stock is important for ensuring national food security. Stocks mainly rice and wheat are regularly maintained from year to year at a substantial cost in order to effectively take care of variations in domestic food grain output.
Access to Public Distribution System
The long established PDS has played a vital role in partially meeting the essential food and fuel needs of households in india. The operation of the PDS is supplementary in nature and does not meet the entire food requirements of any household however it does effectively protect the household by providing a basic entitlement at affordable prices and at convenient locations through its wide network of Fair Price Shops.
The proportion of food grains accessed through the PDS in the total household consumption provides an indicator of the effectiveness of the PDS in ensuring food security in India. As seen the national level of consumption requirement met through the PDS by households has increased significantly during the period 1993-94 to 2009-10. However, there are wide interstate variations reflecting the fact that the PDS has performed much better in meeting household requirements in some states as compared to others. The share of PDS in the total consumption of both rice and wheat is seen to be much higher in Andhra Pradesh, Chhattisgarh, Tamil Nadu, Odisha, Karnataka, Jammu and Kashmir. In these states the PDS appears to be functioning well and providing access to households.
The trends in the per capita calorie, protein and fat intake of the population are often used in assessing the adequacy of food and nutrition. The sustainable calorie intake rate for a person in rural area is 2400 kcal and 2100 kcal for person in urban area.
Year / Calories / (kcal)Rural / Urban
1983-84 / 2240 / 2070
1987-88 / 2233 / 2095
1993-94 / 2153 / 2073
1999-00 / 2148 / 2155
2004-05 / 2047 / 2021
2009-10 / 2147 / 2123
Source: NSSO reports.
The above chart clearly specifies that, the people in rural areas where there is comparatively more manual labour than the people in urban areas do not meet their basic calorie intake rate.
Nutritional Status
We now turn our attention to nutritional status especially among the most vulnerable groups namely children. The National Nutritional Monitoring Bureau provides the nutritional status of rural households in nine sampled states. The report categorises children in the age group of 1 to 5 years into different nutritional grades based on weight for age. The data thus classified indicates that the proportion of underweight children declined significantly from a level of 77 percent in 1975-79 to 55 percent in 2004-05.
Nutritional Parameter / 1992-93NFHS-1 / 1992-99
NFHS-2 / 2005-06
NFHS-3
Stunted / 52.0 / 45.5 / 38.4
Wasted / 17.5 / 15.5 / 19.1
Underweight / 53.4 / 47.0 / 45.9
Source: National Family Health Survey.
The data provided by the National Family Health Survey (NFHS) indicates that the proportion of underweight children declined marginally from 47 percent in 1998-99 to 45.9 percent in 2005-06 although stunting among children declined more impressively, the disturbing fact was that the percentage of children reported to be wasted in 1998-99 was 15.5 percent but this figure increased to 19.1 percent in 2005-06.
Determinants of Malnutrition
The major factors that influence the level of nutrition in most developing countries are[25];
- Household food security (caused by low availability and access).
- Inadequate maternal care and child care practices.
- Lack of healthcare services, clean drinking water and sanitation and
- High gender inequality.
The Targeted Public Distribution System[26]
The Public Distribution System is designed to improve food security at the household level in India. The PDS provides commodities like rice, wheat, sugar, edible oils and kerosene to identified and registered beneficiaries through a network of dedicated retail outlets, known as fair price shops at fixed prices that are normally lower than open market prices. The PDS with its national network of over 4.5 lakh fair price shops and distributing commodities worth more than Rs 300 billion annually to about 160 million households is perhaps the largest distribution network in the world. It has evolved over many decades as a vital instrument of food policy in india for coping with scarcities, controlling prices of essential commodities in the open market and ensuring physical availability of essential supplies at affordable prices for the poor. The scheme however is supplemental in nature and is not intended to provide the entire requirements of household.
The presently operating Targeted Public Distribution System (TPDS) is a greater approach to assure availability and accessibility of food products to the vulnerable sect of people. In this the household/beneficiaries are treated differently on the basis of their income. The entire household population is classified into two income groups, the households who has been officially declared as above poverty line as APLs and those of below poverty line as BPLs. Again, in BPL household there is another sub-division who constitute the “poorest of the poor” they are called the AAY (Antyodaya Anna Yojana) category households mainly consisting of the aged and destitute population, who are uncared and avoided by younger members of the family.