634 harsh mander, food from the courts

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12/23/12 Harsh Mander, Food from the courts

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Food from the courts

A R S H M A N D E R

DEMOCRATIC governments the world over, guarantee to all people wholive within their boundaries the most essential and basic of all rights theright to life. The fundamental right to life is understood to imply that, forinstance, if a person is detained by the state, and dies while in its custody,either because of torture or extra-judicial killings, state authorities arecriminally liable for the death. The actual realization of this right,especially by powerless and disen-franchised people, remains of courseflawed and often bitterly contested in many countries. But the theory ofsuch state accountability is rarely contested within the framework of liberaldemocracy.

The right to sufficient and assured food to live an active and healthy lifewith dignity is in principle also an essential component of the fundamentalright to life, because life itself is impossible without food. Yet, stateauthorities are conventionally not held responsible when a person loses herlife because she cannot access sufficient food for her survival in the sameway as a person who dies because the state directly takes her life withoutresort to due process of law. The death of a citizen by starvation is seen as amoral failure of the state, but rarely one that entails direct punishable

criminal or even civil liability of public authorities who were charged withthe 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 involvedhere. For one, where does the duty of the state start and that of theindividual, family and local community end? There are those who believethat the states reach and consequent responsibilities are and must remainlimited: that whereas governments can support and create appropriateconditions and extend some support, the final responsibility is of peoplethemselves to organize, with the assistance of their kinship and community

networks, their own food, shelter, social security, education and healthcare. This view obfuscates vast differences of power and resources, offreedoms and capabilities between people. People are not impoverished,hungry, homeless or destitute because of chance, and even less because oftheir own intrinsic failings. They often suffer profound, unjust, humiliatingand even life-threatening deprivations because of the way the politicaleconomy is structured.
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The people may not own any productive assets like land and capital, oreven 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 adisability. They may suffer because governments fail to redistribute land,protect them during conflict, secure spaces for them for housing, ordisplace 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 seekcare in a private clinic. They may be unable to afford a private school fortheir children, who may be forced to work by impoverished parents, orbecause they lack adult protection and are growing up on the streetswithout care. An old person may be unable to labour, but has no access tofood unless she works. It is only the state that has the resources andlegitimacy to guarantee each of these persons who live with want, stigmaand oppression a full human life of dignity, and the nutrition, shelter, healthcare, 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 andhow much they contribute to society, or in other words to what they canproduce. The state is seen to be primarily responsible to protect andfacilitate such productive individuals, and these duties are self-limitingbecause most such persons are capable of taking care of their essential life-enabling needs. On the other hand, the people who are not productive butdependent, deserve only such support as is possible for governments tomuster. The aid they get is welfare, not a right. This again limits stateresponsibility towards people who are paradoxically most in need ofsupport and protection for their survival.

The ethical flaw here is to value people on the basis of what they canproduce in terms of priced goods and services in the formal market. Thisdisregards many unpriced non-valorized contributions that such personsmay make to the world around them; that they are not responsible for theirbiological limitations such as of disability or age, or social limitations suchas of gender; and that many of their failures to produce are not intrinsicbut the result of barriers imposed by social norms. A hearing impairedperson 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 personwith a more agile mind finds boring, but a person with a slower mind findsengaging.

But most importantly, what needs to be challenged is the premise thathuman life should be valued for what it can produce rather than for itsinherent equal shared humanity. If this ethical principle is accepted, thenthe state is duty bound to provide for people in proportion to what theyneed rather than what they produce.


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Another argument against making failures by public officials to ensurerights, such as to food, punishable is that public officials can be punishedfor what they do, but not for what they fail to do. Thus it is correct thatofficials should have to account for the death by torture of a person inpolice custody because state officials have misused public office to commit

a crime. But the failures in the event of starvation deaths are at best ofnotacting,and hence cannot be treated as a crime.

However, it is increasingly acknowledged that public officials must bemade responsible, both for the consequences of their actions and theirfailures to act. If people die in a communal riot because state officials juststood by and let mobs maraud, loot and kill, this should be treated as acrime no different from one in which state officials actively planned andparticipated in the slaughter. Likewise for the consequences of failure bythe 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 socioeconomicrights like that to food, shelter and health care legally binding, because ofthe finite availability of fiscal resources. It is believed that decisionsregarding the amount of tax that should be imposed, on whom such burdensshould fall and how these resources are to be invested, are all legitimatelypolitical decisions of the executive, in which the law and courts should takecare not to tread. Therefore, even when social and economic rights areacknowledged by courts and constitutions, it is mostly with the caveat thatrights involving substantial state expenditure such as for food and housingshould be realized only to the extent that it is considered fiscally feasible bythe elected government of the day. However, while public resources arecertainly finite and limited, states need to be constrained to raise sufficientresources and prioritize its expenditures to ensure the survival of all of itspeople with dignity, and this can be ensured only with the intervention ofthe law and courts.

A most persuasive argument against making socio-economic rights legallybinding and enforceable through courts is that in any democracy the

executive is ultimately accountable to the people through the vote, throughuniversal adult franchise, and if the executive does not secure peoplessurvival with dignity through food, work, housing, health care, educationand social security, people would be free to vote out the government. Thisis the ultimate punishment for a culpable executive, and it is thereforeinappropriate to constrain the choices of a democratically electedgovernment, which is accountable even beyond and above courts directly tothe people who elect it.

This argument too ultimately fails because it neglects the enormous hiatus


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of power between people, and that universal adult franchise ensures only aformal equality between every citizen, while political decisions areultimately influenced by people and groups that wield economic, politicaland social power. The entitlements of the powerless, of women, children,the disabled and aged, the assetless and discriminated the wretched of theearth can be protected only by legal rights, codified and enforceable.Those whose rights are denied the woman, man or child whose survivalwith freedom is imperilled because public policy and the arrangements ofpolitical economy deny them what is essential to sustain life with dignity,should have the legal right to challenge and ultimately punish publicauthorities who fail them. Indeed, this has become even more imperative incontemporary times characterized by the hegemony of marketfundamentalism on public policy worldwide, and policies of structuraladjustment and globalization, which compel governments to reduce publicexpenditure and this most often tends to result in pulling back investmentsthat 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 bepermitted to slip. It establishes the scaffolding for humane governance,which sets limits to the enormous avoidable human suffering entailed bywant of food, a roof to protect one from the extremes of climate, and healthcare when one is afflicted. It demands state officials to be accountable, bothfor what they do and not do, for the most vulnerable and defenceless insociety. It affirms that no human being is dispensable, regardless of age andwealth, gender and ability, and of what they are deemed to produce andcontribute to society.

The unique experience of India since 2001 demonstrates the practicalways in which a right as fundamental as the right to food can becomelegally enforceable, and have an extraordinary impact on the massiveredeployment of state expenditure in favour of the dispossessed, and thecoverage with state supported food supply to millions of children andwomen and men who are routinely deprived of adequate and assurednutrition. The recent Indian experience of seeking to legislate the right tofood is an extremely important illustration of how a combination of civicand 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 tofood is also useful to illuminate the vexed and as yet unresolved debateabout the justiciability of socioeconomic human rights like the right tofood, or in simple terms whether a person who is denied this right can go tocourt, both to get the right enforced and to ensure punishment to those inauthority who denied her this right.


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of this right.

In the year 2001, a group of activists under the banner of the PeoplesUnion for Civil Liberties (PUCL), Rajasthan, filed a case in the SupremeCourt demanding that the right to food be recognized as a legal right ofevery citizen in the country. The petitioners in this case claimed that thepeople of India are confronted with an unconscionable situation of rampanthunger and recurring droughts on the one hand, and governments that failto prevent hunger despite having the means to do so, including overflowingwarehouses full of rotting foodgrains, on the other.

None of us who were associated with filing the petition had anticipated thecolossal scale and impact the case would have on the lives of millions ofindigent 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 timehad come. The Supreme Court accepted the petition with the observations(made on 23 July 2001) that: In our opinion, what is of utmost importanceis to see that food is provided to the aged, infirm, disabled, destitutewomen, destitute men, who are in danger of starvation, pregnant andlactating women and destitute children, especially in cases where they ormembers of their family do not have sufficient funds to provide food forthem. In case of famine, there may be shortage of food, but here thesituation is that amongst plenty there is scarcity. Plenty of food is available,

but distribution of the same amongst the very poor and the destitute isscarce and non-existent leading to malnourishment, starvation and otherrelated problems.

The governments of India and various states responded to the SupremeCourt claiming that they were already implementing a range of schemesthat adequately secured the right to food of all people. These includedfeeding programmes for infants, school going children, expectant andnursing mothers and adolescent girls; subsidized cereals retailed through acountrywide network of ration shops; pensions for the aged and wageemployment to the able bodied.

In reply, the petitioner (Kavita Srivastava of the PUCL, Rajasthan) and thecounsel (Colin Gonsalves of the Human Rights Law Network)requisitioned information from a still incipient civil society network whichcalled itself the Right to Food Campaign to establish the grave flaws andgaps in the coverage and implementation of these programmes. The casecaught 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 thebundles of files to the courtroom!


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The learned judges of the Supreme Court were convinced by theburgeoning evidence placed before them, which enabled them to takeseveral highly significant steps. The first of these was to direct allgovernments that they could not withdraw or abridge any of the benefitsprovided by the food, livelihood and social security schemes vital for allpeople to secure their right to food. In other words, what the court did wasto 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 ofthese schemes as they had now become legal rights. It obliged the state toat least retain, or preferably enhance, these entitlements and raise thenecessary fiscal resources to provide for them. This order thus paved theway for an enforceable right to food for the first time. It effectivelyprevents governments from removing or diluting these schemes underpressure to reduce the fiscal burden.

The Supreme Court thereafter appointed independent commissioners toensure compliance with their orders and to track both hunger and theperformance of food, livelihood and social security programmes of allgovernments across the country. (Initially, the court appointed S.R.Sankaran and N.C. Saxena as commissioners. Sankaran subsequentlyresigned, and since then I have been working with N.C. Saxena for thecourt). Apart from the pleadings of the petitioner and replies and reports ofthe Union of India and several state governments, the justices of theSupreme Court have relied significantly on a series of reports submitted bythe 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 inthe course of hearings in the case. They have further reviewed and analyzedthe performance of the central and state governments in implementingvarious schemes and programmes related to the food security of the peopleof India. They have investigated and reported on complaints and reports oflocal failures in food programmes, including starvation deaths. And finally,they have, from time to time, made recommendations to both governmentsand the Supreme Court of India for possible steps that they may consider todefend and promote food security, particularly for vulnerable people.

The third category of orders passed by the court has been to expand thecontent and modes of implementation of the various schemes which it hadconverted into entitlements. For instance, on the advice of itscommissioners, it ruled that school meals should be locally produced, hotand cooked (and not dry snacks or grain which many governmentsdistributed until then), hygienic, nutritious (of a prescribed minimumcaloric level) and with varied menus for every day of the week. It alsorecognized that school meals are an instrument to teach children socialequality; therefore, it ruled that preference be given to Dalit cooks. In the


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ICDS (Integrated Child Development Scheme), it banned contractors fromsupplying ready to eat food to preschool children, and again required hotcooked meals, at least for those above the age of three years. This was ablow to centralized procurement and hence, against large-scale centralizedcorruption.

The powerful biscuit manufacturers lobby saw an opportunity for profit in

the court-expanded programme and recruited Members of Parliamentacross party lines and an influential cabinet minister to demand that locallyproduced and monitored hot meals be replaced by the empty calories ofbiscuits. This proposal was fought by an informal alliance of conscientiouspublic servants, the national media, concerned professionals and the courtcommissioners. The court has ordered for decentralized hot cooked mealsin the best interest of millions of our young malnourished children.Likewise, the court and commissioners recommended higher pensions forthe aged, distributed on time every month at the doorsteps of theimpoverished elderly.

And finally the court ordered the universalizing of many of these schemes.Until now governments covered only a fraction of the potential recipientsof food, wage or social security benefits provided by these programmes.The Supreme Court not only converted the schemes into enforceableentitlements, it also ordered that every potential beneficiary in the countrybe covered by the programme within a defined time frame. This meant inevery instance an expansion of the programme several times beyond what itwas before the intervention of the court.

It is significant that the Supreme Court refused to concern itself with thefiscal feasibility of its orders to universalize various entitlements. Itentertained no caveats that its orders depended on the ability of thegovernments to raise sufficient resources, or left any escape door open forgovernments to default in complying with its directions on the plea that itfailed 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 thisbenefits one hundred and forty million school children daily, making it thelargest school feeding programme in the world. When the executive had tofind ways to raise revenues to operationalize universalized entitlements,and to finance mid-day meals, it initially imposed a special education cessof two per cent on all federal taxes for education, including school meals.

A second order was that every habitation of every village and slum musthave a feeding centre to serve every child below six years, and all pregnantand lactating mothers and adolescent girls. The legislature further passed a


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all rural families seeking work, 100 days of wage employment a year atstatutory minimum wages. And the executive eventually relented inexpanding the coverage of old age pensions from half to every aged personidentified as subsisting below the poverty line.

The court orders to universalize programmes for feeding children haveexpanded budgetary allocations exponentially. The court ordered a phased

expansion of the ICDS (preschool nutrition) programme from 0.6 at thetime of its order to 1.4 million habitations, and the coverage of everyeligible child below six years, who potentially constitute 17 per cent of thetotal population of more than a billion people. As a result, between the 10thand 11th plans, the allocations for the ICDS increased by 372 per cent.

The expansion in budgetary allocations for school meals rose even moredramatically between the plans by 713 per cent. In 2002-03, allocation formid-day meals was a little more than 10,000 million rupees; this rosealmost eight-fold to 80,000 million by 2008-09, entirely an outcome of thecourt 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 formid-day meals, brought more direct additional benefits to malnourishedand impoverished children than the cumulative contribution of all thedevelopment aid of all bilateral, multilateral and non-government agenciestaken together. The number of old age pensioners has also risen from overfive million in 2000-01 to 13 million in 2007-08, and allocations under thenational social assistance programmes have grown by 464 per cent.

In more than ten years of hearings, the Supreme Court has passed anumber of significant orders to advance the right to food of specific food-deprived populations. The effectiveness of civil and judicial intervention insecuring the peoples right to food can be assessed from the range ofinterim orders of the court so far.1 (At the time of writing, 58 interim ordershave been passed and hearings of the court in this case continue.) Theseorders have significantly improved the food security of literally millions ofpeople 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 of2009 in Delhi, for instance, a number of homeless people died. Thecommissioners wrote to the Supreme Court that people die of the cold notbecause of low temperatures, but because they are homeless and severelymalnourished. People exposed to severe cold require many more caloriessimply to maintain body temperature. As a result the court ordered theDelhi government to immediately enhance the number of night shelters.Consequently, the Delhi government more than doubled the numbers ofshelters; it opened more homeless shelters in two nights than it had in 60years since Independence.


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The experience of this case illustrates that although the right to foodalready existed as a fundamental right implicit in the right to life (as doother rights such as to shelter, health care and social security), for theserights to be actually operationalized, courts in response to civic action hadto elaborate the right in terms of a series of specific and explicit

entitlements. It was not enough to declare that every citizen enjoys thefundamental right to food. Each category of people has varying food needs,based on experience of denials and vulnerabilities, and the court has ineffect explicated or unpacked the right in relation to each segment ofpeople.

For an infant, the right to food translates into an entitlement ofsupplementary nutrition of defined specifications in feeding centres. For aschool going child, the right implies hot cooked school meals at stateexpense. For pregnant women, it means supplementary nutrition andmaternity benefits. For designated poor families, it means 35 kilograms ofstate subsidized rice or wheat every month. For the able bodied, it meansguarantee of food through wage work. For the aged, it means pensions. Theunfinished agenda of the court, I believe, is to secure the rights ofindividuals who are excludedfrom all these schemes as they are currentlydesigned, such as a child who cannot go to school, or of malnourishedwomen 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 fromprogrammes that can be withdrawn or reduced at will by the executive, intonon-negotiable entitlements which can only be expanded, not reduced.Second, the content of some of these rights need to be enhanced, such asthe quantum of pensions, or the features of the hot cooked mid- day meals.Third, the entitlements need to be universalized, such as through the rulingthat every child in state or state-aided schools across the country must gethot cooked noon meals. And an independent mechanism needs to becreated to monitor the actual realization of these rights. The lessons fromthis 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 Congressincluded in its manifesto a promise to legislate the right to food if it cameto power in the general elections of 2009. As it turned out, the Congresswas indeed returned to power, and led a coalition called the UnitedProgressive Alliance; in the first address of the President to Parliamentoutlining the newly elected governments priorities, a National FoodSecurity Law was reiterated as a high priority of the new government. It ispossible to speculate that at least one reason why the executive decided topropose such a law was that it was in any case being legally compelled to


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recognize such a right.

It is beyond the scope of this article to describe the highly contestedjourney that the drafting of this bill underwent. At the time of writing, thefinal shape of the bill is still under consideration of Parliament. But therecan be little doubt that it was the courts which showed the way to a lawwhich makes governments legally responsible to end hunger.

The experience of this litigation in the Supreme Court of India hasdemonstrated that civic and judicial action can combine to ensure that aright such as to food which is vital for human survival, can be guaranteedby the state in ways that are sensitive and responsive to the specific needsand denials of various categories of food insecure women and men, boysand girls. It is not just the courts and citizen groups, but also lawmakersand policy formulators who can draw lessons from this about how the lawand 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 thefirst time in recorded human history, the enormous suffering and indignityof 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.

Footnote:

1. For a summary of the orders passed by the Supreme Court so far, visit www.

supremecourtcommissioners.org/orders
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634 harsh mander, food from the courts

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