12 Right to Food in Indian Constitution and Case Law

Dr. Y S R Murthy

Introduction

The right to food is a constitutionally protected right in India. In PUCL v. Union of India (2001), the Indian Supreme Court declared that the right to food comprises part of the fundamental right to life under Article 21 of the Indian Constitution. This decision built on a series of cases in the 1980s and 1990s in which the Supreme Court interpreted Article 21 not only to protect against the arbitrary taking of life, but also to provide a broader right to “live with dignity.” This brought various Directive Principles of State Policy within the ambit of Article 21 and made them justifiable, even though Article 37 of the Constitution of India states that they “shall not be enforceable by any court.”

This chapter will introduce students to the Constituent Assembly debates and Constitutional provisions that address the right to food. It will also survey Indian Supreme Court case law on the right to live with dignity under Article 21. It concludes by discussing the Supreme Court’s decision in PUCL v. Union of India (2001)and the significant interim orders that the Supreme Court has since issued on the right to food.

Learning Outcomes:

After completing this module, students should know and understand:

• The Constituent Assembly debates and constitutional provisions on the right to food.
• Jurisprudential developments towards the right to life with human dignity, including a constitutional right to food.
• The PUCL v. Union of India case and the Supreme Court’s major interim orders on the right to food.

I. Right to Food in the Constituent Assembly Debates and the Indian Constitution

While India gained independence from the British in 1947, it only adopted its republican Constitution in 1950 after more than two years of debate within its Constituent Assembly. Given the poverty and high degree of inequality in India, there was no doubt that social and economic (or socioeconomic) justice had to be addressed in the Constitution. Jawaharlal Nehru, who would later become India’s first Prime Minister, stated that the Assembly’s first task was “to free India through a new constitution, to feed the starving people, and to clothe the naked masses, and to give every Indian the fullest opportunity to develop himself.”  Yet, the question of whether to include socioeconomic rights, such as the right to food, in the Constitution was a subject of debate among the members of the Constituent Assembly. Some members favored including socioeconomic provisions as justiciable rights – that is, rights that can be enforced in court. K.M. Munshi drafted the “Rights of Workers” and “Social Rights,” which included the right to a living wage and protections for women and children. Dr. B.R. Ambedkar, the Chairman of the Drafting Committee, favored a social scheme to nationalize all major industries that would take effect ten years after the Constitution was adopted.

In the end, however, these views did not prevail. The Indian Constitution includes provisions on socioeconomic justice, but they are framed as Directive Principles of State Policy (DPSPs) and not as justifiable rights. This was proposed by BN Rau, an eminent jurist and scholar, who served as constitutional advisor to the Constituent Assembly’s Drafting Committee. Rau was tasked with studying the constitutions of other countries and sharing his findings with the Committee’s members. Drawing from the Irish model, Rau suggested that the Indian Constitution avoid justiciable socioeconomic rights and instead include a list of directive principles: non-binding guidelines intended to guide the government towards improving socioeconomic conditions.

The final version of the Constitution, adopted by the Constituent Assembly, divided “fundamental rights” (mostly civil and political rights) and the DPSPs. Fundamental rights were placed in Part III, while DPSPs were placed in Part IV. While Articles 32 and 226 of the Constitution allow the Supreme Court and High Courts, respectively, to redress violations of fundamental rights, Article 37 makes clear that the DPSPs “shall not be enforceable by any court.” DPSPs are non-justifiable because they represent aspirational long-term goals of the state that will be progressively realized. The Constitution sought to give elected representatives the flexibility to pursue these goals gradually and in light of resource constraints, without having the courts interfering in their enforcement.

A few of the DPSPs directly relate to the right to food. Article 39(a) provides, “The State shall… direct its policy towards securing that the citizen, men and women equally, have the right to an adequate means of livelihood.” Further, Article 47 declares, “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.”

II. The Right to Live with Dignity under Article 21

In the early years of the Indian republic, the judiciary upheld the dichotomy between fundamental rights and directive principles. However, following the Emergency (1975-77) when fundamental rights were severely curtailed and the judiciary provided little protection against state excesses, a few Supreme Court judges took a new approach to fundamental rights in the 1980s. As Craig and Deshpande put it, in this period, “the very purpose of the law itself was undergoing a transformation. It was being used to foster social justice by creating new categories of rights.” These justices revolutionized the Supreme Court’s approach to fundamental rights through both procedural and substantive innovations in the law.

Procedurally, the Supreme Court adopted a series of innovations to ensure public access to the courts and greater judicial oversight over policy matters. These innovations would come to be known as “public interest litigation” (PIL). Bandhua Mukti Morcha v. Union of India (1984) illustrates some of these innovations.  In this case, a three-judge Supreme Court bench, led by Justice PN Bhagwati, initiated a PIL in response to a letter they received from an NGO urging the Court to end the practice of bonded labor. Instead of issuing a single, final judgment declaring bonded labor unconstitutional, the Court adopted a doctrine known as “continuing mandamus.” This allowed the Court to postpone a final judgment and periodically issue guidelines and interim orders to ensure government compliance with the relevant constitutional provisions. Thus, the Court not only relaxed its locus standi requirements to allow an NGO to file a writ petition on behalf of bonded laborers, but also expanded the scope of its authority to keep the litigation open and monitor compliance with its orders.

Substantively, the Supreme Court began to enforce the Directive Principles of State Policy in the early 1980s. It did this by reading DPSPs into the fundamental right to life enshrined in Article 21 of the Indian Constitution. As discussed earlier, Article 37 makes clear that directive principles “shall not be enforceable by any court.” However, since Justice Bhagwati and a few other justices on the Supreme Court were keen to devise new and creative remedies, Article 37 was sidestepped in the larger cause of promoting greater human dignity and socioeconomic justice. In Francis Coralie Mullin v. Union Territory of Delhi (1981), the Supreme Court per Justice Bhagwati declared that the right to life under Article 21 protects a broader right to “live with human dignity.” The Court also stated, “Article 21 cannot be restricted to mere animal existence.” Rather, “it must…include the right to the basic necessities of life and also the right to carry on such functions and activities as constitute the bare minimum expression of the human self.” The Court has built upon this judgment to enforce a number of new socioeconomic rights within the “right to live with human dignity.” These include the  rights to food, education, healthcare, and shelter.

PUCL v. Union of India

In PUCL v. Union of India (2001), the right to food was explicitly recognized for the first time as a constitutionally protected fundamental right. This case began as a writ petition filed by an NGO on behalf of millions of Indian citizens who were without adequate food following a famine. Relying on the Francis Coralie case, the petition alleged that the Government of India, the Food Corporation of India (FCI) and six state governments had violated the right to “live with dignity” under Article 21 with respect to these famine victims.15 Since food is a necessary to sustain a dignified life, the petitioners contended that the state had an affirmative duty to provide and distribute food to citizens affected by the famine.

On 28 November 2001, the Supreme Court issued an interim order that expanded the scope of the right to life and recognized certain food schemes as legal entitlements under Article 21.16 However, the Court did not end its inquiry there. As in Bandhua Mukti Morcha, it exercised “continuing mandamus” and kept the litigation open to retain some oversight on government food policy. In some instances, the Court does not simply judge the validity of government schemes, but issues directives to the central and state governments on how schemes should be operated. For example, with respect to how food licenses to the poor should be regulated, the Court instructed government authorities as follows:

(1) Licensees, who (a) do not keep their shops open throughout the month during the stipulated period, (b) fail to provide grain to BPL [below poverty line] families strictly at BPL rates and no higher, (c) keep the cards of BPL households with them, (d) make false entries in the BPL cards, (e) engage in black-marketing or siphoning away of grains to the open market and hand over such ration shops to such other person/organizations, shall make themselves liable for cancellation of their licenses. The concerned authorities/functionaries would not show any laxity on the subject.

A few other schemes instituted by the Supreme Court are worth noting. In its 28 November 2001 Order, states and union territories were directed to implement the Mid-Day Meals Scheme. This would provide every child in government and government assisted schools with prepared meals that contain a minimum of 300 calories and 8-12 grams of protein each day of school for a minimum of 200 days.

In the same interim order, the Court directed the state and union territories to implement the Integrated Child Development Scheme (ICDS). This scheme would ensure that every ICDS disbursing center in the country provides 300 calories and 8-10 grams of protein for each child up to 6 years of age and 500 calories and 20-25 gram of protein for all adolescents. Every pregnant woman and nursing mother was to be given 500 calories and 20-25gms of protein and every malnourished child would get 600 calories and 16-20gms of protein. The states and the union territories were also ordered to implement the National Maternity Benefit Scheme by paying all pregnant women who were below the poverty line, Rs.500 through the village sarpanch (leader) 8-12 weeks prior to delivery for each of the first two births. Further, these governments were directed to implement the National Fertility Benefit Scheme in which a BPL family would receive Rs. 10,000 within 4 weeks if the family’s primary breadwinner dies.

On 2 May 2003, in a separate order, the Court asked the Government of India to evolve a system to ensure that all poor families that are eligible are correctly identified as below the poverty line (BPL). It also ordered the cancellation of licenses to ration shop dealers if they did not open on time, overcharged in their pricing, retained ration cards, made false entries in BPL cards, or engaged in black market activity. States who had not implemented the Mid-day Meals Scheme were ordered to provide mid-day meals scheme in at least 25% of the districts, with maximum priority given to the poorest districts.

Today, more than thirteen years after it began, the PUCL v. Union of India case remains open and has expanded greatly. The litigation now includes all twenty-eight Indian states as respondents and the Court has issued more than fifty interim orders requiring state governments to implement policies on a range of matters, not all of which relate directly to food production or distribution. Interim orders have dealt with issues such as urban poverty, the right to employment, and general issues of government accountability and transparency.

Summary

Today, the right to food is a fundamental right in India that is enforced by the Supreme Court. This was not the case prior to PUCL v. Union of India (2001). The Drafting Committee of the Constituent Assembly, on the advice of BN Rau, separated provisions on socioeconomic justice from those on fundamental rights. Fundamental rights were placed in Part III of the Constitution and could be enforced in court; Directive Principles of State Policy (DPSPs) were included in Part IV and were explicitly non-justiciable. The DPSPs were drafted as aspirational policy goals to be progressively realized by elected representatives without any judicial interference.

However, the division between Parts III and IV of the Constitution has gradually eroded. Beginning in the early 1980s, the Supreme Court reconceived its role in India’s democracy through a series of procedural and substantive innovations. It is now able to hear a wider range of cases, including those on socioeconomic rights, and monitor government compliance over time. Francis Coralie Mullin v. Union Territory of Delhi (1981) established that Article 21 of the Constitution protects not only the right to life, but also a more expansive “right to live with dignity”. This has been interpreted in subsequent cases to include a number of socioeconomic rights including the right to education, housing, and healthcare.

The right to food was recognized as part of the “right to live with dignity” in PUCL v. Union of India (2001). This case originated as a PIL filed in response to a famine that affected millions of Indian citizens across six states. Exercising its power of continuing mandamus, the Supreme Court has issued a wide range of interim orders in this case, which deal with several food-related and other socioeconomic issues. The most significant order was issued on 28 November 2001. This order declared a fundamental right to food under Article 21 and directed the government to implement a number of schemes, including the Mid-day Meal Scheme. The PUCL case remains open today, more than thirteen years after the initial PIL was filed, and more than 50 interim orders have been issued.

Reference

• Granville Austin, The Indian Constitution: Cornerstone of a Nation (New Delhi, Oxford University Press, 1996).
• Jawaharlal Nehru, The Unity of India: Collected Writings 1937-40 (New Delhi: Nabu Press, 1948), p. 11.
• PP Craig & SL Deshpande, “Rights, Autonomy and Process: Public Interest Litigation in India”, 9 OXFORD JOURNAL OF LEGAL STUDIES 356, 361 (1989).
• Rehan Abeyratne, “Socioeconomic Rights in the Indian Constitution: Towards a Broader Conception of Legitimacy”, 39 Brooklyn Journal of International Law 1 (2014).
• Upendra Baxi, “Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India”,4 THIRD WORLD LEGAL STUDIES 107, 113-116 (1985).
• Rajeev Dhavan, “Law as Struggle: Public Interest Law in India”36 JOURNAL OF THE INDIAN LAW INSTITUTE 302, 306 (1994).