Right to food

Right to food

July 7, 2022

4585

This article is written by Ms Sushree Surekha Choudhury from KIIT School of Law. The article talks about the right to food which is recognised by the United Nations as a human right. It also gives an overview of India’s efforts in guaranteeing the right to food to its citizens.

It has been published by Rachit Garg.

Table of Contents

Introduction

Former Director-General of the Food and Agriculture Organisation (FAO) of the United Nations, Sir Jacques Diouf while speaking about the right to adequate food said it is not only a moral imperative and an investment that shall render economic returns, but also signifies a basic human right and this speaks volumes. Time and again, the right to food has been recognised as a basic human right, similar to those as a right to life, right to health, etc. FAO reports state that, all over the world, men, women and children suffer from undernourishment and a situation termed ‘extreme hunger’. Extreme hunger is a situation when the calorie intake of a person is way below than what is necessary for his survival. The United Nations have made several attempts in the form of treaties, conventions, organisations and recommendations in order to achieve the right to food and free people from hunger worldwide. In India, the Indian Constitution has recognised the right to food as a part of the right to life under Article 21 of the Constitution. India has made efforts to incorporate the principles of the right to food into its Constitution and other legislation, we will learn about them in this article.

Right to adequate food

The right to adequate food has been defined by the Committee of Economic, Social and Cultural Rights (ESCR) in its General Comment 12 of 1999 as a condition when every individual of a community has physical and economic access to food and its means of procurement. Right to food or right to adequate food is a basic human right and several other rights like the right to life, right to health, and right to basic standards of living are all dependent on the right to food. Conversely, to enjoy the right to food to its fullest, people need access to proper healthcare facilities, education, economic stability and political fulfilments. So the right to food and the right to life are interdependent. The Universal Declaration of Human Rights (UDHR), 1948 have recognised the right to food to be a part of the right to adequate standards of living. Article 25 states that a right to adequate standards of living includes the health and well being of a person and his family, and the right to food. Article 11(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR), a part of the International Bill on Human Rights recognises and defines the right to adequate food. It has also stated under Article 11(2) that it is the fundamental right of every person to be free from hunger. Right to food, thus, derives its origin from Article 11 of ICESCR. It divides the right to food into two categories:

Right to adequate food,
Fundamental right to be free from hunger.

The United Nations Office of High Commissioner for Human Rights (OHCHR), 1993 also speaks about the right to food. It talks about four essential elements of the right to food:

Availability

It states that food should be readily available to people across the world and those foods must be cultivated or grown in a natural environment, through farming, cultivation, fisheries, gathering, etc.

Accessibility

It states that food must be affordable to every individual. People should be able to get access to adequate food and a balanced diet without having to compromise with other basic necessities such as house rent, education, healthcare, etc. to avail of food. Food should be available to every person – citizens, prisoners, children, sick, and elderly, equally. Food should be available in all places – cities, towns, villages, remote areas, areas hit by natural calamities, etc.

Adequacy

Safe and good quality food should be available to each individual as per their dietary needs which differ from person to person. It should have a minimum standard of nutrition and be free from harmful substances.

Sustainability

Sustainability or sustainable development speaks about taking care of the needs of the present generation without compromising the ability of future generations to meet their needs. Food should thus be sustainable. It should be available to today’s generation as well as the future generation.

As per the OHCHR, the following rights are attributed to the right to food and these rights are believed to be codependent, they are:

Right to health

For an individual to maintain standard health which is a fundamental human right, proper nutrition, a balanced diet and adequate food are necessary. For instance, giving medical care and attention to a sick person or an elderly is not sufficient if it is not attributed to adequate food.

Right to life

Lack of an adequate and balanced diet leads to illness, malnutrition, and children born with infirmity and other diseases which is a hindrance to the right to have a decent life.

Right to water

Clean drinking water is an essential element of the right to life and the right to food. For the preparation of food free from contamination and other harmful substances, the right to water has to be attained.

Right to adequate housing

People who face difficulties in having a basic standard of housing, further struggle in preparing, storing and accessing food of good quality. These individuals constantly struggle between accessing adequate food and to have a shelter to live. This juggle ends up compromising in either of the two.

Right to education

Hunger, lack of nutrition and a basic diet among children hamper their ability to perform well in school, memory and understanding capabilities and many times they end up being unable to complete schooling.

Fundamental right to be free from hunger

Article 11(2) of the International Covenant on Economic, Social and Cultural Rights is the origin where the right to be free from hunger was recognised as a fundamental right under international law. It stated that the states under this covenant must take all steps necessary to meet this fundamental obligation. This has to be done by mutual cooperation among states. The states shall take all the measures necessary to look into the production of food, conservation of food and distribution of such produced food, all of which must be facilitated by sound scientific and technological assistance. Science and technology should be used to make the food nutritious and reach a standard of consumption by making all the necessary additions to the naturally procured food. There has to be a balanced supply of food in all parts of the world.

The general comment 12 of the 1999 Committee on Economic, Social and Cultural Rights stated that it is the responsibility of the state to ensure that every man, woman, children, sick, and elderly, get access to minimum essential food which shall provide them adequate nutrition, a balanced diet, healthy growth and make them free from hunger.

It is recognised as a legal right under international human rights and humanitarian laws. It is given legal recognition under Article 25 of the Universal Declaration on Human Rights and Article 11 of the International Covenant on Economic, Social and Cultural Rights.

Legal obligations of states towards the right to food

The internationally recognised right to food gives rise to the legal obligations of states to uphold this right and fulfil its essentials. For doing so, the states are vested with 3 different types of legal obligations. These obligations were defined for the first time under general comment 12 of the 1999 Committee on Economic, Social and Cultural Rights. It further created legal obligations on states when FAO adopted the Right to Food Guidelines (2004) in November 2004. Thus, the 3 types of legal obligations of states were categorised as:

Obligation to respect

This puts an obligation on the states to respect international laws and guidelines and also their domestic laws. This is done by the states by providing a stable regime and by not changing the laws arbitrarily or in a manner that will deprive people of their right to food.

Obligation to protect

This puts an obligation on the states to protect their citizens’ right to food. They shall do so by preventing any individual, corporation or any third party from violating the rights of other individuals or depriving them of their rights. States shall take appropriate measures to ensure every individual of their state is guaranteed the right to food.

Obligation to fulfil

This is an essential obligation which says that states shall make every effort to make food accessible to their citizens. They shall look into the production, conservation and distribution of food equally among all the citizens of the country, belonging to different classes, religious groups, rural and urban populations, and people of all age groups. They shall take the help of scientific measures and technological assistance in order to ensure adequate nutrition for their citizens. It is the duty of the government to facilitate and provide food to every individual of the state. The states must strengthen individuals’ capacity to procure and access food for themselves and their families. When one section of the society is unable to do so, it is the responsibility of the state to facilitate and provide them with adequate food directly.

This has been furthered under Guideline 8.1 of the Right to Food Guidelines (2004). It says that states must make every endeavour to give access to food, livestock, fisheries and other natural resources. It must protect its citizens from hunger, malnutrition, and anything that comes in the way of their rights. Government must protect the right to food of people from getting violated by the powerful strata of the society. They must make every effort to increase productivity and eradicate hunger. Guideline 9 further gives food safety guidelines. It states that food should be easily available to all, in the local markets and it should maintain the national food safety standards. It puts the responsibility on states to ensure that the food being distributed is safe for human consumption and must reduce the risks of food-borne diseases. Guideline 10 gives guidelines for maintaining a safe and essential level of nutrition. The goal must be to ensure balanced diets, and prevent undernourishment, malnutrition and overconsumption. Guideline 13 states that nations must support vulnerable groups of their population. It must make provisions for their safety, food security and health. It is to be done in a manner that if a group of individuals are unable to get access to food, the government must make attempts to provide them adequate food through direct channels of public distribution. It underlies the principle of non-discrimination. These guidelines are further backed by Article 2(1) and Article 23 of ICESCR.

Right to food under Indian Law

India gives importance and respect to food since the age-old culture and traditions. Food has been considered a form of Goddess Parvati and an extract from Atharva Veda states that, ‘every individual has a right to equal access to food and water.’ India has been a diligent member of the UN and has also been a party to the International Covenant on Economic, Social and Cultural Rights (ICESCR). So, it is bound by all the laws and rules that have been made under these international agreements. Though India does not directly recognize the right to food to be a fundamental right but it has impliedly included the right and provisions to uphold the right in the Indian Constitution under the preamble, the fundamental rights and the directive principles of state policies. Apart from the Indian Constitution, the National Food Security Act (2003), otherwise known as the Right to Food Act was enacted by the Indian Parliament to provide food grains to two-thirds of the total population of India at a subsidized rate. This was a governmental intervention to facilitate food security in the country. This Act initiated several schemes in the country like the Mid-day Meal Scheme, Integrated Child Development Services Scheme and Public Distribution System. The latest 2021 data suggests that there are currently 75.75 crore beneficiaries under the National Food Security Scheme. The National Food Secuirty Act has been criticised at times in terms of storage facilities, quality of food distributed and lack of use of scientific methods. It is suggested that the the use of technology and incorporation of Information Technology into the domain of National Food Security Act is necessary and shall be helpful in the long run.

Right to food and the Indian Constitution

Although the Constitution of India does not recognise the right to food as a fundamental right, it gives recognition to the right under various articles and the preamble. It aims to ensure adequate food to all its citizens and to provide safe and nutritious food to all.

Right to food under the preamble of the Indian Constitution

Socialism is an essential element of the Indian constitution and its preamble. India being a socialist democratic country, aims to end poverty in the country. The values of socialism further the idea of the right to food. It aims to guarantee a decent standard of living for all, especially those below the poverty line. Socialism aims to eradicate the gap between the rich and the poor in the country. Poverty is a huge reason behind people being unable to meet basic food requirements. Thus, eradication of poverty is a prerequisite to enhance the availability and accessibility of food to all. Thus, this is a cycle of co-dependent events which is facilitated by government intervention and support. A balanced diet and adequate nutrition decreases hunger, undernourishment, malnutrition, sickness and other food-borne diseases and upholds the right to life which is a fundamental right under Article 21 of the constitution. Socialism advocates for equal accessibility of food among all social groups of the country, to all classes of the society.

‘Individual freedom’ include immunity from starvation, under the basic structure of the constitution. The basic structure refers to that part or those features of the constitution which can never be altered. Freedom from hunger has been recognized as a part of the right to life under Article 21 of the Constitution. The right to freedom, right to life and right to equality form an essential part of the basic structure, each of it upholds the right to adequate food and to be free from hunger as a basic human right. In Keshavananda Bharati v. State of Kerala (1973), the freedom from starvation was held to be equally important as the right to life.

Article 32 of the Indian Constitution grants a right to every citizen of India to move to the Supreme Court for any infringement of Part III of the Constitution or to enforce this Part as a legal right. Writ petitions are filed by people, social activists and NGOs to enforce Part III of the Constitution. Article 21 being a fundamental right under Part III can be enforced under this Article. Thus, the right to food can be legally enforced and violations can be challenged under Aricle 32.

Right to food and Directive Principles of State Policy

As the name suggests, directive principles of state policy are directive in nature. These are a set of duties that the government owes to its citizens and the citizens owe to their nation. These are not enforceable in a court of law but are rather regarded as fundamental principles that the states should adhere to while enacting laws. There are certain articles of this part of the constitution that encapsulates a right to food. These are:

Article 37 states that though directive principles are not enforceable by law, states shall make every endeavour to inculcate the values laid therein while making laws for public welfare.
Article 38(2) says that it is the duty of every state to make efforts to eliminate inequality in income, opportunities, the status of people and other discriminatory barriers.
Article 39 states that there shall be equality between men and women in access to adequate means of livelihood.
Article 39A which was added to the Indian Constitution with the 42nd Constitutional Amendment Act (1976), puts an obligation on the states to ensure justice, promote equality and equal opportunities for all, in the particular state. The states shall achieve this aim with the help of free legal aid and by legislation and schemes. Under this Article several schemes can be implemented in the states to ensure food security. The Mid-day Meal Scheme is one such initiative made by the State Governments to provide full meals to children in their schools. On the other hand, it also promotes the right to education.
Under Article 41, states are needed to take measures to ensure the right to work, right to education, employment, and public assistance for the necessities of elderly, infirms, sick or disabled people who need help.
Article 45 makes provisions for free and compulsory education for all till the age of 14 years.
Most importantly, Article 47 specifies that it is the responsibility of the states to increase the level of nutrition and standards of living of its citizens. It is their primary duty to ensure standard healthcare for all citizens. This duty includes reasonable restrictions on consumption of intoxicating drugs and alcohol by the citizens to preserve their health from deteriorating. The Article puts an obligation on the states to maintain a standard mortality rate in the particular state. To achieve this, states have made several endeavours like initiating new schemes like the Midday Meal Scheme, Targeted Public Distribution System, which was proposed under the National Food Security Act. It is the obligation of the states to maintain the standard of living of their citizens, this is achieved by the right to food which is recognised under Article 21 and facilitated under Article 47.

All these provisions together contribute toward the right to food under Part IV of the constitution.

Right to food vis-a-vis Article 21 of the Indian Constitution

Article 21 is considered as one of the most essential provisions of the constitution. It is a fundamental right that guarantees the right to life and personal liberty to all citizens equally. To ensure encapsulation of several sub-rights, the ambit of Article 21 has always been kept wide and inclusive. The right to life includes a right to live with dignity. The right to live with dignity recognises the right to food as an inseparable part of Article 21. The right to food has also been upheld by judicial pronouncements.

In the exhaustive landmark judgement of Keshavananda Bharati v. State of Kerala (1973), which discussed the basic structure of the Constitution, talked about the right to be free from starvation as an integral part of the right to life under part III of the constitution.

In another case of Dena Nath v. National Fertilisers Ltd. (1991), the court directed the establishment of food canteens in every worker’s quarters and to provide food in these canteens at a subsidised rate. This was to ensure the workers get access to adequate food and uphold their rights.

In yet another case of Shantistar Builders v. Narayan Khimalal Tomate (1990), the courts recognised the right to shelter as a basic human right and further stated that in India, 3 basic rights have been recognised – the right to shelter, right to food and right to clothing.

In a 2021 crisis, the COVID-19 pandemic had already caused loss of life, shelter, food and basic amenities to the migrants. Approximately 11 million migrants in India faced food crisis and food insecurity. A survey report by Stranded Workers Action Network (SWAN) suggested that 96% of migrant workers died due to starvation in 2021. As a result, the Supreme Court of India took suo moto cognizance of the issue in In Re: Problems and Miseries of Migrant Workers. The Court reiterated that the right to food is an inseparable part of the right to life under Article 21. The Supreme Court directed the state governments to initiate appropriate schemes immediately and stop the plight of migrants. The Court ordered state governments to distribute dry ration to the migrants, even the ones that did not posses a ration card. The Central Government implemented the One Nation One Ration Card (ONORC) Scheme and also set up a National Database of Unorganized Workers (NDUW) portal in 2021.

Kishen Pattnayak v. State of Orissa (1989)

In this case, the petitioner was a resident of a small village in the Kalahandi district of Odisha. He wrote a letter to the Supreme Court of India addressing the issue of extreme hunger and starvation in Kalahandi. People started selling their children in order to be able to buy food. This was the first case to be filed on the right against hunger and starvation. The letter requested the apex court to direct the state government to take immediate and adequate steps and measures to improve this extreme condition.

The Court directed the state government to take the following steps for uplifting the conditions of people in Kalahandi, such instructions included:

Introducing irrigation projects in the state to improve the quality of soil, to make it more fertile and to eradicate drought and other natural conditions that hamper growth of good food crops,
It also formed a Natural Calamities Committee to look over the issues of frequent natural calamities in the state and provide help in those situations,
It also directed the state government to cap the prices of certain food crops such as paddy, to make it more accessible and affordable to people.

People’s Union for Civil Liberties v. Union of India

In this case, The People’s Union for Civil Liberties (PUCL) had time and again filed several petitions in attempts to uphold the public interest. One such writ petition in the form of Public Interest Litigation (PIL) was filed by the organisation under Article 32 contending that not providing adequate laws to uphold the right to food and freedom from starvation is a violation of Article 21 and Article 47 of the Constitution.

This case gave an extensive judgement touching every aspect of the right to food and several guidelines were issued. Those are:

Several interim orders were first passed and authorities were directed to distribute and provide food to the destitute, the elderly, pregnant women, men, children and every individual facing extreme hunger and starvation. The authorities were asked to provide them with food stocks directly in case they were financially incapable of doing it on their own.
The court ordered to expand its Integrated Child Development Scheme (ICDS) which provided provisions for supplementary food to children of 0-6 years age group and to pregnant women. The court directed to expand this scheme in order to make food more accessible to those undernourished, suffering from acute malnutrition and other deficiencies.
The court directed the Anganwadi centres to provide food to children, adolescent girls, pregnant women and lactating women for 300 days a year in the form of supplementary food.
An obligation was put on the government of every state and every union territory to ensure that nobody dies out of hunger, starvation or malnutrition. Thus, the government must either provide food directly to those who are unable to get it for themselves, provide aid to them for doing the same, or provide them employment in order to make them capable enough to access basic necessities.
The Court directed the state governments to initiate food-for-work programmes and encourage people to participate.
The Court further initiated the mid-day meals scheme and instructed the governments in implementing the same.
The Court stated that any death caused due to malnutrition or starvation shall be treated as a violation of Article 21 by the respective state government and they shall be liable for the same.

Kapila Hingorani v. State of Bihar (2003)

Case: In this saddening incident that took place in Bihar, hundreds of government employees died due to starvation or committed suicide due to non-payment of salaries for a long period of time. The matter went to the Supreme Court of India.

Court took the issue seriously and said that the state cannot escape liability in this incident of high magnitude which occurred due to the state’s negligence and failure in providing basic rights to its working-class citizens. Court took reference from Article 11 of the International Covenant on Economic, Social and Cultural Rights and held that every human being has the right to food and hunger is a violation of such right. The court pronounced several directives to the state governments and strictly asked them to make provisions to ensure that nobody dies of hunger or starvation. If that happens, the states could be held liable for violating Article 21 of the constitution. The Court held that these government departments to whom the workers belonged, had an obligation towards them just as the state government does towards its citizens and for these deaths, they could be held liable for violating the Constitution. It is the duty of the state and state-owned organisations to uphold the values enumerated in Article 14, Article 19, Article 21 and Article 300A of the constitution. Court also focused on Part IV and Part IVA of the constitution and stated that India being a state that follows welfarism, it is the fundamental duty and a part of directive principles of state policy to uphold citizens’ rights.

Conclusion

Right to food is a right recognised by international law, treaties, conventions and organisations for the same and the member countries are mandated to make their domestic laws at par with these international standards. From the overall understanding, the root cause behind what is termed ‘extreme hunger’ is poverty, among other reasons. Thus, to obtain the right to food in its absolute sense, it is extremely important to eradicate poverty. This will be achieved through increased levels of education and employment. While the states can make endeavours and help the marginalised sections of the society by availing them of food and other resources directly, it will not eliminate the problem from the roots and will exert a burden on the budget and economy in the long haul. Only time will tell how we achieve the food security goals as a nation.

Frequently Asked Questions (FAQs)

Is the right to food a fundamental right?

The right to food is recognised as a basic human right, a legal right and a fundamental right of every human being under international law. However, domestic laws, for instance, Indian laws, recognise it as a legal right but not as a fundamental right.

Where in the Indian constitution is the right to food recognised?

The right to food is recognised primarily under article 21 of the Indian constitution. It also forms a part of the directive principles of state policy under article 47 of the constitution.

Which organisation is primarily responsible for giving directives, and guidelines and laying an international standard of safe food?

The Food and Agriculture Organisation (FAO) which is a part of the United Nations, is the primary organisation for laying food safety standards and guidelines.

What are the two divisions of the right to food under international law?

The right to food under international law is divided into two heads- the right to adequate food and the fundamental right to be free from hunger.

References

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