By Anushka Sachdev, National Law University, Delhi
“Editor’s Note:In the wake of an overhaul of the Indian Political Scenario, a headlong passing of the Food Security Act, 2013 by the UPA government fell in much controversy. The Act was criticized for not fixing parameters to decide the beneficiaries and the method of availing the benefit. With 56.2% women and 24.3% men being anaemic, it is difficult to decide how far this act will take the health considerations of Indian population. This paper delves deeper into the shortcomings of the Act and emphasizes the need for proper legislation on the subject.“
The national food security bill was enacted on September 12, 2013. It is[i] “an Act to provide for food and nutritional security in human life cycle approach, by ensuring access to adequate quantity of quality food at affordable prices to people to live a life with dignity and for matters connected therewith or incidental thereto.”
It aims at protecting all children, women and men in India from hunger and food deprivation. Many social, economic and political reasons have instigated its enactment. The objectives of this Act also include setting new standards of delivery, transparency and accountability for social programs. It also aims to provide a guarantee of adequate nutrition which is derived from the right to food as a part of the right to life under Article 21 (interpreted by the Supreme Court as a right to life with dignity)[ii], which is a fundamental right of all citizens.
Recently in Ami Prabal vs. Union of India and Others[iii] the Madhya Pradesh High Court held that if there is an obligation upon State for allotment of food grains, state should follow that order to secure food to citizens. As per the order of Supreme Court, families holding BPL & APL cards were entitled to receive food grains of 35 kg per month. However, BPL & APL card holders of state were getting only 20 kg per month as the number of card holders under Union of India was different from that of state of Madhya Pradesh which implied that real BPL families were not getting benefit as ordered by Supreme Court. Therefore, shortage of food was not to be blamed for the hunger-stricken strata but the lax attitude of the administration adopted for the identification of BPL & APL families. Moreover, food grains could also be saved from wastage due to inadequate storage capacity. Given that right to food is a basic human right and is also a sub set of right to life, the Court issued direction to the respondents for removal of anomaly of number of BPL & APL card holders in State while disposing the petition. This case forms one of the major instances which led the government to enact a legislation to cater to the right to food.
The act focuses on legal food entitlements i.e. the duty of central, state and local governments to provide food to the people, through subsidized grain, direct feeding programs and related interventions. According to the act –“Every person belonging to priority households shall be entitled to receive five kilograms of food grains per person per month at subsidized prices specified in Schedule I from the State Government under the Targeted Public Distribution System.” [iv]The entitlements of the persons belonging to the eligible households at subsidized prices shall extend up to seventy-five per cent of the rural population and up to fifty per cent of the urban population.[v] The act also entails special provisions for every pregnant woman and children upto the age of 14 years.[vi]
This project determines the viability of the different provisions of National Food Security Act, 2013 by comparison and analysis of various sections.
There have been many attempts to enact a legislation to protect the Indian population from malnourishment. A PIL in 2001 exposed the excessive amounts of food grains rotting in government granaries which could have been better used to feed the starving population. Representing the People’s Union for Civil Liberties (Rajasthan), HRLN filed Public Interest Litigation in the Supreme Court in April 2001 – seeking legal enforcement of ‘Right to Food.’ [vii]According to figures of the Government of India, there are thirty-six crore people living below the poverty line and there are more than five crore people who are victims of starvation. [viii]
The Court stepped in to curb this menace in the public distribution system and issued several orders. It affirmed the right to food as inevitable and upheld Article 21 of the Constitution of India, which guarantees the fundamental right to “life with human dignity.” The Food Corporation of India was ordered to ensure that food grains do not decay and are put into proper use. The states were given the responsibility of implementation of the following schemes: the Employment Assurance Scheme, Mid-day Meal Scheme, Integrated Child Development Scheme, National Benefit Maternity Scheme for BPL pregnant women, National Old Age Pension Scheme, Annapurna Scheme, Antyodaya Anna Yojana, National Family Benefit Scheme and Public Distribution Scheme for BPL & APL families.
The petition by PUCL highlights two aspects of the state’s negligence in ensuring food security: the breakdown of the public distribution system (PDS) and the inadequacy of relief programs in drought-affected areas. Following on this, it asked the Supreme Court to intervene, by directing the government to provide subsidized food grain to all families among other directions on employment etc. The petition also requests the court to order the central government to supply free food grain for all these schemes.
This case is one of the largest among the most complex litigations. Till 2005, 382 “affidavits” were submitted by the petitioner and respondents, 55 “interim applications” were filed, and 44 “interim orders” were issued[ix]. Supreme Court has passed orders directing the Indian government to: (1) introduce cooked mid-day meals in all primary schools, (2) provide 35 kgs of grain per month at highly subsidized prices to 15 million destitute households under the Antyodaya component of the PDS, (3) double resource allocation for Sampoorna Grameen Rozgar Yojana (India’s largest rural employment programme at that time, now superseded by the Employment Guarantee Act), and (4) universalize the Integrated Child Development Services (ICDS)[x]. In an interim order on November 28, 2001, the Supreme Court converted most food and employment-related schemes into “legal entitlements”. The environment created by the Right to Food Case facilitated the emergence of the NREGA. In an interim order of May 8, 2002, the SC also put in place an independent mechanism—the Commissioners of the Supreme Court—to ensure compliance of the state and central government with the orders of the court. The Commissioners submit bi-annual reports to the SC. The SC then asks the state and central governments to respond to the issues raised by the Commissioners.[xi]
Interim applications submitted from time to time by PUCL have further enlarged and consolidated these demands. The initial petition focused on the drought situation prevailing at that time, especially in Rajasthan, but the litigation now has a much broader scope. The main concern is to put in place permanent arrangements to prevent hunger and starvation thus fulfilling the concept of right to food.
The case has demonstrated that States cannot escape the responsibility of ensuring the Right to Food and it continues seeking to further strengthen the formulation and implementation of food related social security schemes. The case also forms one of the major forces behind the national food security bill. In its 2009 national election manifesto, the Congress had promised to enact a Right to Food law with the aim of guaranteeing access to sufficient food for all people. In October 2010, the National Advisory Council (NAC) drafted a National Food Security Bill, proposing legal entitlements for about 75 percent of the population. In January 2011, an Expert Committee set up by the Prime Minister under the chairmanship of Dr. C. Rangarajan examined the Bill and made several recommendations. A draft Bill was circulated by the Ministry of Food, Consumer Affairs and Public Distribution for public feedback in September 2011. The bill was originally introduced in Parliament in December 2011[xii].In May 2013 India’s government introduced an amended food security bill in the lower house of Parliament, doing away with an earlier proposal for separate categories of beneficiaries in urban and rural areas. After further amendments, deliberations and discussions in the two houses of the parliament the bill was finally enacted in September 2013.
International law recognizes the human right to adequate food. The International Covenant on Economic, Social and Cultural Rights is the main covenant in this regard. The article 11.1 of the Covenant states that “the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions”, while the article 11.2 states that more immediate and urgent steps may be needed to ensure “the fundamental right to freedom from hunger and malnutrition”. The right to adequate food is important for the enjoyment of other rights. It affirms that the right to adequate food is indivisibly linked to the inherent dignity of the human person and is indispensable for the fulfilment of other human rights enshrined in the International Bill of Human Rights.[xiii]
In its General Comment 12, the Covenant on Economic, Social and Cultural Rights clarified that “the right to adequate food is realized when every man, woman and child, alone or in community with others, has physical and economic access at all times to adequate food or means for its procurement”. According to the General Comment, the realization of the right to adequate food requires:
“the availability of food in a quantity and quality sufficient to satisfy the dietary needs of individuals, free from adverse substances, and acceptable within a given culture and the accessibility of adequate food, including both economic accessibility and physical accessibility
Feasibility of the bill
The National Food Security Bill (NFSB) envisages distribution of about 61.2 million tons of cereals, primarily rice and wheat, through the existing public distribution system (PDS) and other welfare schemes (OWS), costing the exchequer about Rs. 1,25,000 crore annually which is about 1.1% of GDP. About 62 million tons of food grain will be needed under the food bill.[xiv]
Even if the grain quantity remains fixed each year, the subsidy cost will keep increasing annually because the rising input cost to the farmers will always keep the pressure to raise the minimum support price (MSP). This will increase ineffective cost of the grain to the government; the selling price at the TPDS is unlikely to change. It is also likely that because of the rising population, the food grain quantity will also increase. Therefore, given the rising costs of the scheme in coming years, its sustainability is questioned by many.[xv]
In reality, a much bigger amount is wasted annually by way of rotting food grains stocked under unsafe conditions in the godowns of the FCI. Further, significant savings from the expenditure of the FCI are possible if it rationalizes its policies.
Thus, it is wrong to say that the Food Bill will incur any extra significant expenditure by the government.
Analysis of various aspects of the bill
The Bill specifies that the central government, state governments and local authorities shall strive to progressively realize the objectives specified in Schedule III. These include, among others, access to safe and adequate drinking water and sanitation, healthcare, nutritional, health and educational support to adolescent girls, adequate pensions for senior citizens, persons with disability and single women. It is unclear why objectives that are not directly related to food security have been included in the Bill.
The Food Security Act should ideally be an opportunity for the government to show its seriousness of purpose and commitment. For that, however, it should go beyond piecemeal measures to comprehensively ensure that food is a basic human right, addressing both immediate hunger and, in the longer term, all the three aspects of availability, access and nutritional outcomes. This calls for a life-cycle approach, starting with addressing the rights of the child, continuing through to old age, adopting an inclusive approach, greater coordination between departments and ministries, making the necessary investments and budgetary allocations to ensure both adequate production and mechanisms to cope with climate change, and greater vigilance in ensuring effective distribution and utilization of allocations made. [xvi]
Since entitlements shall extend up to 75 percent of the rural and up to 50 percent of the urban population, the exact extent of the entitlements is not clear. This implies that the actual number of people entitled to food may be less than 75 percent of the rural and 50 percent of the urban population. There are two issues with regard to these entitlements. First, the Bill does not provide a rationale for prescribing specific cut-off numbers for the share of the population included in priority and general groups. Second, the minimum requirement of including 46 percent of the rural population and 28 percent of the urban population in the priority group implies that the government will have no flexibility to revise this figure even if the share of the population living in poverty changes over time.[xvii]
In some cases, where the government is unable to deliver food to the PDS system the bill allows for cash transfers. This may defeat the main agenda of the bill as the cash can be used to buy non-food items by the people.
While the Bill seeks to provide the legal right to subsidized food grain to 67 per cent of the population it creates a problem of identifying beneficiaries. It classifies the population into two categories of beneficiaries – general and priority – but is silent on how a priority household is identified. The bill has also not clearly defined terms such as social audit, childhood care etc. The Bill says that the states are to provide the records of the poor but it is unclear whether they have accurate records for this. It could lead to significant sections being excluded from the classification of beneficiaries.[xviii]
Another contentious issue is that the Bill envisages a cost sharing between the Centre and the states where the states will bear the cost for all the major schemes. These are all good provisions but they place a significant burden on the states[xix]. With regard to implementation it is unclear if the Centre can require the states to allocate funds without encroaching on the powers of state legislative assemblies. If a state does not have the funds for implementation or the state assembly chooses not to allocate, it could seriously affect the working of the Bill[xx].
But at the same time the bill envisages key proposals for improving enforcement and transparency like separation of roles between implementation and redressal with parallel seniority at the district level ; setting up of People’s Facilitation Centre (PFCs) that can help the poor register their complaints ;establishment of a high-level credible, empowered, accessible and independent appellate body at the district, state and national level to provide support, independent critical advice and expertise to the implementing departments .
The PDS mechanism insulates the beneficiaries from inflation and price volatility and ensures access to food grains even in remote areas. But at the same time it leads to large leakages and diversions of subsidized food grain. There have been complaints of sub-standard quality of food grains distributed under this mechanism and at times there is adulteration of food grain.
In cash transfer system, there is cash in the hands of poor which expands their choices and relieves financial constraints to some extent. Also cash transfer programs involve low administrative costs because it does not need procurement, storage and distribution facilities. But this scheme requires extensive banking network and may expose recipients to price volatility and inflation. Under this cash can also be used to buy non-food items.
The bill and the subsequent act was criticized by many organizations due to various reasons –
Criticism by the Right to Food Campaign
The Right to Food Campaign finds the Bill extremely inadequate in offering food entitlements, and needs serious amendments before passage. It has been consistently demanding a comprehensive food security law that promotes agriculture production, provides for local procurement and local storage along with a decentralized PDS. It also wants safeguards against commercial interference in any of the food related schemes.[xxi]
Criticism by the National Commission for the Protection of Child Rights (NCPCR) The National Commission for the Protection of Child Rights (NCPCR) has criticized the bill on grounds such as exclusion of children under the age of two years from take home ration scheme under ICDS , the denial of entitlements to the third child under the two child norm , no mention of the term malnutrition among children in the bill.[xxii]
No role for State governments in decision making
Under the National Food Security Bill, the State governments do not have the right to identify the beneficiaries, or make efforts for giving better food security. At least 15 states including Chhattisgarh, Bihar, Tamil Nadu, Madhya Pradesh, Delhi and all 4 southern states already have their own subsidized food program and their own count of beneficiaries. The entitlements and count of beneficiaries under the Central Food Act are different and the Act is supposed to be implemented by the state governments. Most states provide wider coverage than the Central Act[xxiii]. The content of the proposed Act appears to assume that there are no state food programs. Thus, there will be confusion and implementation issues once the Bill is passed.
Critics point out that that eradication of malnutrition requires more than just removal of hunger. Simply providing for the basic minimum food is unlikely to do enough to improve India’s high malnutrition levels. Food security is necessary but not sufficient for nutrition security. There is substance in this critique. For nutrition, the focus should be on children and women. The Food Bill does take a step ahead in that direction, although it could have done more on this front.
Many activists say that for the bulk of the beneficiary population of the poor, just five kg per month per person is insufficient and have to buy rest of the ration from the open market. The TPDS will provide only about 70 to 75 per cent of the food needs[xxiv]. There is nothing in the Bill for the destitute and starving.
While the Indian council of medical research norms recommend that an adult requires 14kgs of food grains per month and children 7kgs; the Bill provides for reduced entitlements to 5kgs per person per month. Also there is an absence of entitlements to pulses and oil in the PDS which does not effectively solve the problem of malnutrition.
The National Food Security Bill 2013 could be a game-changer for national food security if the government is able to overcome corruption and reduce leakage and wastage by involving the local bodies. Much can be learned from states like Chhattisgarh and Tamil Nadu, where increased local participation (through, for example, cooperative ration shops) and have made food distribution transparent and efficient.
Overall better results can be obtained by integrating various welfare schemes designed for the wellbeing of the poor masses. India can learn from countries such as Brazil, Ethiopia and Bangladesh, where income/food transfers were bundled with education and healthcare initiatives[xxv]. The success of such initiative should be measured in terms of how many poor are able to pull themselves from poverty and become self-reliant in the coming years.
Another paradigm shift needed in India’s food security strategy relates to nutrition security. The Food Bill has provision of free nutritious meals to children and pregnant and lactating women, which is very encouraging. Four decades ago, the Green Revolution made India surplus in wheat and rice that are high-calorie but low-nutrient food. The bill, complimented with proper implementation can reduce the problem of food insecurity in India.
Edited by Shristi Banerjee
[i] National food security act , 2013
[iv]supra note 1
[vii]supra note 2