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8.09.2010

A constitutional right to food for India?

The New York Times reports that India's Congress Party is mulling a constitutional amendment that would guarantee a right to food. Some quick background info, not in the Times piece, to suggest that it might not be much of a surprise (or, as a practical matter, a big deal) if this were to happen:
(1) The Indian Constitution is easily and frequently amended, relatively speaking.
(2) When your constitution is already the longest in the world, running literally hundreds of pages, it becomes kind of hard to argue against loading up the constitution with "too much stuff."
(3) Constitutional rights don't all have the same effect in India as they do here. Yes, the Supreme Court of India is pretty vigorous when it comes to judicial review, but the Indian Constitution already contains a number of positive socioeconomic rights in Part IV's "Directive Principles of State Policy," which have been deemed judicially unenforceable, and presumably this right too would be placed in this section.
(4) At a global level, as an empirical matter, positive socioeconomic rights are becoming increasingly common, so in that sense, India would be in line with global trends to add another one. (The right to food, in particular, has become increasingly popular; whereas no constitution in 1946 contained such a right, about 15% do now. It's also the case that the poorer the country (as measured by GDP per capita), the more likely it is to include such a right in its constitution. Those facts courtesy of a data set prepared by my co-author Mila Versteeg of the Centre for Socio-Legal Studies at Oxford.)
(5) And one last fact - in a manner of speaking, the Indian Constitution already contains something akin to a right to food; Article 47 (which falls under the judicially unenforceable Part IV) provides that the government "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."

9 comments:

  1. This is probably the worst post I have seen here. It stinks of ignorance and borders on being extremely racist.

    The Indian Constitution has proven to be flexible to meet the challenges of a growing democracy. There is however, a basic structure doctrine which states that some parts of the constitution cannot be amended. To suggest that it is a document which is easily changed indicates your lack of understanding of the Indian system.

    Secondly, it would be great if you have some research on the right to food in India, pursuant to orders in a public interest, the government has universalised its ICDS and midday meal schemes. There have also been advances in other areas, the Employment Guarantee Act, seeks to ensure a minimum amount of work in the poorest districts in India, enhancing the ability to purchase food.

    Recently there has been a push for an enforceable right to food, with the government committing to introducing an act to that effect.

    An ex-reader

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  2. Under point 3, you mention that the Indian Constitution contains a number of “positive socioeconomic rights” in part IV’s Directive Principles of State Policy. You mention that these have been deemed non-justiciable. This is true to some extent. In particular, Part IV explicitly states that “Directive Principles” are not to be considered justiciable. However, the post doesn't mention that this was precisely the issue in one of the most famous cases on the right to food worldwide. In People's Union for Civil Liberties v. Union of India & Ors, In the Supreme Court of India, Civil Original Jurisdiction, Writ Petition (Civil) No.196 of 2001, the court interprets the right to life to include a right to food. In addition, in a case on education (Unnikrishnan J.P. Vs. State of Andra Pradesh, [(1993) 1 SCC 645]), the court asked: “Is it a mere pious wish, even after 44 years of the Constitution? Can the State flout the said direction even after 44 years on the ground that the article merely calls upon it to “endeavour to provide” the same and on the further ground that the said article is not enforceable by virtue of the declaration in Article 37. Does not the passage of 44 years – more than four times the period stipulated in Article 45 – convert the obligation created by the article into an enforceable right?” The right to food case can be found here: http://www.escr-net.org/caselaw/caselaw_show.htm?doc_id=401033.

    Also, you don’t say this in your post, but just to be sure: it is well-known that socioeconomic rights are by far not necessarily positive (and civil and political rights not always negative). Exactly as with civil and political rights, the State has to respect (non-interference), protect (against abuse by third parties) and ensure (take active steps to realize the right for everyone, e.g. improving market access, investing in rural development, ensure that inheritance laws don’t dispossess women of access to land, etc. etc.) the right to food. In international law, the right to food is something far more nuanced than a bundle of goods such as “a monthly 77-pound bag of grain, sugar and kerosene”.

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  3. Anonymous's point that "positive" and "socioeconomic" are not actually synonymous is logical and well taken, although I think there is a fair amount of confusion in the literature on this point as reflected in competing definitions of what constitutes a "second generation" right.
    Ex-reader (assumingm, counterfactually, that you are still reading): re: the Kesavanada/Minerva Mills/Article 368 line of cases: Are you trying to say that the "basic structure" doctrine could actually be invoked to obstruct the *addition* of a right to food to the Indian Constitution? Because I do not see at all how that could possibly be the case. Please explain.
    As for saying that the post "borders on extremely racist": again, do you care to explain how the posting is racist? If you can make a credible argument to that effect, I will retract or amend the post. Otherwise, please refrain from calling people names simply because you don't like what they say.

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  4. I just returned from a trip to Brazil, which earlier this year (February 3) also adopted an amendment to the constitution guaranteeing the right to food. Like that of India, Brazil's Constitution has been frequently amended, and is rich in socio-economic rights.

    For those interested in comparative work on the topic, a good resource is the Food and Agriculture Organization website

    http://www.fao.org/righttofood/

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  5. Some helpful empirical figures on the right to food, courtesy of my co-author Mila Versteeg of the Centre for Socio-Legal Studies at Oxford ...
    In 1946, 0% of the world's written constitutions contained some form of a right to food; as of 2006, that number had increased to 15%. Interestingly, India can be counted as one of the countries that *already* has an express constitutional right to food, in the form of Article 47, which provides that "[t]he 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."
    Original post now updated too.

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  6. A large population stemming from a wide array of socio, economic, religious, political and cultural backgrounds is most likely to spiral into its own doom. With a high economic and social growth rate, however, India has managed to keep itself more than stable, which i believe to be an achievement in itself.
    A detailed insight into the health problems faced by poorer states in India today, like the news article quoted herein, are likely act as a guide to the future course of action in making India a better nation.
    I however, disagree with the comments based on the report made on this website. A point wise reply might meet the ends of expressing my disagreement:

    You wrote "(1) The Indian Constitution is easily and frequently amended, relatively speaking"

    1. It might be accepted that the Indian Constitution is comparatively the most frequently amended, however to state that it is easily amended would be incorrect. A plain reading of Article 368 would show that there are certain parts which are as 'easily' amended as a 2/3rds majority vote in the Legislative Houses, while others need a ratification by atleast 1/2 the States India, which are 28 in number, thus making it a cumbersome exercise. Further, a flexible constitution has indeed helped India to meet the challenges to democracy, as and when they arise.

    You wrote "(2) When your constitution is already the longest in the world, running literally hundreds of pages, it becomes kind of hard to argue against loading up the constitution with "too much stuff.""

    2. Being one of the younger democracies in the world, India had the benefit of reading and adopting various provisions of a number of Constitutions of nations the world. Indeed, one may even term it an 'experiment', and a sucessful one at that. In any case, the length of the Constitution only represents the exhaustiveness of the same which has not only acted as a charter of autonomy of institutions, but also incorporated a mutual checks and balances system, not to forget the primacy in upholding individual rights.
    (cont..)

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  7. This comment has been removed by the author.

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  8. You wrote "(3) Constitutional rights don't all have the same effect in India as they do here. Yes, the Supreme Court of India is pretty vigorous when it comes to judicial review, but the Indian Constitution already contains a number of positive socioeconomic rights in Part IV's "Directive Principles of State Policy," which have been deemed judicially unenforceable, and presumably this right too would be placed in this section."

    3. This might come out to be more of a rash statement to make. All Constitutional Rights guaranteed under the Constitution of India are very much of the same effect as in the United States, if not more. The Supreme Court of India has given a wide interpretation to Articles 14, 19 and 21 which guarantee a Right to Equality, various Freedoms and a Right to Life and within such rights, the positive obligations of the State under the DPSP have been read as being obligatory on the State. The concept Directive Principles have been borrowed from the Irish Constitution. The Indian Constitution under this head recognized 2nd Generation and even 3rd Generation rights at a time when these were not even thought of across the world. This at a time when President Franklin D. Roosevelt thought of proposing 2nd Generation rights, which never came to be accepted eventually. (may refer to http://en.wikipedia.org/wiki/Three_generations_of_human_rights) I hasten to add that these rights are being recognized by the Judiciary in India.

    You wrote "At a global level, as an empirical matter, positive socioeconomic rights are becoming increasingly common, so in that sense, India would be in line with global trends to add another one. (The right to food, in particular, has become increasingly popular; whereas no constitution in 1946 contained such a right, about 15% do now..."

    4. It is definitely not on the basis of a trend analysis that the Constitutional Amendment is sought to be made. It is in recognition of the problems that are actually being faced, that this amendment is being mulled. The amendment will only serve to act as a hand in glove with the existing right to employment and food security laws in place in India.

    PS: It is unfair to compare India and China. India has a host of labour laws and there is no reckless disregard for the environment in the development. Being a democracy which ensures free speech to all, the task of development is more arduros.

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  9. I confess that I am baffled by some of the comments in this thread.

    @ Ashish: (1) isn't it contradictory to argue that the Indian Constitution isn't actually that easily amended, on the one hand, but that flexibility is a merit of the Indian Constitution, on the other hand? You cannot logically have it both ways. Also, it may well be that having a flexible constitution has benefited India, but I'm not sure what that has to do with the original post. I have expressed no view on the merits or usefulness of the Indian Constitution.

    (2) I neither imply nor assume that India is responding to or acting upon an analysis of global trends. It would surprise me if any country, India or otherwise, were to do so. The point is, rather, that India's contemplated amendment is not nearly as surprising or novel as one might assume simply from reading the original piece in the New York Times. Let me put my actual point more bluntly: India does not deserve and should not receive credit for "inventing" a constitutional right to food, if and when it adopts such a right explicitly.

    (3) I do not understand why you are saying that it is "unfair to compare India and China." No one has mentioned China. Except you.

    If readers wish to defend or celebrate the Indian Constitution for reasons that have nothing to do with the original posting, I wish they would do so elsewhere, and in a manner that does not imply that the original posting committed a variety of imagined slights against either India or the Indian Constitution.

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