It is troubling that the Centre has displayed a casual disregard for laws and court rulings that create a framework of statutory social rights for protecting the vulnerable. Particularly worrying is the deliberate enfeebling of the National Food Security Act (NFSA) by a series of administrative and fiscal measures. Passed in the dying months of the UPA 2 in September 2013, the responsibility for implementing this ambitious law fell on the shoulders of the NDA, which swept into office the following summer. Although the BJP had supported the law in Parliament — and demanded that it be strengthened — its government has been conspicuously indifferent to its duties as prescribed in the law and the Supreme Court rulings.
The Supreme Court held that Article 21, which guarantees the fundamental right to life to all persons, implicitly contains within it the right to live with human dignity, and this includes the right to adequate food and nutrition.
First, the food security law mandates that up to 75% of rural and 50% of urban residents receive 5kg of highly subsidised grain each month. For the ‘poorest of the poor’ households, called Antyodaya, the entitlement is 35kg a month. It further mandates universal maternity benefits and a free daily meal for pregnant and lactating mothers, school meals for all children from six to 14 years in government and aided schools, feeding children below six years in Integrated Child Development Services (ICDS) centres and an additional meal for malnourished children.
Yet, none of these provisions have been implemented, and there is little evidence of an official commitment to realise these in the foreseeable future. The NFSA prescribed a 365-day time-limit for selecting the households for subsidised grains. If the government needs to extend this limit, its fitting course is to return to Parliament and publicly explain the reasons for the delay, and seek amendments to the relevant sections of the law. The government, instead, has only resorted to a series of administrative orders.
The second blow came with the Budget of 2015, which had cut ICDS funding by half, and made severe reductions in school meal allocations. Most gravely, the budget made no provisions for the maternity benefit programme. The claim that states would be free to make up for the losses through their higher share in the central tax pool obscures the reality that because central fund transfers by centrally aided schemes have declined, the total fund availability with the states has increased only marginally.
Thirdly, the newly notified Public Distribution System (PDS) Control Order restricts the eligibility to receive entitlements under the NFSA only to ‘citizens’ and ‘recognised refugees’. It is important to note here that Article 21 guarantees the right to life to all persons, and not only to citizens. Therefore, the right to food applies to everyone, and not to citizens alone. The NFSA never lays down the qualification for being a citizen. It speaks of ‘persons’, ‘women’, and ‘children’, but never of citizens. The new requirement — contravening the position of both the Constitution and the law — would practically exclude the most vulnerable persons. Among these would be the homeless, migrants, forest dwellers, nomads, de-notified tribes and single women, who would find it nearly impossible to produce citizenship documents.
Further, the order by executive fiat prescribes the phasing out of the Antyodaya category, stipulating that when an Antyodaya household becomes ineligible due to death, migration or improved economic status, it will not be replaced by new households. In this case, many vulnerable households, such as those headed by single women or old people, if dropped from Antyodaya, would receive just 15kg of grains, instead of the earlier 35kg. This order violates the Supreme Court orders that Antyodaya entitlements should not be reduced. The PDS order also freezes, until next census figures are available (nearly 10 years from now), any expansion in the number of people under its cover. This would result in reducing the percentage of population that should be covered in accordance with the law. As more children are born, households would get less grain per person, leaving no scope for the inclusion of new migrants and families which slipped into poverty.
It is important to understand that a law is different from a government programme or scheme. It is entirely within the legitimate powers of any democratically elected government to make, amend or withdraw any scheme. But once it becomes a law, this executive freedom is curtailed. It can, however, choose to make more provisions than the law prescribes, but not less. This indeed is the rationale for creating a legal framework of enforceable social and economic rights. Just as the Constitution binds all governments, regardless of their ideologies and predilections to respect all democratic freedoms, socio-economic rights legislation like the food security law are binding to ensure all that is necessary is provided for the dignified survival of people, regardless of competing priorities.
Therefore, socio-economic rights laws like the NFSA constitute critical protection of the impoverished and vulnerable populations from possible neglect by the State. India over the past decade, spurred by judicial and civic activism, had only begun to create a still weak and incomplete welfare architecture of social and economic rights. It is alarming that the new government, by its casual indifference to these laws and court rulings, is threatening to dismantle this incipient democratic protection of the poor, in another ominous challenge to democracy.
Harsh Mander is convenor, Aman Biradari. He is the author of Looking Away: Inequality, Prejudice and Indifference in New India. The views expressed are personal.