With just ten minutes to go for the lunch break on May 1 at the Supreme Court of India, the right to food litigation came up. A new bench headed by Justice Sabharwal indicated that we should take up issues that are urgent for summer. When hearing began, Justice Sabharwal remarked that "this is the most important petition we are dealing with" and asked the states and the Government of India to take this petition with `all the seriousness it deserved'. This was the first full hearing of the right to food litigation by the new bench headed by Justice Sabharwal. At the end of a marathon hearing, the Court issued several directions on important issues that are the subject of this article.

Courtesy Right to Food campaign, righttofood.com

The exchanges between the bench and the govt's counsels during the hearing is noteworthy because it indicates the low priority that the issue of bettering food security receives in the government circles. Having looked at the responses of the states on various issues, including mid-day meals, the bench remarked, "We never get to hear of politicians making political statements saying they cannot provide basic amenities. But when it comes to the affidavits provided to the Supreme Court, they always say they don't have money"!

Drought relief measures
The counsel for the petitioner (People's Union for Civil Liberties, Rajasthan), Colin Gonsalves indicated that the government had been exporting massive quantities of grain, amounting to about 19 million tonnes in the past two years, at almost BPL prices. This is done to pull the rug under the feet of people who argue that relief works must be expanded using the large quantities of grain that are lying idle in public godowns. The counsel asked the bench for directions to the implementation of famine codes.

Famine codes are administrative guidelines to identifying scarcity conditions, declaring drought, and on relief measures to be taken, etc. Famine codes have been discussed in the case for over two years and till date no state or for that matter the Government of India have responded with an affidavit on the issue. At the hearing the counsel for Government of India (GoI) told the Supreme Court that the codes do not pertain to the centre but pertain to the states alone. He argued that the famine codes were outdated and the concerns raised by the codes have been addressed by the SGRY scheme.

"…various issues have been raised by the petitioner that has relevance to the very existence of the right to life and right to food of those who can ill afford to purchase it [grains] so as to provide to their families for two meals in a day; the more we hear about these [starvation] deaths the more we realise that these people have no one to protect them" -- Supreme Court
The bench rejected his argument stating that SGRY is just a scheme for provision of employment, whereas famine codes go beyond that. Famine codes provide for declaration of drought, for provision of relief to the destitute and takes up a wider range of issues, which go well beyond the scope of SGRY. Justice Sabharwal added that he was unhappy that the Government of India had not replied to an application filed much earlier by the petitioner on relief codes. He said that he is not willing to accept "general statements" by the GOI's counsel and would prefer to listen to factual statements provided to the court in the form of affidavits.

Employment schemes for relief
Colin Gonsalves mentioned that the Employment Guarantee Scheme (EGS) of Maharashtra was an extraordinary scheme run by the state with no support from the centre. Taking note of this, the Government of India had introduced an Employment Assurance Scheme that guaranteed an employment of 100 days per poor person. This was subsequently removed and replaced by Sampoorna Grameen Rozgar Yojana (SGRY) for employment, but this had no guarantee. The counsel pointed out that the high level Abhijit Sen Committee (the `high level committee on long term grain policy') had unanimously recommended a doubling of the SGRY scheme. The scheme provides for Rs.5000 crores in cash and 5 million tonnes of food grain. The report was prepared by the reputed economist Professor Abhijit Sen and involved the work of several high-level officials of the government.

The bench asked the Government of India for the reasons for not acting on the recommendations of the report the AS committee report. The Additional Solicitor General had no answer. According to the bench, it is disturbing to note that even though the Ministry appoints a committee because it feels that there is a problem, it fails to act according to the recommendations of the same committee. Significantly, as suggested by the AS Committee, the bench decided to double the SGRY scheme, but for a limited period of three months. When the counsel for the Government of India pleaded for a day's time the Supreme Court objected to it saying that it had given the Government of India enough time to frame its answers. The bench pointed out that the hearing was supposed to come up many weeks earlier and despite the bonus extra time, the Government of India had not bothered to reply to the queries raised on earlier occasions.

BPL identification and PDS
A poor system of identification has resulted in much confusion in the BPL (Below Poverty Line) card regime across the country. Many poor people have been left out. To add to the confusion, this time there is a sharp reduction of number of people who will be eligible for receiving BPL cards. The reduction is particularly sharp in Rajasthan where the number is being reduced almost to half from the previous round (in 1997). An exercise of identifying people below the poverty line all over the country is currently underway. The experience of previous round indicates massive problems in both design and implementation of the BPL identification process. The current round is also faced with similar problems. It is compounded by the fact that there are massive reductions in the number of families that are to be categorised as BPL.

The petitioner (PUCL) had submitted an application for the review of the BPL selection process, and had further asked for a review of the working of the public distribution system. The bench pointed out that the public distribution system should be made to function in such a way that it benefits the poor and the needy. The petitioner asked for a committee to be appointed to review various issues of the public distribution system. The bench agreed in principle to the need for review but said that we will have to work a little more on setting the terms of reference of the committee.

Antyodaya Anna Yojana
The petitioner had asked for a social security system for the destitute and had asked for an expansion of the Antyodaya Anna Yojana. The Attorney general remarked in the previous hearing that the scheme had been expanded by 50 lakh additional families. It would now cover a total of 1.5 crore families. The court had asked Mr. Soli Sorabjee to submit an affidavit about the expansion, but this had not been done by the time of the hearing. The bench expressed displeasure at this and asked the Government of India to submit an affidavit.

Mid-day meals
The Supreme Court had earlier asked all the states and union territories to provide cooked mid-day meals in all government and government aided schools. This has not happened in many states so far. The bench said that it did not want to get into the question in detail at this hearing due to lack of time. The petitioner pointed out that most states were initiating some sort of a token programme at the least. But some states including Uttar Pradesh, Bihar and Jharkhand had not shown signs of starting the programme. These states were further offenders on a regular basis to most orders in this case. Mr. Gonsalves had asked for the senior officers to be present in the Supreme Court for the next hearing to explain to the Supreme Court as to why they are not implementing the orders of the Supreme Court. The Supreme Court initially considered this proposal and said that it could call the chief secretaries and secretaries of other relevant departments. Later it decided to defer the decision.

The counsel for Bihar Mr.Singh argued that Bihar has filed affidavits and has stated why it is not able to implement the programme. When he started arguing that the state has very few measures of finance including excise, sales tax, etc. the bench cut him short by saying that "we do not want to hear general lectures" and asked him to provide clear affidavits as to what the state proposed to do. The counsel argued that they would like to start by implementing in four districts. The bench said that they could consider if it were at least ten districts, but said that they are not dealing with the issue of mid-day meals in this hearing.


Drought relief
Significantly, the Court ruled in favor of the famine codes and directed the governments to follow the codes to provide drought relief for the interim period of three months between May - July. Famine codes will now be binding in the months of May, June and July. However, if better measures are incorporated in other schemes, the Court allowed that these may be implemented instead. Many of these codes were instituted almost a century ago and some states had revised them in late '80s. While these have been serving as administrative guidelines, the SC has converted them into a legal binding on the government.

The Supreme Court then directed that the Government of India must double the resource allocation (both grain and cash) for the Sampoorna Grameen Rozgar Yojana (SGRY) for the months of May, June and July.

    "…we direct that on pro rata basis, the recommendation that present SGRY scheme should be expanded at least doubled be implemented, both in regard to allocation of food-grain as also cash, for the months of May, June and July. The State Government shall lift those allocations and ensure that the same reach those for whom it is meant."

The Court also asked the Government of India to clarify its response to the Abhijit Sen Committee report by August 8, 2003. This forces the government to respond to the issues for the public record.

Given the widespread drought created crisis in the country, this was the most important directive that emerged in the hearing. The order implies that an additional amount of Rs. 1250 crores and 1.25 million tonnes will have to be allotted for creating relief employment in the next three months. The order has brought much needed additional cash into relief works. In terms of additional grain, though significant, this does not add too much by itself. For example, Rajasthan alone received 2 million tonnes additional grains just a while ago, whereas the additional grains offered in the order for the whole country is 1.25 million tonnes. Despite that, this direction is remarkable on several counts. The court is typically unwilling to take decisions that have a huge cost implication. This order is going to cost the government a stiff Rs.2000 crores. When the Government of India pointed out that this is a huge burden, the bench categorically held that it is a duty of the government and it cannot be considered a burden.

The bench also said that long term measures will be taken when the court resumes after summer. Given this stand, it is likely that progressive steps are bound to result on resumption. If the additional funds are distributed to the drought stricken states than to mechanically distribute them to all states, then it can amount to a significant additional to relief works provided in these places.

BPL identification & PDS
The Court came down heavily on the current public distribution system. It has directed the government to cancel licences of ration shop dealers if they do not open on time, overcharge, retain ration cards, make false entries in BPL cards, or engage in black marketing. BPL households are to be permitted to buy grain in instalments.

On the current malaise in the PDS, the Court directed the government to cancel licences of ration shop dealers if they do not open on time, overcharge, retain ration cards, make false entries in BPL cards, or engage in black marketing. BPL households are to be permitted to buy grain in instalments. The Court also directed that the working of the public distribution system should be reframed for it to represent scientific and reasonable redistribution of grains to the poor and the needy. The order states that a system should be evolved to ensure that the poor are on the bpl list, but did not elaborate on this.

Antyodaya Anna Yojana
On this issue, the bench's directions are pushing the government a step closer to a social security based on rights. Antyodaya cards are to be given to several categories of people ranging from aged, infirm, disabled, destitute men and women, pregnant and lactating destitute women, widows and other single women with no regular support, old persons (aged 60 or above) with no regular support and no assured means of subsistence, households with a disabled adult and no assured means of subsistence, households where due to old age, lack of physical or mental fitness, social customs, need to care for a disabled, or other reasons, no adult member is available to engage in gainful employment outside the house, and primitive tribes.

Mid-day meals
The Court singled out Jharkhand, Bihar and Uttar Pradesh for not having initiated mid-day meal scheme at all with a guideline on a practical step out of the malaise. They have been asked to immediately start providing mid-day meals in at least 25 % of the districts (with priority to poorest districts).

The bench reserved strong words for the low priority that the litigation was being given by the Government of India and the various states governments on this petition. Taking a strong stand, the bench refused on occasions to account for arguments of the Government of India saying the "prefer to have facts in form of affidavits, rather than general statements by the counsel". The justices pointed out that the Government of India has not bothered to reply (despite 3 weeks of extra time) to the Supreme Court.

The proceedings of hearing leave no doubt about the importance the Court gave to this petition. The bench indicated the seriousness of the issues at various points of time with statements like "…various issues have been raised by the petitioner that has relevance to the very existence of the right to life and right to food of those who can ill afford to purchase it [grains] so as to provide to their families for two meals in a day"; "the more we hear about these [starvation] deaths the more we realise that these people have no one to protect them".

Campaigners with the Right to Food campaign believe that there are good prospects of steady progress with the petition in the months to come, after the hearings resume in July. Several groups are planning a campaign to ensure that primary tribes and widows without support can actually receive the cards entititling them to benefits from Antyodaya Anna Yojana. The first to take off should be a campaign for Sahariyas.