Right to Food in Law vs. Empty Stomachs: An Insoluble Conjuncture
Necessity knows no law- the proverb more or less suites with the present crisis and perfectly portrays the helplessness of vulnerable people fighting with hunger in the ongoing national and international crisis for corona. Very recently, Italian Supreme Court of Cassation has given a rule, in a review of overturning a subordinate court’s decision, that stealing small amount of food to satisfy a vital necessity for food did not constitute a crime as it is done in the face of immediate and essential need for nourishment. Though the case was not in a pandemic time, but it reveals how crucially considered‘the necessity of food’ can be, most importantly, in a highest court’s decision.
Food Crisis in pandemic: Bangladesh scenario
Corona virus hit the world hard and showcases one of the harsh realities in a pandemic- the food crisis all over the world. While the breach of laws and rules of social distancing is strictly being handled by the cops for the last 3 months in pandemic shutdown, the minimum basic needs like food are not being provided in a large scale to the vulnerable people and due to closure of workplace, institutions, factories, even the low income families and middle class section of the society are struggling to survive.
People going insane due to food crisis, dying at streets for relief, eating food wastes and garbage, many relief centers getting attacked and robbed by hunger-pierced mouths, reliefs being stolen by local political leaders, long queue to food reliefs, people even being tortured for seeking relief – countlessstories to see in media.
The current pandemic scenario of Bangladesh is getting intensified and problematic for the government to handle. The country sinks into the trouble on how to combat with hunger apart from a major tension of viral infection. Unfortunately, the laws and regulations are not capable to fill the empty bags of the poor standing in queue, dying for relief, crying and craving for a single grain of food.
Lawsor food: Pandemic choice?
Importance of social distancing cannot be well understood and implemented unless food supply and basic necessities are met by the government. It is something uncontrollable and unjustifiable to just smash up violators of lockdown rules while they have nothing to feed themselves. Food is one of the major issues right now in pandemic which have deep sociological impact too upon a society.
If not sufficiently met for the mass and unfed, it may lead to massive deaths, social instability, increase in crimes rates, even social anarchy. Whatthe AC land in Monirampur or Burichong did or what the Tangail Municipality Ward Councilor did in the name of maintaining social distancing and hygiene, resembles anunkind and authoritarian attempt towards people who were extremely vulnerable in their condition of living life.It is important to understand the inner philosophy of the current situation of joblessness, that people are unable to earn and so, to eat as well.
Food as the only ‘good’: An irresistible necessity
When right to health is a major concern across the country in the time of pandemic, the ultimate question as to how millions of deprived and currently unemployed people will breathe in peace when they have no way to earn and no food to eat, can be posed too. Apart from corona, this biggest part of the countries’ population will die by starvation being the worst sufferer of economic recession worldwide.
What Article 32 of the Constitution protects for us, right to life will seriously be threatened with almost nosurety of basic needs, most importantly food. People are being deprived of life due to the crisis. ‘No food, No life’- such becomes the theory of the life of this vulnerable, poor section of our society at the time of corona. A good figures and allowance have been given, but that is insufficient or not reaching to them in a systematic way, consequently making the whole process of distribution a failure.
Hunger can definitely be termed as the ‘irrefutable curse and inescapable virus’, for the poor section of a society which put its claws over these unfortunate people from time immemorial. If the State constantly being incapable of guaranteeing food to them in this pandemic, how are they supposed to survive?
Can it be an obligation of the State or the government to feed the mass?
If we look into our Constitution, no right to food is there which provides State obligation to feed the citizens in clear and direct terms. In our Constitution, Part II deals with fundamental principles and Part III deals with fundamental rights.The debate as to the enforceability of fundamental principles is not new as both are constitutional provisions, but it should be known that fundamental rights and principles are totally different in case of meaning and applicability.
Article 8 (2) of the Constitution denotes to the non enforceability of the fundamental principles of State Policy stating that-
The principles set out in Part II shall be fundamental to the governance of Bangladesh, shall be applied by the State in making laws…, shall form the basis of the work of the State and its citizen, but not judicially enforceable.
It means all rights and provisions in Part II, from Article 8- Article 25of the Constitution, is not judicially enforceable. Thus, food is a ‘basic necessity’, not a fundamental right of a citizen. The most common misconception about right to food is that people believes having food is a fundamental right while in reality it is a ‘basic necessity’ not given the status of fundamental right in our Constitution. Fundamental principles are ornamental to the Constitution and expected to be used mostly in law making and policy framing issues. These principles are a manifesto to the public included as the solemn gesture and symbol of highest aims and aspirations of State’s endeavor in achieving goals of development and upholding people’s entrustment. But they are not judicially enforceable in any court.
In Kudrat-E-Elahi Panir vs. Bangladesh 44 DLR (AD) 319, Supreme Court of Bangladesh opined that fundamental principles are not laws and are legally unenforceable by any court of the State.It means to judicially invoke the ‘right to food’ it must be recognized either by direct provision of Part III of our Constitution, or by a domestic law because only violating a law can be enforceable.
One of the fundamental differences in rights and principles is that, fundamental rights are mandatory and fundamental principles are directive and declaratory. In case of any dispute before the court in between these two connotations, fundamental rights will be prioritized. So, apparently fundamental right is more important than fundamental principle of State policy.
In case of breach of fundamental rights, the aggrieved person can file writ petition under Article 102 of the Constitution on ground of violation of fundamental rights. It means not even the government or the State can impose restriction or violate fundamental rights of a citizen without reasonable ground. But no such constitutional remedy is there for breach of fundamental principles because of its non enforceabilitycharacter.
Article 15of our Constitution is thus, ceased to be a tool to compel the government to feed the people irrespective of circumstances of a nation. The provision includes some basic necessities in its language-
It shall be a fundamental responsibility of the State to attain, through planned economic growth, a constant increase of productive force and a steady improvement in the material and cultural standard of living of the people, with a view to securing to its citizens:
the provision of basic necessities of life including food, clothing, shelter, education and medical care, right to work or right to guaranteed employment at a reasonable wage…
The word ‘obligation’ or ‘liability’ invokes a sense of enforceability but the term ‘responsibility’ may not in clear sense of the term. When the word used is ‘obligation’, it can have a narrative to be‘legally binding’ on a person to do a task. Similarly, the word liability means a person is liable to do a certain thing and failure to do that will have certain legal consequences for non fulfillment or non abidance.
If we closely observe some of the fractions or phrases of this provisions, no direct term‘obligation’ is used, rather a term of ‘responsibility’ to implement sustainable economy in gradually in a ‘constant’, ‘steady’ process and put effort to standardize public life with basic necessities as far as possible. As there is no enforceability of fundamental principle, a person cannot sue a government on a mere ground of not getting food, clothes, education or job. This can be an important reason why inclusion of right to food as a fundamental right is essential.
Reasons why food is not a fundamental right:
Each State has resource constraint for which it cannot guarantee the fundamental principles of the Constitution in a direct and immediate basis rather in a systematic and gradual approach.If food was a fundamental right, anyone could file case under Article 102 on mere ground of not having food to eat and it would be a chaotically haphazard atmosphere for the court to handle with. It would also be difficult for the government to ensure immediate food to public.
Can the government avoid the duty to feed vulnerable people?
No. The present circumstance of the nation is an emergency situation and a national crisis. The word ‘pandemic’implies an acute form of fear, severity, uncontrollability, unpredictability. Pandemic breeds panic, pressure, poverty and hunger in an alarming level than epidemic does. When we are saying ‘hunger’,it rises to a degree of ‘suffering’ and does not remain limited to a mere ‘deprivation’ only. It is not ‘appetite’it is much more intense and serious.
Thus, what we are going through right now is a ‘national exception’. In this threatening moment,government should at any cost ensure the immediate maximum implementation of food availability through relief programs. The concept of ‘access to food’ or‘food security’ is also importantly linked but remote in this regard. The word ‘availability’here denotes a moreimpulsive and specific sense, whether people can have it in any least possible ways, either from reliefs, shops, market, voluntary distribution or in nature or any other means.
In pandemic, food availability is the predominant factor to be ensured at an earlier basis as the non availability can cause direct affect, even resulting in death, on the people and that is a clear violation of the constitutional right to life if the government does not take step in reasonable period of time within.
Although right to food is not considered as a fundamental right and not labeled as a ‘crying need’ as like as right to fair trial, right to protection of law, right to free speech etc., but in a national exception like this, food certainly becomes. The government though not in the direct obligation to provide food, but is obliged to ensure food availability within reasonable period of time and sincere deliberation in such situation, especially for as long as the emergency circumstance exists.
State has the constitutional mandate to ensure basic necessities and is responsible to incorporate policies and laws to accelerate economic growth and standard of life according to Article 15, with the best use of its resources available to it and also to improve the level of nutrition as per Article 18 (1). The word ‘shall’ used in Article 15 indicates that the government cannot escape from the duty to ensure poverty alleviation, minimum livelihood means to the needy.
In the wider and extensive judicial interpretation of Article 32 can be seen in Rabia Bhuiyan, MP vs. Ministry of LGRD and others 59 DLR (2007) (AD) 176, from which we can say that, State has the liability not to deprive people ‘intentionally’ from access to food and other health essentials, as right to food is greatly and sometimes closely (pandemic, crisis or natural hazard) , interlinked and inseparable from ‘right to life’- a constitutional right and a bold fundamental human right.
Article 11(1)of International Covenant on Economic, Social and Cultural Rights, 1966 has recognized 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.In Article 11 (2)of ICESCR, it focuses on the right to individuals to freedom from hunger.
In one of the General Comments on ICESCR, the CESCR remarked that-
The right to adequate food, like other human rights, imposes three levels of human right based obligation upon a State party– the obligation to respect, to protect and to fulfill. The obligation to fulfill incorporates both an obligation to facilitate and an obligation to provide. The obligation to respect existing access to adequate food requires State parties not to take any measure that result in preventing such access. The obligation to protect requires steps by the State to ensure that individuals do not get deprived of access to adequate food. State must pro actively engage in activities to strengthen people’s access to food thorough utilization of resources available to it.
The most relevant words of this comment is that- States obligation to fulfill also applies for persons who are victims of natural or other disaster.Corona Virus is enlisted as an infectious disease under Article 4 of the Communicable Diseases (Prevention, Control and Elimination) Act, 2018 by the government. According to Section 2 (11) (c)of the Disaster Management Act, 2012 defining ‘Disaster’, includes-
…Disease causing pandemic such as influenza, bird flu, anthrax, etc.
Thus, corona pandemic falls under the purview of a natural disaster and thus, the obligations in the general comment are applicable in this regard.
As per Article 25 of our Constitution, the State has obligation to respect the principles of international laws. In view of the credibility of ICESCR, the Supreme Court of Bangladesh opined in BNWLA vs. Government of Bangladesh and others 14 BLC (2009) 703, that-
The court can look into these conventions and covenants as an aid to interpretation of the provisions of Part III, particularly to determine the rights implicit in the rights like right to life and right to liberty, but not enumerated in the Constitution.
Right to food can, thus, be termed as an implicit right in and embedded with the essence of right to life.
Right to food is not directly dealt with by any separate domestic laws in Bangladesh. But in absence of any explicit provision or even a national law regarding any issue, Court can have an insight from relevant international laws to decide a case. The Supreme Court held in HM Ershad vs. Bangladesh 21 BLD (2001) (AD) 69, that-
The national courts should not straightaway ignore the international obligations which a country undertakes. If the domestic laws are not clear enough or there is nothing therein, the national courts should draw upon the principles incorporated in the international instruments.
However, the direct application of customary international law in a domestic case is a ‘rare to see’ issue and it is up to the discretion of court whether to directly apply the international instruments in a case. Nevertheless, right to food cannot be ignored by the State in any way.
Acts to be done now:
While it is crucial to ensure social distancing and sanitization of the entire country, the essentiality of basic needs like food, medicine, health care is undeniable. Germs not the only, not probably the one directly affecting them but the starvation is. Hygiene becomes a luxury when there left nothing to feed their mouths. Thus, before going hard-line to fix quarantine, social distancing or masks on public faces, Government should be strict on ensuring social protection package having food and a minimum allowance for at least 6 months, to these unfortunate people.
Government should also undertake social action plan and social security schemes and large scale initiatives of food distribution to cop up with the food crisis. Moreover, special package and assistance to the on duty officials, doctors and health workers should be given. Also, the farmers, diaries, poultry business and farms owners should be provided with special incentives and monetary allowance.
A starving face can feel the pain of hunger only which we cannot, because people like you, me, all of us – we are privileged enough. Million faces are staring at us and sleeps with a hope just to live another day on earth. But their lives are too uncertain to see the next sunrise. Government should be more thoughtful about the sufficient distribution of food and daily necessities to the impoverished vulnerable people across the country in an immediate basis and be mindful of their livelihood or job, on a later note, until the pandemic situation comes to an end. All they need right now to survive is food and a bunch of ‘Laws’ will not fill the empty stomachs!
Writer: The writer Evnat Bhuiyan is the Editor of NILS Bangladesh Online Law Journal and a student of LLM, Department of Law of Jagannath University.
BBC News, Italian court rules food theft ‘not a crime’ if hungry, published on May 3, 2020, available at: https://www.bbc.com/news/italaian -court-rules-food-theft-not-a-crime-if-hungry/ .
Ibrahim Hossain Ovi, ‘WB: Bangladesh must ramp up corona virus action to protect people, revive economy’, Dhaka Tribune, published on April 12, 2020, available at: https://www.dhakatribune.com/wb-bangladesh-must-ramp-up-corona-virus-action-to-protect-people-revive-economy/ , last accessed: April 12, 2020.
Hereinafter used as ICESCR.
CESCR means The UN Committee on Economic, Social and Cultural Rights.
The Right to Adequate Food, (Art. 11) 12/05/99, E/C , 12/1999/5, ICESCR General Comment 12, (General Comment), para 15.