“The right to food is the right to have regular, permanent and unrestricted assess, either directly or by means of financial purchases, to quantitatively and qualitatively adequate and sufficient food corresponding to the cultural traditions of the people to which the consumer belongs, and which ensure a physical and mental, individual and collective, fulfilling and dignified life free of fear”
-Special Rapporteur on the Right to Food
“Food Security exists when all people, at all times, have physical and economic access to sufficient, safe and nutritious food that meets their dietary needs and food preferences for an active and healty life”
-Food and Agriculture Organization, World Food Summit
The Right to Food – A Basic Human Right
The Government’s initiative to take hunger and food insecurity in India up to debate with the goal to reach a National Food Security Act is welcomed. The Right to Food is the foremost right of every human being. Ensuring access to natural resources and/or income to feed oneself with adequate nutritious food is of crucial importance for the enjoyment of all other rights and for achieving social justice. In the beginning of 2010, the Indian Government assigned an Empowered Group of Ministers (EGoM) to draft the framework in which the National Food Security Act (NFSA) should be written.
Food Security and Present Scenario
Since 1997, India has experienced an average annual GDP growth rate of 7 percent. Despite of this, the number of under- and malnourished people has increased, and today 250 million of India’s citizens are undernourished. 43, 5 percent of all children under five years are underweight (Global Hunger Index 2010) at the same time as grain is rotting in storage, cash crops takes up a growing part of the fields and peasant farmers and indigenous peoples continue to be pushed out from productive agricultural land for a range of reasons.
Government Proposal of National Food Security Act
The proposed draft of the NFSAt aims to cover Below Poverty Line (BPL) families with a provision of 25 kg of food grains are provided each family (five people) for Rs 3 per kilo. Women will be considered as heads of household. The draft makes the Central Government responsible for identifying poverty levels and allocating food or money to State governments. The State Governments are responsible for the implementation and monitoring of the resources. A Central Food Security Fund and a State Food Security Allowance Fund will be established for the allocation of money and the necessary resources. The Act will make use of the already existing Public Distribution System (PDS).
The Indian Constitution provides a strong framework for the protection and promotion of human rights. Article 21 secures the protection of life and personal liberty. Article 47 states that “the 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”. The following laws have direct and indirect bearing on the realization of right to food, especially: Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA), Minimum Wages Act, Land Acquisition Act, Forest Rights Act, Right to Information Act, Constitution (73rd Amendment) Act regarding Panchayat Raj, 73rd constitutional amendment and its extension to Fifth Scheduled Areas by PESA, Disability Act, Caste and Scheduled Tribe (Prevention of Atrocities) Act , 1989. The Protection on Human Rights Act was passed in September 1993 by the Indian Parliament. The purpose of the Act was to provide a national monitoring mechanism for human rights and to protect the population from human rights abuses. On January 10th 2008, the Supreme Court ruled that every family living below the poverty line should be provided 35 kg of grain. Since 2001, the apex court is hearing public interest litigation on hunger, malnutrition, social insecurity and employment related rights issues, and has passed 65 such orders.
The new Food Security Act – synergized with all these laws and provisions – can act as an additional meaningful strategy towards realization of the right to food for all in India.
International Treaties and Guidelines
Main international binding human rights instruments which have strong reference to the right to food and of which India is a states party are the International Covenant on Economic, Social and Cultural Rights (ICESCR Art. 11), the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW, Art.24 &27), and the Convention on the Rights of the Child (CRC, Art. 12&14).The International Covenant on Economic, Social and Cultural Rights was ratified by India in 1979. The Covenant specifically mentions the right to food in Article 11 and ”the fundamental right of everyone to be free from hunger”. States Parties shall take, individually and through international cooperation, the measures, including specific programmes, which are needed to fully realize these rights. The General Comment 12 (GC 12) of the UN Committee on Economic, Social and Cultural Rights clearly describes the right to adequate food, and spells out that – like any other human right – the right to food imposes three types or levels of obligations on States parties: the obligations to respect, to protect and to fulfil . GC 12 stresses the obligation to facilitate people’s access to resources such as land or other national resources to feed themselves and to well functioning distribution, processing and market systems. Moreover GC 12 recalls the obligation to provide the right directly for those who cannot access these resources for reasons beyond their control,
In year 2000, the 189 states of the UN General Assembly, including India, adopted the UN Millennium Declaration, a joint effort to reduce poverty and hunger by 50 percent before 2015. India is far from reaching this benchmark. The FAO Right to Food Guidelines, adopted by the FAO Council in 2004, reiterate the legally binding standards already existing for the right to food and focus on how states can fulfil their obligations under the human right to food by developing, implementing and monitoring their public policies, through benchmarking and increased accountability. The National Food Security Act can be a strong means to meet India’s obligations under the human right to food.
EMPOWERED GROUP OF MINISTERS, GOVERNMENT OF INDIA
DRAFT NATIONAL FOOD SECURITY BILL, 2010
Whereas the Government has several schemes for augmenting agricultural production and ensuring adequate availability of food for different segments, a Bill to provide a statutory framework to entitle families living below the poverty line to certain minimum quantities of foodgrains per month through targeted public distribution system.
Be it enacted by Parliament in the 60th year of the Republic of India, as follows:-
1. (1) This Act may be called the National Food Security Act, 2010.
(2) It extends to the whole of India.
Provided that the Central Government may, by notification in the Official Gazette, temporarily exclude all or any part of the territory of India from the operation of all or any of the provisions of this Act for reasons and in the manner as may be provided for under the Rules to be framed under section 21 of the Act.
(3) It shall come into force from such date as the Central Government by notification in the Official Gazette may appoint.
2. In this Act, unless the context otherwise requires,—
(a) “Allocation Norms” mean the quantity of foodgrains to be allocated by Central Government to States under Targeted Public Distribution System (TPDS) based on the provisions under section 3 and section 4(2) of the Act.
(b) “Below Poverty Line (BPL) Families” refer to the families identified as living below the poverty line notified from time to time by the Central Government.
(c) “Central Pool” means the stocks of foodgrains procured by Central and State Governments through minimum support price operations, domestic procurement and imports, and maintained for allocations under TPDS, OWS, calamity relief, etc and kept as reserves.
(d) “Central Food Security Fund” refers to the Fund to be set up by the Central Government to be utilized to compensate States as provided in section 6 (2) of the Act.
(e) “Fair Price Shops (FPS)” means a shop, which has been licensed to distribute essential commodities by an order issued under section 3 of the Essential Commodities Act, 1955, to the ration card holders under the Public Distribution System.
(f) “Food grains” means Rice, Wheat and Coarse grains.
(g) “Food Security” refers to the provision of the minimum quantity of foodgrains as prescribed under section 3 of the Act.
(h) “Food Security Allowance” means the amount of money to be paid by the concerned State Government to identified BPL families who could not be supplied entitled quantity of foodgrains under the provisions of this Act
(i) “Government” means the Central Government or the State Government as the case may be.
(j) “Indian citizens” refer to resident Indian citizens.
(k) “Local Authority” refers to any of the Panchayati Raj Institutions in rural areas and Urban Local Bodies in urban areas.
(l) “Other Welfare Schemes (OWS)” – refers to Government schemes (apart from TPDS) where foodgrains are also supplied as part of the scheme.
(m) “Poverty estimates” mean the percentage of population living below the poverty line at national and State levels as fixed by the Central Government from time to time.
(n) “Public Distribution System (PDS)” means the system for distribution of essential commodities to the ration cardholders through the fair price shops.
(o) “Ration Card” means a document issued under an order or authority of the State Government for the purchase of essential commodities under the Public Distribution System from the Fair Price Shop.
(p) “Rules” mean the rules notified by the Central Government and State Governments to facilitate compliance with the provisions of this Act.
(q) “Rural area” means any area in a State except those areas covered by any urban local body or a Cantonment Board established or constituted under any law for the time being in force.
(r) “Social Audit” means informed collective evaluation by citizens of the actions or decisions taken by any public servant or institution.
(s) “State” means a State or Union Territory of the Indian Union. The terms State Government and UT Administration are to be construed accordingly.
(t) “State Food Security Allowance Fund” means the dedicated fund to be set up by each State Government for expeditious payment of food security allowance to identified BPL families who could not be supplied entitled foodgrains under the provisions of this Act.
(u) “Targeted Public Distribution System (TPDS) ” means the system of supply of essential commodities to the BPL ration cardholders through the fair price shops
(v) “Vigilance Committee” refers to a Committee of Government functionaries and representatives of local stake-holders constituted to oversee working of fair price shops under TPDS.
PROVIDING FOOD SECURITY
3. Assured Food Security to BPL families
Every identified BPL family within the number fixed under section 4(2) of the Act will be entitled to receive every month from the Government 25 kg foodgrains such as rice and / or wheat at subsidized issue prices fixed from time to time in a manner as may be provided under the Rules.
Provided that the Government may make additional allocations of foodgrains depending upon availability and at such prices as may be prescribed.
4. Targeted Public Distribution System
(1) For ensuring supply of wheat and/or rice to identified BPL families as per their entitlement under section 3 of this Act, the Central Government shall allocate required quantity of wheat and/or rice from the central pool to State Governments under Targeted Public Distribution System (TPDS) for distribution to identified BPL families through the network of Fair Price Shops (FPS). For this purpose, TPDS will be implemented jointly by Central and State Governments as provided under Chapter III.
(2) Guidelines for identification of BPL families would be issued by the Central Government. The Central Government shall fix the number of the identified BPL families for each State for coverage under the Targeted Public Distribution System on the basis of poverty estimates notified by the Planning Commission of India and relevant census data of Registrar General of India taken as reference for the purpose from time to time.
(3) However, if a particular State Government is to extend its support of this kind to certain additional families in the State over and above that provided under section 3 , it may do so but only by separate identification of such additional families and with its own budgetary resources. While doing this, that State Government shall not be competent to reduce the scale of distribution of wheat and/or rice or food security allowance payable in lieu thereof to each identified BPL family as provided by the Government of India under the TPDS.
(4) Within the numerical ceiling fixed by the Central Government as per section 4(2), identification of eligible BPL families shall be done by the concerned State Governments through Gram Sabhas and Urban Local Bodies. Women shall be considered as the head of the household for the purpose of distribution of BPL Cards, unless there is no adult woman in the household. The list of BPL families shall be placed in the public domain and shall be displayed prominently in such manner as may be prescribed under the rules. The number of identified BPL families shall be reviewed through periodical surveys and the BPL lists shall also be subject to updating, in such manner as may be prescribed in the Rules.
(5) The State Governments may further assign, by notification, specific responsibilities for implementation of TPDS to the Panchayati Raj Institutions and Urban Local Bodies.
(6) The Central Government and State Governments shall take necessary steps within their respective areas of responsibility to ensure accountability and transparency in the PDS. All PDS-related records are to be placed in the public domain and open to public scrutiny.
5. Other Welfare Schemes
In addition to implementation of TPDS, Government may determine and implement Other Welfare Schemes to further enhance food security to the identified BPL families.
IMPLEMENTATION AND MONITORING AUTHORITIES, THEIR RESPONSIBILITIES
6. Responsibilities of Central Government
(1) The Central Government shall be responsible for i) procurement of wheat and rice for the central pool through its own central agencies and State Governments and their agencies, ii) allocation of wheat and rice to the States; iii) transportation of wheat and rice as per allocation to the State level designated depots;
(2) The Central Government shall allocate wheat and rice in accordance with the accepted number of families for each State. The Central Government, in an event of inability to deliver the required allocation for any State, shall compensate by funds to the State equivalent to the shortfall. A dedicated Central Food Security Fund will be set up for this purpose
7. Responsibilities of State Governments
(1) The State Governments shall be responsible for implementation and monitoring of schemes of various Ministries of Government of India as well as their own schemes for ensuring food security to the citizens in their respective States.
(2) Under the TPDS, it shall be the responsibility of the State Governments to identify, without inclusion or exclusion errors, eligible BPL families as per the number fixed by the Central Government as provided under clause 4 (2), review such status of each identified family at periodic intervals as may be prescribed in the Rules, take delivery of foodgrains from the Government of India, organize intra-state allocations up to the level of fair price shops, deliver the allocated foodgrains through their dedicated agencies at door-step to each fair price shop and ensure actual delivery/supply of the foodgrains to identified BPL families.
(3) For efficient operations of TPDS , each State Government shall create and maintain required scientific storage facilities at the district and block/taluka level, which should be able to accommodate allocations of foodgrains under TPDS of such quantities and for such periods as may be prescribed under the Rules.
(4) For the purposes of section 7 (3), State Governments shall suitably strengthen capacities of their Food & Civil Supplies Corporations/other designated agencies.
(5) The State Governments shall establish institutionalized licensing arrangements for fair price shops as per provisions made in the Rules framed hereinafter.
(6) Each authorized fair price shop licensee shall be free to sell or trade in additional essential commodities/articles other than the TPDS commodities.
(7) To make TPDS operations transparent and efficient, State Governments shall introduce use of information and communication technologies in all TPDS transactions.
(8) The concerned State Government shall also be responsible for making payment of food security allowance to identified BPL families in case of failure to supply in any month the entitled quantities of foodgrains to such families. Each State/Union Territory shall set up a dedicated Food Security Allowance Fund for the purpose.
8. Responsibilities of local authorities
For implementing different schemes of Central Ministries and State Governments formulated to implement provisions of this Act, the local authorities i.e. Panchayati Raj Institutions in rural areas and Urban local bodies in urban areas will be responsible for discharging such duties/responsibilities as may be assigned by notification to them by the concerned State Governments.
9. Disbursement of food security allowance
The concerned State Governments shall make payment of food security allowance to the identified BPL families as provided under section 7(8) in such manner as may be prescribed in the Rules.
10. Vigilance Committees
For ensuring transparency in functioning of TPDS and accountability of the functionaries, every State Government shall set up a Vigilance Committee for each fair price shop. Composition of the Vigilance Committee will be as provided under the Rules. The Vigilance Committees shall issue in the format prescribed under the Rules, monthly certification of confirmation of delivery of allocated foodgrains to the FPS and their subsequent distribution to identified BPL families as per their entitlement.
11. Redressal of grievances
For expeditious and effective redressal of grievances of identified BPL families with regard to distribution of entitled foodgrains under TPDS as provided under this Act, each State Government shall set up effective institutional mechanisms at the taluka / tehsil / block level and an appellate mechanism at the District level as may be prescribed under the Rules.
12. Social audit
Periodic social audits of functioning of fair prices shops/TPDS and OWS shall be conducted and reports of such social audit shall be placed in the public domain as prescribed in the Rules.
Establishment of Food Security fund and food security Allowance Funds
13. Central Food Security Fund
The Central Government shall set up, by notification, a Central Food Security Fund for payment of compensation to State Governments in the event of failure of the Central Government to make available the required quantity of foodgrains to State Governments in respect of BPL families as provided in section 3 of the Act.
14. State Food Security Allowance Fund
Each State Government shall set up, by notification, a dedicated State Food Security Allowance Fund for expeditious payment of food security allowance to identified BPL families.
15. Maintenance and Audit of accounts
(1) The accounts of the Central Food Security Fund shall be maintained in such form and in such manner as may be prescribed by the Central Government.
(2) The accounts of the Central Food Security Fund shall be audited by the Comptroller & Auditor-General of India.
(3) The accounts of the State Food Security Allowance Fund shall be maintained in such form and in such manner as may be prescribed by the State Government.
(4) The Central Government may, in consultation with the Comptroller and Auditor General of India, prescribe appropriate arrangements for audits of the State Food Security Allowance Fund.
16. Penalties for non-compliance
Subject to the provisions of section 20, whosoever contravenes the provisions of this Act shall be liable for penalties as provided under Section 7 of the Essential Commodities Act, 1955. Notwithstanding anything contained in any Act for the time being in force, offences relating to PDS shall be cognizable.
17. Power to delegate
(1) The Central Government may, by notification, direct that the powers exercisable by it (excluding the power to make rules) may, in such circumstances and subject to such conditions and limitations, be exercisable also by the State Government or such officer subordinate to the Central Government or the State Government as it may specify in such notification.
(2) The State Government may, by notification, direct that the powers exercisable by it (excluding the power to make rules) may, in such circumstances and subject to such conditions and limitations, be exercisable also by such officer subordinate to it as it may specify in such notification.
18. Power of Central Government to give directions
The Central Government may give such directions, as it may consider necessary, to the State Governments for the effective implementation of the provisions of this Act. It shall be mandatory for the State Governments to comply with such directions.
19. Act to have overriding effect
The provisions of this Act or the Schemes made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of such law.
20. Protection of action taken in good faith
No suit, prosecution or other legal proceedings shall lie against any person who is, or who is deemed to be, a public servant within the meaning of section 21 of the Indian Penal Code in respect of anything which is in good faith done or intended to be done under this Act or Rules or Schemes made thereunder.
21. Power of Central Government to make rules
(1) The Central Government Ministries may by notification and subject to the condition of previous publication, make rules to carry out the provisions of this Act.
(2) Every rule made by the Central Government under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, (while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; provided, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule).
22. Power of State Government to make rules
(1) The State Governments may, by notification and subject to the condition of previous publication, and consistent with this Act and the rules made by the Central Government, make rules to carry out provisions of this Act.
(2) Every rule or Scheme made by the State Government under this Act shall, as soon as may be after it is made, be laid before each House of the State Legislature where there are two Houses, and where there is one House of the State Legislature, before that House.
23. Power to remove difficulties
(1) If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order published in the Official Gazette, make such provisions, not inconsistent with the provisions of this Act, as appear to it to be necessary or expedient for removing the difficulty.
(2) Every order made under this section shall be laid, as soon as may be after it is made, before each House of Parliament.
NATIONAL ADVISORY COUNCIL, GOVERNMENT OF INDIA
23rd October, 2010
Sonia Gandhi, Head of National Advisory Council
1. The Sixth meeting of the National Advisory Council was chaired by Smt. Sonia Gandhi on 23rd October, 2010 at 2 Motilal Nehru Place, New Delhi.
2. Members who attended the meeting were Prof. M.S. Swaminathan, MP, Dr. Ram Dayal Munda, MP, Prof Narendra Jadhav, Prof. Pramod Tandon, Dr. Jean Dreze, Ms. Aruna Roy, Shri Madhav Gadgil, Shri N.C. Saxena, Dr. A.K. Shiva Kumar, Shri Deep Joshi, Ms. Farah Naqvi, Shri Harsh Mander and Ms. Anu Aga.
3. NAC discussed in detail the proposal of the Working Group on National Food Security Bill. Recognizing the need to address the problems of hunger and malnutrition, the NAC finalised its recommendations as follows:
• Legal entitlements to subsidised foodgrains should be extended to at least 75% of the country’s population – 90% in rural areas and 50% in urban areas.
• The priority households (46% in rural areas and 28% in urban areas) should have a monthly entitlement of 35 kgs (equivalent to 7 kgs. per person) at a subsidised price of Re. 1 per kg for millets, Rs. 2 for wheat and Rs.3 for rice. Rural coverage can be adjusted state-wise based on the Planning Commission’s 2004-5 poverty estimates.
• The general households (44% in rural areas and 22% in urban areas) should have a monthly entitlement of 20 kgs (equivalent to 4 kgs. per person) at a price not exceeding 50% of the current Minimum Support Price for millets, wheat and rice.
• The minimum coverage and entitlements as well as prices should remain unchanged at least until the end of the XII Five Year plan.
• Government of India should specify the criteria for categorisation of population into priority and general households.
• The NAC recommends that in the first phase, food entitlements should be extended to 85% of the rural population and 40% of the urban population. Full coverage of food entitlements as enumerated above should be extended to all by March 31, 2014.
• Other important components of the food security bill recommended by the NAC include legal entitlements for child and maternal nutrition (including nutrition programmes for pre-school children, pregnant and nursing mothers, maternity benefits and mid-day meals for school children) as well as for community kitchens and programmes for feeding destitute and vulnerable groups. For the new components programmes will need to be developed as soon as possible.
• For further advancing food and nutritional security, the NAC has recommended as enabling provisions, among other things, measures for revitalizing agriculture, diversifying the commodities available under the Public Distribution System (PDS), ensuring universal access to safe water and proper sanitation, universalizing primary health care, extending nutrition and health support to adolescent girls, strengthening the school health programme, the programme for Vitamin A, iodine and iron supplementation and the national programme for crèches.
• An essential aspect of the PDS reform should be to plug leakages and enhance accountability. The NAC is examining proposals for PDS reforms including (i) decentralised procurement and storage; (ii) de-privatization of PDS outlets; (iii) doorstep delivery of grain to PDS outlets; (iv) revision of PDS commissions; (v) Application of ICT including end-to-end computerization of the PDS (vi) full transparency of records (including pro-active disclosure, transaction-based MIS, right of immediate inspection, and mandatory social audits) (viii) use of Smart Cards and biometrics subject to successful pilots.
• The NAC Working Group on Food Security will draft the National Food Security Bill for consideration of the Council.
4. The NAC also discussed the practice of manual scavenging in the country and decided to recommend to the government as follows:
• The NAC is deeply distressed to observe that the shameful practice of manual scavenging persists in India, despite being outlawed. This practice involves entrapping women, men and even children only because of the accident of their birth, into a humiliating vocation of gathering human excreta from individual or community dry toilets with bare hands, brooms or metal scrapers. It is intolerable that this endures, and is the worst surviving symbol of untouchability. The persistence of dry latrines in various parts of the country violates of human dignity, the law and articles 14, 17, 21 and 23 of the Constitution.
• In 1993, Parliament passed the Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, which declared the employment of scavengers or the construction of dry (non-flush) latrines to be an offence punishable with imprisonment for up to one year and a fine of two thousand rupees. But central, state and local governments have been very weak in implementing this law, and almost no one has been punished under this law in 17 years. Local bodies themselves routinely run dry toilets, and employ people of specific castes to clean these manually.
• One basic problem so far is that the effort has been viewed by governments more as an issue of sanitation, than of issue of human dignity as guaranteed to all citizens in the Preamble of the Constitution.
• The NAC urges the central government to coordinate with all state, local governments and also central government departments including the Railways, to ensure that this practice is fully abolished latest by the end of the 11th Plan period. This would require a) new survey in every state and UT, with wide public involvement, of remaining dry latrines and manual scavengers; b) demolition of all dry latrines; c) psycho-social and livelihood rehabilitation in modern marketable skills of all manual scavengers and their families; and d) special programme for education, including higher education and computer education of all children of manual scavengers. The Ministry of Social Justice should formulate 100% centrally sponsored scheme to support the rehabilitation initiatives. The law also needs to be amended to ensure shaper definitions of manual scavenging, and accountability of public officials who employ, or fail to prevent, manual scavenging.
• The NAC recommends that the implementation of this law should be monitored at the highest levels of the central and state governments. The NAC will also monitor on a quarterly basis the progress in abolition of manual scavenging, in order to ensure the final end of this most degrading practice of caste discrimination.