I was rather taken aback to read the working draft of the Right to Food Act drafted by Jean. These are some comments:
1. A working draft ought to be a preliminary outcome of a consultation so that the framework of the proposed law becomes clear and then the nitty-gritty fine-tuning can be done subsequently. It is generally not a good idea to come out with a working draft out of the blue because participants in the Right to Food Campaign are then faced with a framework which they may not understand and then be forced to operate within the straight jacket confines of that working draft.
2. Since substantial progress has been made in the Right to Food case in the Supreme Court it may be difficult for the Central Government to enact legislation to substantially cut into those existing rights. This is not to say, that they may not try to do so.
3. Where substantial rights have been achieved through court decisions the aim of a draft would be, no doubt, to convert those judge made rights into statutory provisions. The real challenge however, lies not in this, but in ensuring that the enforceability provisions are real, substantial and easy to operate. Thus the real effort lies in deciding what kind of enforcing mechanism is needed in the law.
4. In this context if one looks at clause 16 titled "Grievance Redressal", one can see that the provisions are most unsatisfactory. It is left to the state governments to determine an "appropriate grievance redressal mechanism". That's it. I cannot stress how important it is, before any working draft is made, to have a real consultation with concerned groups about the mechanism they want. One suggestion has been made to have Commissioners appointed at the Centre and states along the lines of RTI. However, these Commissioners under RTI have the status of Supreme Court / High Court judges and it is an open question as to whether the government is going to agree to such a formal arrangement. This is one of the most important areas to focus on while drafting the statute. Secondly, are the present Commissioners appointed under the Supreme Court orders and struggle organizations and NGOs associated with the RTF movement to play any role in the grievance redressal mechanism? Or are we leaving everything to Government? More on grievance redressal towards the end.
5. I now deal with clause 14 titled "Food and Nutrition Commissioners". We have today a rather extraordinary arrangement which has worked rather well with all its ups and downs, where the Commissioners not only monitor and advise but also direct officials to perform their duty. Now if one compares the present situation with clause 14, the status of the Commissioners are reduced to "monitoring" and "advising," which is a rather pathetic situation.
6. If one goes to the beginning of the working draft now and looks at clause 3 which is titled "Nutrition Monitoring", though nobody can disagree that this ought to be done, the main battle we have fought for all these years is to determine the percentage of the people below the poverty line so as to enable 70% of the population (at least) to get a BPL card and get all the benefits. There is no point in a Right to Food Act if we must follow the Central Government's stupid ceiling of 30% of the population as being below the poverty line. Make no mistake about it – this is the centre of the battle for rights. On the nutrition front we already know that more than 70% of the population receive less than the minimum nutrition. A nutrition survey may be good from the academic point of view but if one were to compare the need for a Commission to correct the poverty line with that of a nutrition Commission, I would go for the former. I am not sure whether Jean's formulation in clause 23 deals with this.
7. If one then studies clause 5 dealing with children and if one looks at clause 8 the phrase used is "a hot, cooked, nutritious midday meal". Now, one of the main battles we have fought over years in the court is the exclusion of contractors. It is quite possible for a contractor to set up a factory and provide hundreds of schools with a hot, cooked, nutritious midday meal. The crucial phrase missing which is in the Supreme Court order is to the effect that the meal has to be locally prepared by Mahila Mandals etc.
8. Continuing with this and shifting the emphasis to micronutrients, it must be remembered that we have struggled against the micronutrient lobby for many years. Only recently we succeeded in getting a Supreme Court order which insisted on locally provided micronutrients. This order prevented the micronutrient lobby from getting in to mass provide micronutrient fortified biscuits and snacks. In clause 5 therefore that ought to be a clause to this effect which will effectively sideline the powerful micronutrient lobby.
9. Turning now to clause 8 which deals with the Public Distribution System, the suggestions made by the PDS groups repeatedly over the years, seems to be not recognized. The demand that the ration shops be nationalized and taken away from the private dealers and be handed over to institutions of local self governance, that Vigilance Committees be reconstituted to remove the MLA and the corrupt Food officials and include civil society organizations, the enforcement of the criminal offence provisions for breach of the PDS control order so that ration shop dealers and Food Department officials can be criminally prosecuted as under the Essential Commodities Act, are conspicuously missing from the draft.
10. Perusing clause 45 which deals with the powers of the Gram Sabha, the language used is most limiting. B.D. Sharma and his activists of the Bharat Jan Andolan held several meetings with us over the years to discuss the formulation for an application to be filed in the Supreme Court and in those meetings they made simple but important suggestions on how the Gram Sabha meetings are to be held, resolutions passed and recorded and then mandatorily implemented without any veto from state government officials. This is entirely in tune with the Constitutional amendment empowering the Gram Sabhas as well as the various orders of the Supreme Court in the RTF case.
11. The Statements of Objects and Reasons refers to the protection of the rights of all "citizens". This may not be appropriate as Article 21 of the Constitution covers all persons within territory of India and not merely all citizens. In the context of the Right to Food, any person deprived of adequate food has a right to food. Take for example refugees in India who are not permitted to work and live in a very precarious situation. We have moved an application in the Supreme Court for refugees to be granted a BPL card. Similarly, special provisions in the Act and Rules will be needed for homeless people, migrant workers and the like.
12. Perhaps a look may be had at the Voluntary Guidelines of the FAO of the United Nations adopted in 2005 for certain phrases so that the Indian law dovetails with the international scenario. These Guidelines cover a full range of actions to be considered by governments at the national level in order to build an enabling environment for people to feed themselves in dignity and to establish appropriate safety nets for those who are unable to do so. The Millennium Development Goals (though we have differences with this approach) has committed Government of India to "halve the proportion of people to suffer from hunger" between 2005 and 2015. The language used by the Rome declaration includes "the fundamental right of everyone to be free from hunger". The World Food Summit Plan of Action require governments "to give particular attention to implementation and full and progressive realization of the right to adequate food as a means of achieving food security for all". The underlined phrase is very important because it commits governments to progressively increase budgets and allocations to combat hunger.
13. We have, in the draft circulated, perhaps consciously, omitted the phrase Food Sovereignty. This is politically a very important phrase which has ramifications for the right to land and resources. In the context of land reforms and amendments in the Land Acquisition Act, we are likely to be turned into a nation of beggars where our lands will be taken, our forests appropriated, our water privatized, our seeds patented and our biodiversity pilfered and then we will beg for 100 days of NREGA and 35 kgs of PDS. Even if we, in the RTF campaign, choose to compromise and make a draft because we believe it is important to seize the moment even if it involves concessions from the movements side, we must be fair and transparent with all sections of the peoples movements who are directly or indirectly connected with the Right to Food.
14. This is a very difficult period. The UPA Government has undoubtedly massively increased the budgetary allocations for ICDS, the midday meal and NAREGA. Despite internal opposition, the Central Government did things which no other government has ever done. This is why it is legitimate, if the RTF campaign is inclined to so do, to collaborate with this Government on issues relating to RTF.
15. Nevertheless, it is very important to recognize that the same government now proposes to enact land reform and land acquisition legislation which will result in the displacement of millions of people. Pro globalization economic reforms that will affect the working people are on the agenda. We now do not have the CPM and CPI to raise these critical issues and to prevent the implementation of these policies in the Central Government. Thus, while we cooperate in the drafting of legislation on the Right to Food, we must maintain critical mobilization against the UPA on its land, forests and water policies. Mining is now cleared for massive expansions in forest and tribal areas. The right to food of indigenous communities is being wiped out.
16. I say this because there is thinking in some circles that collaboration in the drafting of a statute must necessarily mean toning down criticism of government policies or moderating public interest litigation against governments. Both can go side by side. And those who do the latter ought not to feel out of place for advocating a more strident approach.
17. Issues like the minimum support price and subsidies for farmers which are the concerns of the farmers' groups are omitted from this draft. Perhaps it is necessary, I do not know. The Voluntary Guidelines however, speak of the right of "farmers, fishers, foresters, and other food producers to earn a fair return from their labour, capital and management." The Voluntary Guidelines also speak of the rights of the poor to participate in economic policy decisions. The state should "adopt policies that create conditions that encourage stable employment particularly in rural areas."
18. In the Right to Food Campaign we have traditionally dealt with government programmes that have the effect of alleviating the suffering of the working people. We have not sufficiently focused on the causes of this suffering. We have not seriously campaigned against land reforms. We have not adequately addressed the changes in the Land Acquisition Act. We could not, until very recently, take a stand against Genetically Modified Organisms. We have not attacked the seeds legislation. Other organizations that have worked on farmers' rights are also concerned about the RTF Act. At this stage it is imperative, even if in the ultimate analysis we may make huge compromises, to engage with all these groups and not go it alone by some arbitrary working drafts that sharpen our isolation and ultimately make us vulnerable to the state.
19. The Voluntary Guidelines laid down that the "states should respect and protect the rights of individuals with respect to resources such as land, water, forests, fisheries and livestock without any discrimination…Special attention may be given to indigenous people."
20. In addition to some sort of a Commissioner system for grievance redressal, it may also be interesting to look at the possibility of using the provision in the Human Rights Act which requires a setting up of Human Rights Courts at the district level. Perhaps for the implementation of the RTF Act, the District Courts may be designated as Human Rights Courts and persons aggrieved could take a local lawyer and go to court directly for a breach of the provisions of the Act. This would enable the focus of litigation to shift from the Supreme Court and the High Courts to the District Courts.
21. Dalits and the Right to Food is conspicuously missing from the draft. Here we have won significant orders from the Supreme Court giving Dalits priority in the setting up of Aanganwadis and in the recruitment of cooks and helpers in ICDS. Discrimination against Dalit children in the midday meal is extensively reported and can be corrected by clear statutory provisions punishing practices of untouchability and discrimination in the government nutrition programmes.
22. I want to make one thing clear before I end. I am not one who takes the stand "all or nothing". If the UPA Government is only keen in enacting legislation on schemes that's fine. If the Government is only interested in a law on PDS that's O.K. But whatever we do we must realize that the consequences of a faulty draft are enormous for civil society. Secondly, whatever compromises we have decided to make must be discussed in a frank and transparent manner.
Note: To post your contents (press release, messages, articles, write-up, issues for public discussions and documentary video) at Jharkhand Forum websites, simply send it to Jharkhand@yahoogroups.com. No sign-up required.