Indian
Parliament took a momentous step towards providing a legislative
framework for realisation of the constitutional right to food when
its two Houses passed the National Food Security Bill 2013. Yet, this
transformative moment has been met with hysteric opposition in the
media and the financial market. It has been called the 'biggest mistake India might have made till date'. As pointed out in the
previous post, the
Sensex dropped 590 points the day after the Lok Sabha's assent. The
Credit rating agency, Moody's has also termed the legislation “credit negative”. Similar disapproval has been voiced by other
commentators as well.
While
the concerns over additional governmental expenditure at a time when
India is confronted with massive current account deficit and a
declining rupee cannot be brushed aside, there is need for a
dispassionate and clear-headed analysis of what the Food Security
Bill attempts to do and its likely impact on governmental
expenditure.
As
Kotwal, Murugkar and Ramaswami have argued, many critics of the Food
Security Legislation have overestimated its cost by a not very
insignificant margin. They refute the widely-cited estimate of Surjit
Bhalla who had argued in his column in the Indian Express that the
Bill will cost 3% of India's GDP. These scholars on the other hand
argue that the subsidy increase as a result of the Bill will be
firmly within 1% of GDP.
This
can be surmised from the fact that we already have a gigantic network
of procurement and storage that runs the existing PDS system. Anil
Padmanabhan explains this further in his column, Five Myths About the Food Security Bill, where he argues that
the incremental procurement and associated expenditure would be
comparatively insubstantial in view of the our pre-existing
procurement network. To quote Padmanabhan:
"it
is claimed that the Food Security Bill would put a massive burden on
an already overburdened exchequer as the government would have to
procure additional food grain. Not only would they have to find more
storage but also spend extra to procure the grain. Yes, it is fact
that the procurement will have to be 62 million tonnes (mt) a year.
But guess what, the country
procured 72 mt of foodgrain in 2012-13. And in case you wonder, in
the previous year procurement was 63.38 mt, with the existing
infrastructure at its disposal.”
Admittedly,
1% of the GDP is not a trifling sum. However, it would be
analytically untenable to cast the blame for our burgeoning fiscal
deficit on the food security legislation alone. As Debraj Ray argues
in his blogpost, Monkeying with the Rupee,
“The
defense budget of the Government of India is double the projected
expenditures of the Food Security Bill. For 2013-2014, a "modest
increase" of 5.3% (following on somewhat less modest increases
of 17.6% and 11.5% in the two preceding years) brings us to a sum of
over 2 trillion rupees. There's more: the foreign exchange component
of expenditure on defense is orders of magnitude higher than the
corresponding component for food. Compare this to the FSB, which will
spend half the military budget, and all of it on domestic
production and distribution...just the
total cost of subsidizing
fuel use last financial year was 1.6 trillion rupees,
substantially higher than the estimated expenditure under FSB.”
Therefore,
critics of the Food Security Bill would do well to move away from their
myopic and exaggerated focus on the financial implications of the
Food Security Bill. As the Brazilian Supreme Court reminded its
government in the context of right to health in S.T.F. Recurso
Extraordinario [Extraordinary Remedy] no. 271.286-8:
“Between
the protection of the inviolable rights to life and health, which are
subjective inalienable rights guaranteed to everyone by the
Constitution itself, and the upholding, against this fundamental
perogative, of a financial and secondary interest of the State,
ethical-juridical reasons compel only one possible solution: that
which furthers the respect of life and human health”.
This
is not to mean that diversion of funds and leakages that have become
endemic are insignificant issues. Yet these objections do not merit
an abandonment of the legal entitlement approach towards starvation
and malnutrition. Such criticisms ignore
that the Supreme Court's intervention in the PUCL case and its
recognition of a constitutional entitlement has led to remarkable
improvements in reduction in leakges states like Tamil Nadu, Odisha
and Chhattisgarh. For instance, JNU
Professor, Himanshu wrote in his column in Mint:
“The
latest round of consumption expenditure for the year 2011-12 was
released recently. Data from the survey shows the extent of leakage
for rice and wheat, taken together, is 35% only compared with 55% in
2004-05 using the same method. Thus, within a span of seven years the
reforms introduced by states have led to a significant reduction in
leakages. What is also worth noting is not only the curbing of
leakages but also the expansion in access to PDS. Only 23% households
purchased cereals in 2004-05 and 39% in 2009-10. This number rose to
44.5% in 2011-12. In 2011-12, 50% of rural and 31% of urban
population was purchasing cereal from PDS.”
Therefore,
in spite of its limitations, especially in view of India's deficient
legal infrastructure, legal entitlement approach has shown that it
can expedite deep-rooted and systemic reforms in the administration
of PDS in India and turn the right to food from a mere constitutional
aspiration into a reality.
To
quote Shoma Choudhary of Tehelka:
“The
real significance of this Bill, however, is that in every democracy,
the starting point must always be an articulation of rights and
intention. A legislation itself can never be a magic wand: but the
syllables of idealism rightfully belong to it. Enacting the Abolition
of Untouchability did not mean the curse of caste disappeared
overnight. Nor will the Right to Education ensure every child turns
into a scholar in a day. Nor indeed can the Right to Information
ensure governments will reveal all their dark truths. What
legislations do is set forces into motion. They might take decades to
mature but they create the correct moral framework. They give
citizens the right to demand.”
Nonetheless,
it would be a mistake to see the gains of the legislation as merely
symbolic. It would be pertinent in this regard to remind ourselves of
views of Philip Alston, John Norton
Pomeroy Professor of Law at NYU and former United Nations Special
Rapporteur on Extrajudicial, Summary or Arbitrary executions, who
claimed in his book, Human Rights and Development that:
“creating
a legal right to food is one way of creating a focus for public
action in response to India’s nutrition emergency, and for
increasing the poor and underprivileged’s sense of entitlement to
state action on nutrition. Moreover, the more politicized the
deprived are about their right to food, the more vigilant they will
be in policing the various state nutrition schemes that already
exist, and in combating the endemic corruption that diminishes the
effectiveness of existing measures.”
From that vantage point, the onus lies on commentators to shift their gaze from a reductionist opposition to the National Food Security Bill to its nuts and bolts, which even the most ardent supporters of the Bill admit, leave considerable room for improvement.
In
this post, we would like to draw attention to the following main
areas:
a)
Identification of Beneficiaries: The most important flaw of the Bill
is that it does not really create enforceable entitlements for
anyone, because the selection of eligible households is left to the
discretion of the government. Instead of specifying the exclusion
criteria or making it mandatory for state governments to specify
exclusion criteria and deeming everyone else eligible, section 15
leaves the identification criteria for the State Governments to
evolve. As a result, the actual number of rights holder would remain
a contention question.
As
Nitin Sethi reported:
“When
the Bill was still in works, the answer to this was rather simple.
The government would get a new BPL census done through the states –
the Socio Economic Caste Census (SECC). The census would measure
people for seven basic ‘deprivations’ and give a score to
individuals on the basis of where they stand on this count. The
Centre would decide a cut off score, and anyone above that score
across the country would be eligible for the subsidised food grains.
The UPA then decided against using the SECC for the food bill and
informed the states that they were – in a throw back to the
targeted PDS era - yet again imposing state-specific cut offs based
on this country-wide cap and updated State-specific poverty lines.
The centre would provide subsidy for the numbers it had set and the
States could choose who they wanted to give the grains to by their
own criteria and design.”
b)
Use of Aadhaar: Section 18 (2) (d) allow “leveraging 'Aadhaar' for
unique identification” for the purpose of this legislation. In view
of the cloud of uncertainty over the UID Project for the lack of a
statutory mandate and its implications on the right to privacy,
linking entitlements under the law with Aadhaar may not be advisable.
Moreover, as Reetika Khera has shown, other less expansive technological solutions like smart cards , bank payments, etc. have
been remarkably successful in minimising leakages in states like
Chattisgarh. Therefore, Aadhaar may not be necessary for the
successful implementation of this statute.
c)
Grievance Redressal Mechanisms and Civil Society Participation:
Active involvement of court-appointed Commissioners and civil society
organisations, notably, the Right to Food Campaign, was critical in
shaping the success and direction of review by Supreme Court of
executive policies in the PUCL case. Indeed, Lauren Birchfield and
Jessica Corsi have noted in their work, Between Starvation and Globalisation: Realizing the Right to Food in India [31 Mich. J Int'lL. 691]:
“In
terms of defining, unpacking, and explicating the right to food, the
Campaign and Commission have been key contributors to the development
of the PUCL litigation. Gains made in the struggle to define the
right to food are attributable to the constant involvement of civil
society and to the agency awarded to directly affected persons and
groups. Incorporating the people whose rights have been denied has
allowed for proper identification of immediate needs and systemic
deprivations and has resulted in the construction and authorization
of appropriate and effective schemes. Most importantly, perhaps,
Campaign and Commission involvement has integrated the public into
the knowledge base supporting the right to food, empowering
individuals to both identify their rights and to determine how those
rights should be realized.”
Therefore,
the grievance redressal mechanism contemplated under the legislation
must be receptive to intervention and feedback by civil society
organisations. While Section 22 does provide for non-official
representation in the State Food Commissions, more needs to be done
in carving out a genuine space for civil society organisations.
d)
Costs-Sharing: Given that many states would have to incur substantial
expenditure in expanding the existing distribution, transportation and
storage networks, it would have been prudent for the statute to
resolve the contentious matter of sharing of these costs. Past
experience with NREGA indicates that this issue can become
politically explosive and hence, categorical legislative imperatives
would have been useful.
None
of this calls for neglect of the financial implications of the Food
Security Bill. However, we submit that dismissing the constitutional
entitlement to food on the ground of fiscal deficit is ethically,
politically and economically untenable. Moreover, criticisms of this
legislation as a politically motivated exercise ignores the fact that
the government and the Parliament are not only expected but also
obliged to respond to pressure from the grassroots. Instead of
bemoaning the Bill as political, perhaps it is time to celebrate it
as a symbol of a renewed social compact between the state and its
citizenry.
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