The Directive Principles of State Policy (DPSP) are constitutional directives given to the State to achieve transformative goals but aren’t enforceable by any court, unlike the constitutionally guaranteed Fundamental Rights. There are instances, however, when the judiciary has preferred to enable socio-economic aspirations specified under the DPSP over a narrow interpretation of Fundamental Rights, such as in the Kesavananda Bharati case, 1973, or when DPSPs were exalted to give them the substance of a Fundamental Right, such as over the Right to Food.
Judiciary & Right to Food
A group of civil society organisations in Rajasthan filed a writ petition in the Supreme Court in 2001 (PUCL vs Union of India and Others) requesting the release of grain stocks to avoid mass hunger and death. The government claimed that eight hunger-relief programmes were in operation, but the petitioners countered that they weren’t implemented well enough to serve the purpose.
The campaign for the Right to Food had two main objectives. The first was to recognise it as an enforceable right, and to demonstrate how it arose from the directive principles but went to the core of the Constitution itself – Fundamental Rights. The second was to bring about reformative action to ensure that it was carried out in a progressive manner. The petitioners’ main goal was to establish that the Right to Food was protected under the Right to Life (Article 21).
When it became a matter of people’s lives, the judiciary was determined to view the DPSP in the context of Fundamental Rights. Since the first PIL was filed in the Right to Food campaign, the Supreme Court and various High Courts have issued 74 interim orders. Several independent institutions were also established by the Supreme Court, including a Commission to keep track of all interim orders issued by the court in this case and 12 commissions at the state level to be advisers to the Commissioner’s Office.
Following the midday meals decision in 2001, the Supreme Court was kept informed and was periodically updated on the status of its implementation. The court also remained involved in the programme’s finer details, such as ensuring that quality standards were fully implemented and that discrimination against Dalit cooks did not obstruct the scheme’s effective implementation.
The court required that these programmes, such as midday meals or the opening of Anganwadis in all settlements, be implemented within a certain time frame. Orders requiring the government to make the list of Public Distribution System (PDS) beneficiaries available for public review are examples of the court insisting on accountability and transparency from the government. The judiciary chose a proactive approach to ensuring food as a right.
Judiciary during Covid-19
Migrant workers in the unorganised sector are a vulnerable section as they do jobs with barely any social security, far from their homes. Often, being daily wage workers, they face hazardous working conditions, extremely low wages and poor living conditions. The economy almost came to a complete halt with the nationwide Covid-19 lockdown last year. During this period, several issues of fundamental rights surfaced and PILs were filed over the availability of food to stranded workers, wages for those in the unorganised sectors, transport facilities for migrants returning home, etc.
While the courts heard some of these PILs on an urgent basis, despite the long lockdown, all judges did not resume hearing cases via digital platforms. Thus, there were delays in hearing many cases. Justice A P Shah, former Chief Justice of the Madras and Delhi High Courts, in an interview, critiqued the priorities of the Supreme Court as being misplaced. For instance, he pointed out the contrast between several petitions on the rights of migrant workers not being heard as urgent matters while a bail petition of journalist Arnab Goswami was heard within several hours.
The Supreme Court may thus be seen to have become less sensitive to the rights of the marginalised and as having gone back on Article 21. This Article was earlier given a wide interpretation by the court, broadening the definition of life to not just include “mere animal existence” but the right to live with human dignity, which includes the right to livelihood and shelter. Activists filed petitions that sought immediate payment of minimum wages to workers suffering due to the lockdown. To this, the court said that this was a policy issue and was the prerogative of the government. The government contended that free food was being provided to the poor. Chief Justice S A Bobde asked, “If they are being provided meals, then why do they need money for meals?”
After being stranded for several weeks without jobs, shelter and, in many cases, food, the migrant workers were asked by the government to pay transport fare if they wished to go back to their villages. The Supreme Court should have taken cognisance of their plight.
Does the judiciary continue to be an enabler of socio-economic rights? Some high courts like the Odisha High Court were responsive and directed the state to make sure that the identities of Covid-19-positive individuals, for instance, were safeguarded.
We observe that marginalised women are a section that’s doubly discriminated against. During the lockdown, pregnant women walking long distances due to the lack of transport facilities, and starvation and death due to lack of access to primary healthcare weren’t rare episodes. Restricted access to contraception and healthcare is seen to result in an additional 2.38 million unintended pregnancies, 679,864 child births, 1.45 million abortions and 1,743 maternal deaths. These significant issues have been ignored by both the State and the judiciary. Apart from a few relief policies like transfer of Rs 500 to women’s Jan Dhan accounts under the Garib Kalyan Scheme, relief measures have hardly taken notice of the severe conditions faced by women.
The core question during the Right to Food campaign and during the Covid-19 crisis was the extent and purpose of the courts’ interventions. The judiciary’s promptness in acting during the Right to Food campaign was a hallmark feature. Orders were released on time, which kept the executive in check and helped to avoid red tape by enforcing deadlines. The court did not wait to be nudged, rather it put itself out there to keep the government accountable.
Socio-economic rights such as food and employment have for a long time been covered under government policies, but the Right to Food has not only set a legal precedent on the justiciability of socio-economic rights, it is also an example of the court defending these rights by requiring the government to stand by its own promises. When the courts choose to leave the issue of timely wage payment to poor daily wage workers under the jurisdiction of the government or remain silent in the face of lax policy execution and neglect of priority sections, however, they allow themselves to be seen as being indifferent to the systemic violence that befalls millions of vulnerable citizens.
In the wake of the pandemic, cracks in the bureaucratic system, such as that in the PDS and healthcare, surfaced, but the judiciary did not take cognisance of the issue. A suo moto intervention from the judiciary would have taken a rights-based route to impel the executive to exhibit accountability. As a nation that still strives to accomplish fundamental human rights on issues like hunger and malnutrition, we require a judicial system that is proactive as justice delayed is justice denied.
(The writer is a public policy researcher)