Saturday, July 11, 2009

The Right to Food (and Implementation?) Act

There is much discussion surrounding the yet to be revealed Right to Food Act. Pragya Singh of Outlook India is not alone in her assessment that the Act "is being crafted as the centrepiece of the UPA's second innings." Singh's article then goes on to look at the debates concerning what the act will ultimately contain. As her article alludes I think there is some cautious optimism about the development of this Act by those who have worked on the Right to Food case and on this issue more generally, but also a very real fear about it. Those fears revolve around, first, whether the legislation will weaken the substance of the right, and second, whether the enforcement mechanisms that go along with any act will be weaker than those currently set-up by the Supreme Court in the guise of the Right to Food Commissioners and regular monitoring of the case by the Court itself. Jean Dreze has this recent opinion piece in Outlook that states what he thinks should be the minimum in any such Right to Food Act, which goes to the first substance point.

At first blush the story of this Act looks similar to the development of the Right to Information Act: committed activists rally around a cause, succeed in getting a positive Supreme Court order (or series of orders), and then use the traction and precedent gained from those orders, as well as a great deal of independent organizing efforts, to consolidate (and advance) their gains in legislation. Indeed, one could even tell this story - to some extent - about the development and passage of the National Rural Employment Guarantee Act at the beginning of the UPA's "first inning" (arguably its "centrepiece" at that time). As part of the Right to Food case, the Supreme Court had ordered that the government implement its then existing work-for-food scheme. Many of the same activists involved in the Right to Food Case then pushed to get NREGA drafted and passed, and have worked to implement it. The Supreme Court has since seemed to accept that the passage of NREGS fulfilled its orders concerning the work scheme in the Right to Food case and if I'm not mistaken hasn't passed any orders concerning the new NREGS in the Right to Food case.

This later non-interference by the Court around NREGS highlights an important point. By legislating a "right" the UPA seemingly made the Court more cautious about intervening to implement a right the Court once monitored and (at least on occassion) issued orders to enforce. This doesn't mean they might not issue orders later, but they seem to have adapted a wait-and-see attitude on this relatively new legislation. NREGS is more far-reaching and potentially far more transformative for India's poor then the work-for-food scheme it replaced that was subject of the Supreme Court's initial orders in the Right to Food case. Yet, enforcement of NREGS has been an ongoing problem, in part because the legislation does not provide for either an independent oversight body to enforce it (like a commission) or for a realistic way for those affected to enforce their right in court. As a result, implementation has varied from quite good to quite poor depending on administrators in a locality, state, etc. This sits in contrast to the Right to Information Act which was implemented to both expand and better articulate what the right was, but also to create mechanisms to make it easier to access (i.e. a system of complaint and appeal if requested information is not given and relatively harsh penalties for administrators who unlawfully withhold information).

If a Right to Food Act is passed it is not clear how the Supreme Court will respond. There is a very real chance that the Court might decide to consider the matter closed if the Act, at least on paper, looks like it is fulfilling its orders in the case. Now in the Right to Food case the Court did expand entitlements in some instances - such as universalizing and mandating the mid-day meal scheme - and these would theoretically be included in any Act. But as far as I can tell the core of the Right to Food case has always been about implementation. Most of the the courts orders simply involved telling the government to implement a scheme it already had on the books. I would suggest that when deciding whether to keep the Right to Food case open or not the Court should look most closely at implementation mechanisms in the Act. Indeed, any right to food act should at its core be about mechanisms of implementation - mechanisms hopefully superior to those that the Court has been able to create on its own.

Biraj Patnaik, the principal adivsor to the Right to Food commissioners appointed by the Court to monitor their orders, has a nice comparative piece in the Mint looking at right to food legislation in different parts of the world. In that article he makes the point that:

"The third key lesson [concerning right to food legislation] is creating a system of not just administrative, but also legal recourse. This is a key feature of the right to food Acts across countries. In Brazil, the public prosecutors’ office take up violations of human rights, including socio-economic rights, at the local level. Guatemala, Venezuela, Brazil, Peru, Uganda and South Africa have already put in place or proposed powerful national commissions that act as oversight bodies and also have the power to impose penalties. Although the Supreme Court has appointed its own commissioners to monitor the food and employment schemes of the Indian government, these commissioners do not have the kind of statutory powers to impose penalties that the bodies in other countries do."

Unfortunately, India currently doesn't have a public prosecutor system (i.e. attorney general, advocate generals, etc.) that is independent or resource-rich enough to be relied upon to implement any future Act. Therefore, the independent commission model with the ability to impose stiff penalties could be a potentially good substitute - it is worth noting that if the public prosecutor system could be built up much of the need for always creating yet another commission to implement a law would go away.

I am firm believer if you want something implemented though you need multiple systems all working towards the same goal because it's likely that they will all break down to some extent. That's why I think any Right to Food legislation should include personal judicial remedies, and more generally India should consider legislating a more robust system of constitutional torts. In the U.S. if someone is deprived of a legislated social welfare benefit this is considered an infringement of their right to property in this benefit. If they succeed in litigation, the party is not only given the benefit they were deprived of, but lawyers fees and potentially other damages. This creates a market amongst lawyers to bring these cases. A similar model could be used in any Right to Food legislation to guarantee damages at a sufficiently high level to attract lawyers to enforce the legislation. U.S. legislation also allows public officials to be personally brought to task if they infringe citizens rights (somewhat similar to the Right to Information Act's penalty of 250 Rs a day on PIOs if they wrongfully withold information).

Taking these considerations into mind, perhaps it would be suitable to call any future act "The Right to Food and Implementation Act" or something along those lines. This is where I think the focus needs to be. I hope that is where it ends up.
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