Rajasthan PUCL Writ in Supreme Court on Famine Deaths

PUCL Bulletin, November 2001

Rajasthan PUCL Writ in Supreme Court on Famine Deaths

The Rajasthan PUCL has filed a writ Petition in the Supreme Court pointing out that while on the one hand the stocks of food grains in the country are more than the capacity of storage facilities, on the other there are reports from various states alleging starvation deaths. The petition seeks court's intervention to give remedial directions to the Government. We give below the salient points of the writ and the latest position with regard to the hearings:

The petition raises the following questions of law of public importance, which need to be adjudicated by this Hon'ble court.

Starvation death is a natural phenomenon while there is a surplus stock of food grains in the Government godowns. Does the right to life mean that people who are starving and who are too poor to buy food grains ought to be given food grains fee of cost by the State from the surplus stock lying with the State, particularly when it is reported that a large part of it is lying unused and rotting?
Does not the right to life under Article 21 of the Constitution of India include the right to food?
Does not the right to food, which has been upheld by the Hon'ble Court, imply that the State has a duty to provide food especially in situations of drought, to people who are drought affected and are not in a position to purchase food?

The facts leading to the petition are as under:
… 3. That there are innumerable cases of starvation deaths reported across the country. Starvation deaths are caused largely due to non-availability of food over a long period of time. Owing to the topography of our Country, there are certain areas that are drought prone and are in the grip of severe drought year after year. Consequently, there is no food available in the public distribution system outlets, and prices at commercial shops are exorbitant, making it impossible for people to purchase food grains. The relief measures provided, in case of drought and famine, are far from adequate and increasing numbers of people have been falling victim to starvation deaths. According to the Government of India figures, out of thirty-six crore people living below the poverty line, there are more than five crore people who have been victims of starvation. The petitioner craves leave to refer to and rely upon the said records at the time of hearing of this petition.

4. The food grains are distributed through the public distribution system, and the 'Department of Food and public Distribution' under the Respondent no 1 manages the system. The Department of Public Distribution is charged with the prime responsibility of the management of the food economy of the country. The twin objectives of the Department are: i. Remunerative rates for our farmers; ii. The supply of foodgrains at reasonable prices through the public distribution system

It is submitted that until 1997, the food distributed through the public distribution system was available for all citizens irrespective of their economic status. However, the Government of India changed its policy and decided to make it available only to those who fall below the poverty line.

5. The Public distribution system is run jointly by the Central and State governments. The Respondent No. 2 is the main agency for the procurement, storage and distribution of food grains. The respondent No 2 procures food grains from the market and stores the same at godowns all over the country. The distribution is on the basis of the quota allocated by the Government of India. Annexed hereto and marked Annexure-P1 is a true copy of the statement indicating various state quotas under the public distribution system.

6. That the central government also has a policy wherein it stores certain buffer stocks for emergencies like drought/famine of crop etc. as well as enable open market intervention in case of price rise. Annexed hereto and marked Annexure-P2 is a true copy of the table indicating the buffer stocks that the Central Government is required to maintain under its policies.

7. That it is submitted that the Respondent no 1 in January 2001 made certain allocations to seven states that were identified as 'drought hit' states by Central Government. Annexed hereto and marked Annexure-P3 is a true copy of the table indicating special allocation of food grains under the 'Food for Work' programme.

8. That in December 2000, the Central Government introduced a scheme to cover the poorest of the poor families, who were supposed to be given food grains at the rate of Rs. 2/- per kg of wheat and Rs. 3/- per kg of rice. Annexed hereto and marked Annexure-P4 is a true copy of the table indicating the percentage of the 'poorest of the poor' families in each state.

9. That the Petitioner submits that though the government introduces various schemes, they have not been effective and the problem of starvation has been sharply increasing.

10. That a large number of people in the country are living below the poverty line. The Public Distribution, which was supposed to cater to their food needs, is designed in an extremely unscientific manner. The ceiling on the maximum amount of food grains that a family will get has been fixed by the Government, which at twenty kilos proves to be extremely low for the family even of the nominal number of persons per family and is much less than the nutritional requirements as recommended by the Indian Council of Medical Research.

11. That the petitioner submits that there is no shortage of food in the country. Food grains are in surplus and are in fact rotting in godowns and warehouses of the Respondent No. 2. It is submitted that there are times when these grains are destroyed exported at throwaway prices or even allowed to be eaten by rodents instead of distributing them to starving people.

12. That the petitioner has obtained information from the official website of the Respondent No. 1, that the quantity of food presently in godowns and warehouses as buffer stock, is more than the requirement in buffer stock. In any event the basic purpose of buffer stock [is that these stocks] are to be used for the benefit of the people of the drought affected areas in order to serve its basic purpose. Annexed hereto and marked Annexure-P5 is a true copy of the table indicating the quantity of grain lying in the buffer stock as against the requirement of the buffer stock.

13. That the Hon'ble Minister of Consumer Affairs and Public Distribution in his letter to the Chief Ministers of all states has in fact accepted the fact that there is surplus in the stocks of the country. Annexed hereto and marked Annexure-P6 is a true copy of the letter addressed to Chief Ministers by the Minister.

14. That the Petitioner has undertaken extensive studies at various regions and has compiled data which indicate that although there are surplus stocks available with the Respondent No. 2, the same are not being given to the State Governments. The State Governments too, have not purchased the minimum grain allotted to them under the Public Distribution System quota on grounds of financial deficits. Annexed hereto and marked Annexure-P7 is a true copy of the table indication the details of the grains allotted by the Central Government to the States and the actual intake by each State.

15. That in order to indicate the gravity of the problem the petitioner is stating facts in relation to the State of Rajasthan and craves leave to refer to and rely upon similar information from other states at the time of hearing this petition.

16. This year, drought conditions prevail in 73.3% (26 out of 35) of Maharastra's districts. As many as 20,000 villages, with a human population of 454.99 lakhs are drought-affected. For a large majority of these villages, this is the third consecutive drought year. Things were very bad in the first two years, but now because of the compounded effect, matters have reached an alarming state. Already there are reports of starvation deaths. The petitioner craves leave to refer to and rely upon the said report at the time of hearing this petition. Over and above this, many people are facing starvation and will die soon if nothing is done immediately to alleviate their misery. There is massive unemployment, the people are sinking deeper and deeper into debt, children are dropping out of school and cattle are either dying or being abandoned in large numbers because their owners cannot provide them with fodder.

17. That relief measures provided by the State of Maharashtra and the Union of India have thus far proved inadequate, incompetent, and unable to stem the misery or alleviate the situation. These relief measures have not even met the standards these governments have set out for themselves in Rajasthan's Famine Code, 1962. Nor have they fulfilled the obligation to protect a citizen's right to life enjoined on them by the Indian Constitution. The State of Rajasthan and the Union of India have failed to safeguard the affected population's basic entitlements to work and life thereby causing untold misery, starvation deaths, near starvation situations, and demoralisation.

18. Meanwhile, close to 50 million tonnes of grain are lying idle in public godowns in Rajasthan and across the country. There is so much grain in the Government's reserves that the Respondent no. 2, the Food Corporation of India has run out of storage space. In some cases, there is barely a distance of 75 kilometers between the location of these godowns and the places where starvation is rampant, people are malnourished, and cattle are dying.

19. Their resources should be used immediately for purposes of drought relief, prevention of starvation and alleviation of misery. Moreover, in accordance with the standards laid down by the State Government itself, open-ended employment at the legal minimum wage for all willing to avail of it in the drought affected areas should be provided forthwith.

20. The Famine Code (Exhibit 1), published by the Government of Rajasthan, describes the State of Rajasthan in the following terms: "Owing to its geographical position, Rajasthan which is an agricultural region in which perennial irrigation is inconsiderable and dry farming extensive, is perilously dependent on the caprices of the Monsoon. Over the greater portion of Rajasthan, rainfall is not only poor, but also precarious. When crops are lost over a large portion of the State for two or more years in succession, the inevitable result is distress among the peasantry and more particularly among the landless labourers (Page i, clause l). When the rains fail crops fail on account of such natural calamities as hail, frost, floods, etc. and anxiety is felt, it is of the utmost importance to make active preparation and thereby put heart into the people [page 5, clause 37]".

Annexed hereto and marked Annexure-P8 is a true copy of the Famine Code, 1972. The Famine Code was introduced with the object of codifying relief operations in order to enforce relief and rehabilitation measure effectively in the State. It is submitted that even at that state that is nearly forty years ago, the code noted that there was a situation of surplus food. Nor have they fulfilled the obligation to protect a citizen's right to life

21. Even in ordinary years, hunger and under-nutrition are widespread in Rajasthan. See Exhibit 2. According to the National Family Health Survey (1998-99(, for instance: a. More than half of all children below 3 years are undernourished. b. About half of all adult women suffer from anaemia. According to National Sample Survey data (Exhibit 3), in 1993-94, almost half of the rural population in Rajasthan lived below the poverty line'. The poverty line is defined as the level of per-capita expenditure at which minimum calorie requirements (2,400 calories per person per day in rural areas) are met, based on observed consumption patterns.

High as they are in ordinary years, under-nutrition levels increase alarmingly in drought years. During the second year of the current drought, in 1999-2000, intense hunger and hardship were widely reported. The situation is worse this year because of the cumulative effect of the suffering and hardship of the previous two years, and is expected to deteriorate further in the next few months. Already there are reports of acute hunger and starvation deaths. See Exhibit 4. Annexed hereto and marked Annexure-P9 is a true copy of a magazine report in the Frontline.

22. It is submitted that even the Official documents indicate that the state of Rajasthan is facing severe drought for the third consecutive years. Annexed hereto and marked Annexure-P10 is a true copy of the letter addressed to the Prime Minister of India by the Chief minister of Rajasthan (exhibit 5). Annexed hereto and marked Annexure-P11 is a true copy of letter written to the Union Minister for Food and Civil Supplies. (Exhibit 6) These letters admit that the state of Rajasthan is facing drought for the third consecutive year. In his letter to the Prime Minister, dated 20 September, 2000, the Chief Minister observed: - "The drought conditions of 1999-2000 extended upto July 2000…Current monsoons have not been satisfactory and it is possible that we might have to face yet another drought. Being the third consecutive bad year, it would be quite a severe drought."

23. According to State Government statistics (Exhibit 7), 73.6% of the villages in the State (30,583 out of 41, 529) are drought affected, i.e. crop damage of 50% or more. The population affected, according to these State Government statistics, is 330 lakhs. In 47% of the villages (19,817 out of 41,529), crop losses are above 75%. See Exhibit 7.0. Annexed hereto and marked Annexure-P12 is a true copy of the relevant extracts of the Memorandum of Scarcity, 2056 dated November 1999.

24. A related effect of this drought is large-scale unemployment. In drought-affected villages there is virtually no agricultural employment. Due to lack of diversification of the rural economy, non-agricultural employment is also extremely limited. Rampant unemployment in drought-affected areas has led to large-scale distress migration. Even migration-based employment opportunities, however, are very limited. In particular, because of the recent earthquake, there are few work opportunities in Gujarat, a traditional destination for impoverished migrant labourers in Rajasthan. Many of the labourers who had recently migrated to Gujarat from southern Rajasthan in search of work have been returning empty handed to Rajasthan for want of work in Gujarat.

25. In a welfare state the primary duty of the Government is to secure the welfare of the people. Article 21 imposes an obligation on the State to safeguard the right to life of every person. Preservation of human life is thus of paramount importance. The State cannot avoid their constitutional obligations in that regard on account of financial constrains. [Paschim Bangal Khet Mazdoor Samity v State of W. Bengal (1996) 4 SCC 37"].

26. In any organised society, the right to live as a human being is not ensured by meeting only the animal needs of man. It is secured only when a man is assured of all facilities to develop himself and is freed from all those restrictions that inhibit his growth. All human rights are designed to achieve this object. The Right to Life guaranteed in any civilised society implies the right to food, water, shelter, education, medical care and a decent environment. These are basic human rights known to any civilised society. The civil, political, social and cultural rights enshrined in the Universal Declaration of Human Rights and Convention or under the Constitution of India cannot be exercised without these basic human rights. [Chameli Singh v State of UP (1996) 2SCC 549.] Per Bhagwati J: "We think that the right of life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter over the head and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and comingling with fellow human beings" Franic Caralie v Union of Territory of Delhi (1981) 1 SCC, 608.

27. For the State of Rajasthan, in particular, the duties of the State Government, as described by the State Government itself, are clearly spelt out in the Famine Code. As is explained in the preface of the Code, which has been signed by the Relief Commissioner and Secretary to the Government, the Famine Code was intended to replace the ad hoc nature of the relief operations that were undertaken from time to time, and to codify the procedures, duties and responsibilities of the State Government: "While the Rajasthan Government have been spending large sums of money for the relief of distress there was no enactment of Code to regulate relief operations, which have hitherto been governed by procedure laid down in various circulars and orders issued from time to time on the basis of past practice or precedent, or the provisions of the Famine Code of some other States, such as Uttar Pradesh, Madras, etc. The need for regular Code for relief operations has been keenly felt for some time, and all the rules and instructions issued time to time, with certain modifications and amplifications have been brought together in this Famine Code, which is being issued under the authority of Rajasthan Government (Page ii, clause 7)."

28. Therefore, the duties and responsibilities listed in the Code are binding on the State of Rajasthan as they have the status of 'circulars and orders' and 'rules and instructions'.

29. Since the State of Rajasthan (as is seen in the letters of the Chief Minister) has already acknowledged that drought, scarcity and famine conditions exist in many parts of the State, and since this is supported by data collected and published by the State of Rajasthan (see Exhibit 7), it is not necessary to show that famine conditions, scarcity, and drought are actually prevailing in many parts of the State. Given this situation, the imperatives contained in the Famine Code immediately become operative, and the State Government is required to provide relief according to the terms of the Code.

30. The Famine Code is quite specific about the nature of relief to be provided by the State Government to the affected areas. Accordingly, in times of drought, the Code [page 4, clause 8] requires the Relief Commissioner to: a. arrange for provision of funds to undertake relief measures; b. to formulate proposals to set-up an organisation to deal with the scarcity or famine conditions; and c. to co-ordinate activities of different departments and local bodies to provide effective relief. On page 21, clause 50 (A) of the Code provides that:

The following types of relief measures are to be taken from February to the end of July. 1.Relief Works: P.W.D. Agency (i) Roads (ii) Other Works, Irrigation Agency, Tanks, Canals, etc. Revenue Agency (i) Construction of tanks. ii. Other Works. iii. Construction of Roads. 2.Relief to the people employed otherwise than on relief works. 3.Gratuitous relief. 4.Miscellaneous: a. Water supply arrangements, b. Cattle conservation and fodder arrangements, and c. Transportation charges on movement of food grains in scarcity areas. On page 33, clause 75 of the Code provides that: "Every person who comes for work on a relief work shall be provided with work and shall be classified as given below according to his physical conditions. Only those persons who are physically unfit or disabled shall not be given work. Such persons shall be given Gratuitous Relief according to the provisions of Chapter 12."

Further, labourers employed on relief work are legally entitled to the legal minimum wage, currently Rs.60 per day in Rajasthan. On page 6, clause 12 of the Code states that: "The programme of public works shall provide for twenty percent of the population of the areas for a period of six after taking into consideration the likelihood of scarcity of famine in each area. The work on the programme of each district shall not be distributed evenly over the district as a whole but shall provide for tehsils or tracts in accordance with the probable intensity of famine therein.

On page 9, clause 21 of the Code states that: "programme for relief works shall be drawn up separately in order of priority of each Tehsil and as far as possible such works may be selected as would provide employment to people within five miles from the site of the works." On page 10, clause 24 of the Code states that: "The programme of Revenue Department Works shall provide for twenty percent of the population of the villages lying within the radius of five miles from the centre for a period of six months after taking into consideration the likelihood of scarcity or famine in each area. The work of the programme of each district shall not be distributed evenly over the district as a whole but shall provide for tehsils or tracts in accordance with the probable intensity of scarcity or famine therein." On page 5, clause 11 of the Code states that: "Works of permanent public utility should form the basis of all relief programmes and preferences should be given to the P.W.D. works as far as possible and practicable. Revenue Department works, though they are not of permanent utility but are undertaken as preferable alternative to gratuitous relief, will be the back bone of the relief system in localities offering special features, especially in desert areas and hilly tracts inhabited by Scheduled Tribes and Backward Classes.

These works shall be regarded as the principal means of employing labour." On page 29, clause 66 of the Code provides that: "In deciding on the number of works, and the area which each shall serve, the Collector shall have regard to the circumstances of the people, the condition of locality, its previous history, and the readiness or otherwise of the people to take relief." On page 26 of the Code states that: "Social and public workers, philanthropists and village Panchayats should be associated in the execution of the relief programme." On page 33, clause 73 (A) of the Code provides that: "The Collector shall take steps to stimulate public charity or associate with institutions as the Marwari Relief Society or the Rajasthan Akal Sewa Samiti, to ensure the provision of a sufficient supply of food for all relief works. In case such arrangements are not possible a cheap grain shop will be opened by Government whenever this may be considered necessary."

On page 35, clause 82 of the Code provides that: "The dependants shall be provided gratuitous relief according to rules laid down in Chapter 12." Chapter 12 of the Code is entitled 'Gratuitous Relief in villages' and contains clause 152 on page 59 which provides that:
"Principles for selection of recipients of gratuitous relief can be broadly laid down as follows and the following classes of persons shall be afforded this relief provided they have no relative able and by custom of the country bound to support them: a. the aged and infirm who are incapable of earning their living, b. the blind, crippled, insane and idiots, c. all persons whose attendance on the sick or on infant children at their own homes is absolutely necessary, d .women who are debarred by custom from appearing in public and are unable to provide themselves with sufficient food, e. Men who are unable to earn their livelihood by finding employment at the relief works and are in danger of starvation. f. Pregnant women or women with two or more young children or with children at the breast; and g. Young children whose relations will not or cannot support them and the like."

31. As things stand today, the Government of Rajasthan has failed abjectly in discharging its responsibilities to most of the drought-affected people of the State, either under Article 21 of the Constitution of India or the Famine Code.

32. Despite being required to give work to 'every person who comes for work on a relief work' [Famine Code, page 33, clause 75], the Government of Rajasthan has introduced arbitrary 'ceilings' on the numbers of persons that are to be given employment through relief works. See Exhibit 8. The ceiling was 1.93 lakhs in January, 3 lakhs in February and 4.96 lakhs in March. The last figure (4.96 lakhs) represents only 1.5% of the drought-affected population by the Government's own statistics. It is also important to note that 'ceilings' apply to the numbers of labourers employed, and that there is also, in addition, a ceiling of 15 days on the number of days of employment per labourers in a particular month. Annexed hereto and marked Annexure-P13 is a true copy of the transcript of the wireless message from the Relief Secretary, Government of Rajasthan, Jaipur to the Collectors of various districts in Rajasthan.
33. It is submitted that employment actually given is well below the 'ceiling' [see Exhibit 8]. In January, according to its own statistics, the Government employed only 1.2 lakh persons as against a ceiling of 1.93 lakhs. Similarly, in February, when the ceiling was 3 lakhs, the number of persons employed was only 1.8 lakhs as per official statistics. This amounted to less than 1% of the drought-affected population. Further, these official claims need to be verified, and there is a possibility that the numbers actually employed in January and February were even lower, bearing in mind that official figures are often inflated by fake muster rolls and other fraudulent practices. (There is much evidence of these practices in the context of earlier droughts). In 1986-88, for instance, test checks conducted by the Controller and Auditor General of India revealed "irregularities amounting to Rs.146 crores representing 59 per cent of the expenditure)".

34. Official statements suggest that it is the State Government's aim to raise labour ceilings to 8 lakhs in April, 12 lakhs in May and 16 lakhs in June (Exhibit 8, Item 5). However, there is absolutely no guarantee that these informal "targets" will be met. Indeed, they have been mentioned mainly in the context of requests for assistance from the Union Government. There is no indication that the State Government is firmly committed to these targets if the requests for assistance are unsuccessful, as they have been so far. Even if the "ceilings" are raised, as per these targets, it is likely that actual employment will be much lower, judging from the experience of the last few months.

35. Even the peak target ceiling of 16 lakhs for June represents less than 5% of the drought affected population according to the Government's own figures.

36. There is no case for discontinuing relief works at the end of June, as hardship is expected to continue, if not intensify, well beyond that until the arrival of the Kharif crop. According to the Famine Code (clause 50 (A), quoted in para 5.2 above), relief works are to be extended until the end of July. Further, the Famine Code [clause 50 (A) (4)] recognises the possible need for continuation of relief works beyond that date: "If there are no rains in the month of July, the relief operations may be extended upto the end of August or earlier till the principal autumn crop is ripe."

37. The Failure to pay the legal minimum wage of Rs.60 has been reported in many places. The Government of Rajasthan's own data (see Exhibit 9) also corroborates this. The Petitioner craves leave to refer to and rely on the relevant documents at the time of hearing this petition.
38. The Government of Rajasthan is providing subsidised food to only some BPL ('below poverty line') families. This Petitioner has visited many villages where not a single BPL family has been provided with subsidised food. The official entitlement of BPL families to subsidised food is 20 kg of wheat per household per month at Rs. 4.60 per kg.

This provision is hopelessly inadequate for the following reasons: a. With the market price of wheat hovering around Rs.7 per kg. in Rajasthan, the BPL entitlement of 20 kg per household per month at the rate of Rs.4.60 per kg represents an implicit income transfer of only Rs. (7-4.60) x 20 = Rs.48, that is, less than Rs.10 per person per month for an average family of 5. b. A recent survey (Exhibit 10) indicates that actual distribution is irregular; only one third of the sample villages had regular distribution of subsidised wheat during the three months preceding the survey, and in one sixth of the villages, no distribution had taken place at all. Annexed hereto and marked Annexure-P14 is a true copy of the extracts of the survey conducted by academics. c. The inadequacy of official distribution is also evident from official statistics. The latter show, for instance, that the Government of Rajasthan's actual 'off take' of grain from the Food Corporation of India is far below its 'allotment' (see Exhibit 11). In 1999-2000, for instance, off-take was only 37.5% of allotment. Even under the BPL quota (based on the official norm of 20 kg per month for BPL households), off-take was only 73.7% of allotment. A similar situation prevails this year. d. The identification of BPL household is known to be highly unreliable, due to inaccuracies in the baseline surveys as well as personal and political influences. As a result, many eligible households are actually excluded. e. Even if 20 kg of wheat per household were provided free of cost to every family below the poverty line (with no misidentification of these families), this would amount to only 130 grams per person per day on average, equivalent to 400 calories or so. This is barely one sixth of the Planning Commission's 'minimum calorie norm' of 2,400 calories per day.

39. The inadequacy of the relief measures in 2000-01 can also be seen by comparing them with the relief measures taken by the Government of Rajasthan during 1987-88, which was the period of the most recent major drought prior to the present drought. The 1987-88 drought was in some respects similar to the current drought: it was the third consecutive drought year in Rajasthan, with widespread crop losses across the State (Exhibit 12a). Annexed hereto and marked Annexure-P15 is a true copy of the table giving comparative information on the drought situation in 1987 and 2000-01. However, this year's drought is worse than the drought in 1987-88 in at least two respects: a. crop damage is more extensive, and b. the rural population's staying power and ability to withstand hardship of the rural population has been severally eroded in the intervening years, particularly due to the decline of groundwater tables and growing water shortages.

40. Even though the 1987-88 drought was less severe than the current drought, relief measures in 1987-88 were far more extensive (see Exhibit 12a). In particular A. In 1987-88, there was a policy of open-ended employment on relief works (upto one person per family) in drought-affected areas. This means that subject to the limitation of one person per family, everybody who wanted work was given it. This is not at all the case today, as paragraphs 6.1 and 6.2 of this petition have demonstrated. B. In 1987-88, the public distribution system provided 10 kg of wheat per person per month throughout Rajasthan (with no distinction between BPL and non-BPL households). In this drought the Government has provided only some BPL households with 20 kg of wheat per household per month and has charged them Rs.4.60 per kg, which represents an assistance of less than Rs.5 per person per month.

41. The basic effectiveness of the 1987-88 relief measures can be seen from the following facts:
a. There was no significant increase in mortality in 1987-88, compared with earlier years (Exhibit 12, Item 2). Annexed hereto and marked Annexure-P16 is the relevant extract from the Compendium of India's Fertility and Mortality Indicators, 1971 - 1997, published by the Registrar General of India.
b. There was no significant increase in poverty in 1987-88, compared with earlier years (Exhibit 3). Annexed hereto and marked Annexure-P17 is the relevant table from an academic paper published by the international Food Policy and Research Institute dated May 1997.

42. The relief measures of 1987-88 can be taken as an indication of what it takes to avert a humanitarian crisis in a situation of severe drought in Rajasthan. This year, the relief measures are nowhere near being undertaken on the same scale. Correspondingly, the drought has already led to widespread hunger, starvation and hardship, which are expected to increase sharply during the next few months.

43. It is submitted that the experience of the 1987-88 drought can be used for the purpose of rough estimates of the resources required this year to provide drought relief on an adequate scale. Suppose, for instance, that the total number of person-days of employment generated over the whole year in 1987-88 (i.e. 2,224 lakh person-days) were provided over the next six months at the legal minimum wage of Rs.60 per day, roughly equivalent to 10 kg of wheat per day. Even if we make a generous allowance of another 10 kg per person-day for the cost of materials, we find that the total amount of wheat required for this massive food-for-work programme is only 4.4 million tonnes, i.e. less than 10 per cent of the current stocks of food held by the Food Corporation of India (see below). This illustrative calculation clearly shows that the resources required for a massive expansion of relief measures in Rajasthan are well within the means of the Respondents, the State and Central Governments.

44. According to government officials, the main reason for the limited scope of relief measures this year is that the Government of Rajasthan is short of funds. This is not acceptable, and shortage of funds as an excuse has been rejected by the Supreme Court when it comes to preserving the fundamental right to life and to food: Paschim Bangal Khet Mazdoor Samity v State of W. Bengal (1996) 4 SCC 37

45. Not only is shortage of resources is an unacceptable excuse, it is also untrue and misleading. Close to 50 million tonnes of grain (mainly wheat and rice) are lying idle in public godowns across the State and the country. In some cases, there is barely a distance of 75 kms between the location of these godowns and the places where starvation is rampant. There is an urgent human need, supplemented by practical considerations, to utilise a substantial portion of these food stocks, particularly in view of the following (for further details, see Exhibit 13): a. The current stocks of 47 million tonnes are far in excess of the quantities required for purposes of food security and price stabilisation - about 17 million tonnes according to the Food Corporation of India's own "buffer stock norms" (Exhibit 13, Item I). b.

The excess stocks are being kept at enormous public expense: according to a recent study by Professor Madhura Swaminathan of the Indian Statistical Institute, the costs associated with maintaining buffer stocks account for nearly 45% of the so called 'food subsidy' (about Rs.10,000 crores in 2000-01) (Exhibit 13, Item 2). Annexed hereto and marked Annexure-P13 is a true copy of the paper by Prof. Madhura Swaminathan. c. The excess stocks, so often stored in sub-standard conditions, are particularly exposed to rot, pest, theft and other losses. According to a recent parliamentary committee, rotting grain may account for as much as 1 million tonnes of the current stock (Exhibit 13, Item 3). Some of it is not even fit for animal consumption and may end up being dumped in the sea. It seems that the Government of India would rather feed the fishes in the Arabian Sea than the people of India. d. The Respondent no. 2, The Food Corporation of India, has completely run out of storage space (inclusive of hired private storage warehouses).

Meanwhile, the Commission on Agricultural Costs and Prices estimates that, even with no increase in the 'minimum support price' of wheat, an additional quantity of upto 13 million tonnes of wheat may have to be procured after the forthcoming rabi harvest (Exhibit 13, Item 4). There is a desperate need for storage space, which reinforces the case for utilising a substantial portion of the existing stocks without delay.

46. The arguments made in the preceding paragraphs have been highlighted by the State of Rajasthan itself. In his letters to the Prime Minister and to the Union for Food and Consumer affairs, the Chief Minister has voiced the same opinion being: Extract from letter dated 20 September 2000 from the Chief Minister of Rajasthan to the Prime Minister of India (Exhibit 5): "I have been reading reports about the surplus foodgrains available in FCI godowns and about the plans of the Government of India to dispose of such grains early. I would, therefore, once again propose that Government of India should consider, very early, allocating foodgrains in sufficient quantities free of cost to be distributed as part of wages to workers on relief works in rural areas. Government of India may kindly immediately consider making available such surplus foodgrains for all rural development works being executed by the DRDAs.

Later, as and when the requirement for opening drought relief work arises, such facility should also be extended in respect of these also… Not only will this provide much needed relief to the rural poor who are reeling under the after-effects of the famine but who are also apprehensive about the coming drought. This will, on one hand, help in reducing carrying cost of the surplus foodgrains available with FCI while preventing loss through wastage and, on the other, augment the resources to meet the expenditure on rural works. Partial depletion of such stocks will make available to the FCI an additional space where foodgrains recently acquired can be stored in a scientific manner. The cash resources so saved could thus be used to take up larger number of rural/relief works."

Extract from letter dated 12 December, 2000 from the Chief Minister of Rajasthan to the Union Minister for Food and Consumer Affairs (Exhibit 6a): "I have recently read a news item in newspapers that Indian wheat is being offloaded in the International Market at throwaway prices. According to the report, wheat procured by the Government from the farmers at the average rate of Rs.8.30 per kg is now being exported to other countries including Bangladesh, West Asia and CIS countries at Rs.4.40 per kg.... This is particularly relevant in the context of the drought-affected operations that we will have to soon initiate in view of the third recurring drought year in Rajasthan. You will appreciate that providing nutrition to farmers in the State at a time when they have lost their crop due to a failure of the monsoon is the top priority of the State Government.

Rather than exporting wheat to other countries, the Government of India should consider free allotment of wheat to those States where it can be used to fulfill and maintain the nutritional level of the population at a critical time such as the current drought. This would reflect a sense of responsibility and concern on the part of the Central Government towards the acute problems being faced by the State Government at such a critical time".

Extract from letter dated 29 December, 2000 from the Chief Minister of Rajasthan to the Union Minister for Food and Consumer Affairs (Exhibit 6b): "I have now come to understand from another news item that lakhs of tonnes of foodgrain are rotting in the godowns of the FCI and that there is a proposal for dumping this foodgrain into the sea to create storage space for the next crop. It has been further reported that during the year 1999-2000, 2.05 lake tonnes of foodgrains costing around Rs.185 crores was placed on the 'damaged account' and that the accumulated stock of grains presently rotting in the godowns could well be in the order of 10 lakh tonnes. The Parliamentary Standing Committee on Consumer Affairs, Food and Public Distribution has made an indictment of the improper management of FCI and other problems associated with the lunting stock pile of the foodgrains."

"I have been periodically writing to you about the need to provide wheat free of cost for meeting labour payments in the Food for Work Programme especially in the forthcoming drought months in the State. You will agree with me that timely dispatch of free grain to the State will help to sustain the nutritional level of the drought affected population which is definitely more important than allowing the grain to deteriorate and dump it into the sea. The above report of the Standing Committee proves that no proper efforts are being made by the ministry of Food and Consumer Affairs to minimise the operational cost. All this is leading to a situation where stocks of foodgrains are mounting and poor people are not getting access to the same. Release of foodgrain free of cost at such a critical time in a State like Rajasthan would be a much better economic option than allowing the grain to deteriorate to a level where it is not fit for consumption even by animals."

47. As is evidenced by the above extracts, repeated and insistent requests for free wheat have been made by the Government of Rajasthan to Government of India. By and large, these requests have fallen on deaf ears so far, except for a token allocation of 1 lakh tonnes of free wheat for the period January-March, 2001. This is a pittance -- about 3 kgs of grain per drought-affected person.

48. The Government of Rajasthan has undermined its own case by failing to make full use of the quantities of wheat already allotted to it by the Government of India. See Exhibit 11.

49. There appears to be a tendency of the part of the State and Central Governments to blame each other for this stalemate, even though starvation continues unabated. In objective terms, the case for immediate release of a substantial portion of the food stocks for drought relief purposes is very strong. Whatever bureaucratic, logistic, inter-party, political and other rivalries and hurdles stand in the way should be resolved by the parties as a matter of urgent priority, so that the suffering of the drought-affected population can be alleviated and starvation can be stopped.

50. It is the duty of the State and the Union Government to enforce the right to life of all persons particularly in situations of drought. The right to live enshrined in Article 21, as interpreted by the Supreme Court, includes the right to food. Persons below the poverty line or persons who are drought-affected and who do not have the financial capacity to purchase foodgrains are entitled to be looked after by the State and the Union Government in this regard. As these persons move from chronic malnutrition to acute starvation, the State and Union Governments are duty bound to intervene and start relief works and distribute free grain to those unable to work. Financial constrains is no excuse when the issue is one of preservation of life, and has been rejected by the Supreme Court in this context.

51. The Government programmes in the present drought grossly under-estimate the number of persons requiring immediate assistance, as well as the quantity of foodgrain needed immediately for distribution to the poor to stave off starvation. The efforts of the Government in fact amount to tokenism and represent a gross dereliction of duty and betrayal. Both Articles 14 and 21 are violated in that disregard for the drought-affected is harsh and discriminatory, affecting life itself.

Aggrieved by the inaction of the Respondents, the Petitioner is preferring the present special leave petition on the following amongst other grounds which are set out without prejudice to each other:

GROUNDS.

Because the Respondents have been highly negligent in performing their obligations and are causing enormous damage to the lives of the people due to their inaction.
Because the Respondents have abdicated their constitutional obligation under Article 21 of the Constitution of India which makes it mandatory for the respondents to ensure the right to life of the citizens which includes the right to live with dignity with at least two square meals a day.
Because the Respondents have failed in discharging their responsibilities by not utilising the resources available for the purposes of drought relief, prevention of starvation and alleviation of misery.
Because in accordance with the standards laid down by the Respondents themselves, open-ended employment at legal minimum wages for all willing to avail of it in the drought affected areas ought to be provided which the Respondents have failed to provide.
Because in a welfare state the primary duty of the Government is to secure the welfare of the people. Article 21 imposes an obligation on the State to safeguard the life and liberty of every person. Preservation of human life is thus of paramount importance. The State cannot avoid its constitutional obligation in that regard on account of financial constraints.
Because the abdication of duties by the Respondents is in total violation and abject disregard of the principles laid down by this Hon'ble Court in the case of Paschim Bangal Khet Mazdoor Samity and others v. State of West Bengal, [1996 (4) SCC 37].
Because the Respondents have ignored the principles laid down by the Hon'ble Court in Chameli Singh v. State of U. P., {1996 (2) SCC 549] wherein it was held that in any organised society, the right to live as a human being is not ensured by only meeting the animal needs of a man. It is secured only when a man is assured of all facilities to develop himself and is freed from all restrictions which inhibit his growth. All human beings are designed to achieve this object. The Right to Live that is guaranteed in any civilised society implies the right to food, water, shelter, education, medical care, and a decent environment. These are basic rights known to any civilised society. The civil political and cultural rights enshrined in the Universal Declaration of Human Rights and convention or under the Constitution of India cannot be exercised without these basic human rights.
Because the Respondents have ignored the fact that the right to live includes the right to live with human dignity and all that goes along with it, namely, the bare necessities of life such as adequate nutrition, clothing and shelter over the head and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and comingling with fellow human beings as held by this Hon'ble Court in Francis Coralie Mullin v. Union Territory of Delhi, [1981 (1) SCC, 608].
Because the practices adopted by the respondents with respect to the allocation of food is archaic, unscientific and without any basis on the demand--supply principle.

52. That the petitioner has no other efficacious remedy than to approach this Hon'ble Court.

53. That the Petitioner has not filed any petition before this Hon'ble Court seeking the same reliefs.

PRAYER:
In the facts and circumstances stated herein above it is Most Respectfully prayed that this Hon'ble Court be pleased to:

to order the Government of Rajasthan to provide immediate open-ended employment at the legal minimum wage to at least one member per household in all drought-affected villages for a continuous period of at least six months;
to provide 'gratuitous relief' to persons unable to work as per the provisions of the Famine Code;
to raise the PDS entitlement to 10 kg of grain per person for all households (at the present BPL rate of Rs.4.60 per kg), as was done in the 1987-88 drought;
to order the Government of India to release food stocks free of cost to the Government of Rajasthan, to the extent necessary to cover all expenses associated with these relief measures;
to make any other relief or order that the court thinks necessary and appropriate.

Application for Interim Relief.
1. This is the third successive year that millions of people across the country, particularly in the States made respondent to this petition, have suffered drought. Things were very bad in the first two years, but now because of the compounded effect, matters have reached an alarming state. Already there are reports of starvation deaths. Over and above this, many people are facing starvation and will die soon if nothing is done immediately to alleviate their misery. There is massive unemployment, the people are becoming increasingly indebted to rapacious money-lenders, children are dropping out of school, and cattle are either dying or being abandoned in large numbers because their owners cannot provide them with fodder. Across the board in scarcity affected areas, malnutrition and infant mortality are rapidly increasing.

2. The failure of the monsoons three years in a row does not excuse the failure of the State Governments and the Union Government three years in a row to provide relief. Relief measures provided by the States and the Union of India have thus far proved inadequate, incompetent, and unable to stem the misery or alleviate the situation. They have not even met the standards they have set out for themselves in the Famine / Relief / Scarcity Codes of the various states or fulfilled the obligation to protect a citizen's right to life enjoined on them by the Indian Constitution. The Respondent States and the Union of India have failed to safeguard the affected population's basic entitlement to work and life thereby causing untold misery, starvation deaths, near starvation situations and demoralisation.

3. Meanwhile, 50 million tonnes of grain is lying idle, unused and rotting in public warehouses across the country. There is so much grain in the Government's reserves that there is a shortage of storage space. In some cases, there is barely a distance of 75 kilometers between the location of these godowns and the places where starvation is rampant, people are malnourished, and cattle are dying.

4. These resources should be used immediately for purposes of drought relief, prevention of starvation, and alleviation of misery. Moreover, in accordance with the standards laid down by the State Government itself, open-ended employment in lieu of minimum wages for all willing to avail of it in the drought affected areas should be provided forthwith.

5 Even in ordinary years, hunger and under nutrition are widespread across rural areas in India. According to the National Family Health Survey (1998-99), for instance: (a) more than half of all children below 3 years are undernourished. (b) more than half of all adult women suffer from anaemia. (c) more than one third of all infants have a low birth weight.

6. High as they are in ordinary years, under nutrition levels increase alarmingly in drought years. During the second year of the current drought, in 1999-2000, intense hunger and hardship were widely reported. The situation is worse this year because of the cumulative effect of the suffering and hardship of the previous two years, and is expected to deteriorate further in the next few months. Already there are reports of acute hunger and starvation deaths.

7. A related effect of this drought is large scale unemployment. In drought-affected villages there is virtually no agricultural employment. Due to lack of diversification of the rural economy, non-agricultural employment is also extremely limited. Rampant unemployment in drought-affected areas has led to large-scale distress migration. Even migration-based employment opportunities, however are very limited.

8. Despite being required to give work to 'every person who comes for work on a relief work,' as is required by the various Famine / Relief / Scarcity Codes of the Respondent States, the respondent State Governments have introduced arbitrary 'ceilings' on the numbers of persons that are to be given employment through relief works. Those eventually given employment represent only a miniscule fraction of the drought affected population by the government's own statistics. No criteria are laid down according to which this fortunate few of the drought affected will be selected or on what basis the remaining majority will be condemned to starvation and misery.

9. There is no case for discontinuing relief works at the end of June, as hardship is expected to continue, if not intensify, well beyond that until the arrival of the Kharif crop.

10. Failure to pay the legal mini mum wage of Rs. 60 has been reported in many places.

11. Not only is shortage of resources as an excuse unacceptable, it is also untrue and misleading. 50 million tonnes of grain (mainly wheat and rice) are lying idle in public godowns across the State and the country. In some cases, there is barely a distance of 75 kms between the location of these godowns and the places where starvation is rampant. There is an urgent human need, supplemented by practical considerations, to utilise a substantial portion of these food stocks, particularly in view of the following:

The current stocks of 50 million tonnes are far in excess of the quantities required for purposes of food security and price stabilisation which is about 20 million tonnes.
The excess stocks are being kept at enormous public expense: storage costs alone have been estimated to account for as much as 36% of the so called 'food subsidy' (about Rs 10,000 crores in 2000-01).
The excess stocks, often stored in sub-standard conditions, are particularly exposed to rot, pest, theft and other losses. According to a recent parliamentary committee, rotting grain accounts for as much as 1 million tonnes of the current stock. Some of it is not even fit for animal consumption and may end up being dumped in the sea. It seems that the Government of India would rather feed the fishes in the Arabian Sea than the people of India.
The Food Corporation of India has completely run out of storage space (inclusive of hired private storage warehouses). Meanwhile, the Commission on Agricultural Costs and Prices estimates that, even with no increase in the 'minimum support price' of wheat, an additional quantity of up to 20 million tonnes of wheat may have to be procured after the forthcoming rabi harvest. There is a desperate need for storage, which reinforces the case for utilising a substantial portion of the existing stocks without delay.

Keeping in mind the urgency of the situation and the fact that malnutrition, sometimes to the point of starvation, is rapidly increasing among the people in the scarcity affected areas, it is most respectfully prayed that this Hon'ble Court be pleased to grant the following interim reliefs:

Till 30 September 2001, the State Governments should provide open-ended (that is, no ceilings on the number of people to be employed) food for work programmes at the legal minimum wage of that State, to all those willing to avail of such work, regardless of APL / BPL classification, in all areas that were classified as being scarcity / drought affected as of May 2001. The States should pay 10 kgs of grain per labourer as wages, the value of this grain payment should be calculated at BPL prices, and the balance amount of the legal minimum wage should be paid as cash.
Provide gratuitous relief to all persons unable to work, in all areas that were classified as being scarcity / drought affected as of May 2001. This relief must be provided till 30 September 2001.
Till 30 September 2001, the State Governments must distribute 10 kgs of grain per person per month at BPL prices through the PDS to all people, regardless of APL / BPL classification, in areas that were classified as being scarcity / drought affected as of May 2001.
The State Governments should ensure that villagers who have migrated to the cities in search of livelihood should be able to use their existing ration cards in the cities to draw their entitlement of grain through the PDS.
The State Governments should provide suitable employment, under the food for work programmes, to those disabled people (such as the deaf and dumb) who are capable of working, as such disabled people will not always qualify for gratuitous relief even where it is available.
People over 55 years of age should be given light work and not hard labour tasks under the food for work programme.
The Central Government must release to the States where scarcity prevailed in any area as of May 2001, sufficient food stocks, free of cost, to the full extent necessary to cover (till 30 September 2001) the Food for Work Programme, distribution of PDS grain, and gratuitous relief.
The Central Government must release to the States where scarcity prevailed in any area as of May 2001, sufficient funds, to the full extent necessary to cover (till 30 September 2001) the Food for Work Programme, distribution of PDS grain, and gratuitous relief.

Any other order this Hon'ble Court deems necessary and desirable. .

A Brief Report of the Hearing on August 20, 2001:
The Supreme Court in the hearing of the PUCL, Rajasthan, writ expressed serious concern over the starvation deaths in some States. The Court observed that the Central and State governments had the primary responsibility to ensure the food grains over-flowing in FCI godowns reached starving people and not wasted. The Court's anxiety was that the poor, destitute, and weaker sections of the society should not suffer from hunger and die of starvation. Mere schemes without implementation were of no use.

The Attorney General, Mr. Soli Sorabji contended that as far as interim directions needed to address the issues were concerned, the Centre would file an affidavit soon.

The Bench observed at one point that "even if the food grains had to be given free, it should be done as no person should be deprived of food merely because he had no money".

On July 23, the Court has asked Orissa, Rajasthan, Chhattisgarh, Maharashtra, Gujarat, and Himachal Pradesh to take immediate steps to make closed public distribution system shops functional.

Mr. Soli Sorabji termed the situation as a horrendous state of affairs adding that there was something radically wrong with the system.
The Court was informed about the ineffective implementation of the 'food for work' scheme. The petitioner alleged that hardly 10% of the total numbers of those who approached for work under the scheme were allowed to work. Under this scheme 50% of wages were paid in food grains and the remaining in cash.

The hearing was adjourned till September 3 for passing interim directions.

Sept. 3, 2001 - Update of the September 3rd PIL Hearing:

The Supreme Court noted that it was shocked by the Union of India's affidavit. This is mainly because while on one affidavit page it says that a family of 5 members would require 75 Kilograms of food grains to survive, on another page it says that the PDS is providing only 10 kilograms. In other words, hunger and starvation is getting perpetuated.
The supreme court also pointed out that actions like free distribution of food ,etc are important but what we need is long term solutions. And for that the capabilities of the people need to be raised by various means such as by providing them with work, etc.
The Supreme Court said that we need to zero down on those states which require urgent attention. These states need not necessarily be drought hit but those which are suffering from severe hunger and starvation. These states, as delineated by the SC , are Orissa, Bihar, Jharkhand, Chhattisgarh, Madhya Pradesh, Rajasthan, Gujarat, Himachal Pradesh, Andhra Pradesh, Kerala.
The issues related to these states shall be taken up in the next hearing. This is mainly to make the endeavor more focused. In the subsequent hearing other states shall be taken up.
The Supreme court has asked the PUCL lawyers to come out with a status report by collating all the relevant material and dimensions from the affidavits provided by the States and the Union of India.
Based on the status report, the lawyers are to draw up concrete action plans to be taken up at the state level and file a supplement suggestions affidavit. While doing so the Supreme Court also asked the lawyers to delineate the type of employment which can be provided in the particular districts.
It also asked to suggest small committees at the various state level comprising two responsible and spirited officials and two or three NGO for implementation and monitoring of the long term plan.
The Supreme Court has also asked the 16 states which have not identified the poorest of poor in their states to do so immediately.
The next hearing is on September 17.

Update of 17 September Hearing: The Supreme Court today took strong exception to the failure of most state governments to comply with its earlier order relating to the identification of poor families.

On 3rd September, the Court had given two weeks to the State governments to identify families eligible for foodgrain distribution under the "Antyodaya" programme (intended for the poorest of the poor). Today, the bench was shocked to find that most state governments were unable to provide evidence of having complied with the order. The government of Orissa, where a wave of starvation deaths have been reported during the last few weeks, came under particularly sharp criticism for its "utter callousness" in this regard. After hearing lame excuses from state after state, Justice Kirpal described their responses as "a tragic comedy".

In light of the "seriousness of the matter", the bench gave the governments another three weeks to comply with the order.

The court also passed a new order relating to the implementation of nutrition related schemes. These include the Employment Assurance Scheme, the Mid Day Meal scheme, the integrated Child Development Scheme, the Antyodaya programme, old age pension scheme, and the public distribution system, among others. The Court ordered the Chief Secretaries of all states to send a report on the implementation of these schemes to the Cabinet Secretary within three weeks, and to give reasons for inadequate implementation if applicable. The central government, for its part, has been directed to "take necessary action in order to ensure the implementation of the said schemes."

Meanwhile, the court has directed all state governments" to forthwith lift their entire allocation of foodgrain from the central government under various schemes and disburse the same in accordance with these schemes". In addition, food for work programmes are to be implemented in all scarcity areas by the concerned states.

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