‘The Food Must Reach the Hungry’: Lessons from Judicial Enforcement of Right to Food in India

1 Introduction

The world is entangled in the cobwebs of abysmal poverty and undernutrition; and eradicating this in all forms and dimensions constitute the core agenda of the Sustainable Development Goals 2030 (SDG 2.1, 2.2). Right to food is a ‘global basic right’ or more specifically, forms part of ‘subsistence rights’ which is the necessary precondition for full enjoyment of any other rights including liberty rights (Ashford 2011). In the context of prevalence of largescale hunger and malnutrition, identifying and prioritization of ‘Basic Needs’ assumes special significance. Hence, a major shift in normative framework and public policy can only address the prevailing conditions of poverty and destitution (Pandey 2008). Judicialisation of the right to food across jurisdiction and burgeoning case laws depicts that adjudicatory bodies nowadays play a sentinel role for protection and enforcement of the right through legal tools and principles of interpretation (Langford 2008). The Constitutional Courts of India have paved new milestones for socio-economic rights adjudication on right to food which has led to various trans-judicial influences in other jurisdictions (Thiruvengadam 2007). However, courts often face the criticisms of democratic legitimacy, institutional capacity to address polycentric adjudication and judicial overreach. This is due to the fact that the courts while adjudicating the basic entitlement to individual engages itself with issues having several policy implications.

This study focuses on the evolution of right to food jurisprudence from non-enforceable Directive Principles to enforceable Fundamental Right by analysing the landmark decision of the Indian Supreme Court in Right to food case (The PUCL Case) which has set off the cascade of judicial activism. The article explores how the approach of the Constitutional Courts of India has negated the normative concerns of democratic legitimacy and polycentricity to secure basic entitlement of food to people. Such an activist approach falls within the ambit of judicial review whereby courts secures fundamental rights of citizens and thereby is not judicial overreach. Lastly, the author concludes that Courts can be the vehicle for enforcing the right to food and bring social change through a new form of adjudicatory leadership that is ‘implementation centric’ and thereby be a catalyst for new policy reforms and statutory regimes for enforcement of basic welfare rights.

The article is divided into five sections. The first section of the article introduces the right to food as a basic right of the individuals. The Section 2 deals with the normative content of right to food and its constitutional position as Directive Principles of State Policy under Indian Constitution. Section 3 deals with how activism by the Courts especially through the development of Public Interest Litigation has been used as a tool to address the rights of the citizens including the poor and vulnerable. Section 4 makes a detailed analysis of the evolution of right to food jurisprudence in India in context of the landmark judgment of the PUCL v. Union of India (The Right to Food Case) which held that right to food is a fundamental right of all individuals and is protected under right to life. Section 5 of this article focuses on various development post PUCL decision including the enactment of the National Food Security Act, 2013 and various other significant judgements of the Indian Supreme Court.

2 Normative Content of the Right to Food

Understanding the normative content of right to food becomes very pertinent before looking into the dimensions of its implementation. Right to food signifies the wider connotation of right to food security, which not only entails freedom from hunger and malnutrition, but also includes access to nutritious food. Availability, accessibility, freedom from adverse substance and fulfilment of the dietary requirements forms the core content of right to food (General Comment 12, CESCR 1999). Right to food cannot be realised in isolation from other socio-economic rights like right to education, right to health, etc., therefore, this involves a matter of polycentric adjudication (Dreze 2005). Any adjudication on the right to food will have multiple dimensions and also necessary implications on realisation of other related rights.

Professor Henry Shue’s work is insightful in understanding the standards of judicial scrutiny through “tripartite duties model” for all human rights. According to him, all human rights breaches give rise to various obligations i.e. primary obligation ‘to respect’; secondary obligation ‘to protect’ and tertiary obligation ‘to fulfil’. The States have the duty ‘to respect’ which implies that the State shall abstain from taking measures to prevent access to adequate food; ‘to protect’ signifies various duties of the State to prevent others from encroachment to right to adequate food. Lastly, the obligation ‘to fulfil’ includes ‘to facilitate’ i.e. State should strengthen access and utilisation of resources to ensure livelihood including food security and ‘to provide’ i.e. to provide the right directly to the individual which includes the individuals who are the victims of natural and other disasters (Palmer 2007; General Comment 12, para 15). Right to food is a socio-economic right that requires ‘progressive realisation’ where the State parties can fulfil its obligation depending on the availability of resources. However, the Committee for Economic, Social and Cultural Rights has noted that it is incumbent on the State parties to fulfil the minimum core obligations i.e. minimum essential levels of each of the rights is obligatory upon every State party to fulfil it ^[1] (General Comment 3, CESCR 1991). For example, if a significant number of individuals are deprived of essential food stuffs in a State, then the State party can be said to violate its minimum core obligations.

The right not to be hungry may not be protected in concrete or institutional form in a country but there may be a class of meta rights not to be hungry (Sen 1982). Amartya Sen defines a meta right to freedom from hunger as “right to such a policy that would rapidly lead to freedom from such hunger exist”. Meta rights which especially become more relevant for countries where policies to achieve the goal of abolition of hunger exist, although immediate abolition of hunger may not be possible. For Sen, Directive Principles of State Policies under the Indian Constitution, is a perfect example of a class of meta rights. The right to food have been read into constitutionally enforceable fundamental right of right to life under Article 21 of the Indian Constitution. Further, Article 39(a)^[2] and Article 47^[3] enshrined under the Directive Principles of State Policy under of Constitution of India also deals with obligation of the State to provide adequate livelihood and also raise the standard of living of the citizens.

The Directive Principles of State Policies enshrined in Part IV of the Indian Constitution are non-enforceable in any Court but they are fundamental in governance of the country and states have the duty to apply them while making the law.^[4] Though unenforceable, these principles are imperative obligations and are a set of instructions from the ultimate sovereign i.e. people and are directions to the future legislatures (Krishna Shetty 1969). Professor P. K. Tripathi while analysing the structure and importance of Article 37 argues that though the court’s jurisdiction are withdrawn to enforce the rights however, the obligatory nature of the rights have been given due emphasis in the provision itself. In light of this, it shall be unconstitutional and illegal on the part of State to ignore the principles while formulation of any law (Tripathy 1972). Making serious concerns about the nutritional crisis, Dreze states that “Indian democracy is trapped in the vicious circle of exclusion and eliticism” (Dreze 2005). Therefore, apprehending concerns for lack of people’s participation in Indian democracy due to their economic incapacity, he states that revival of concern for Directive Principles of State Policy is the need of the hour in long pedigree of socio-economic rights realisation. Both Fundamental rights and Directive Principles foster the idea of social justice and courts have read them together to implement various rights and achieve the pursuits of social justice (Singh 2014).

3 From Judicial Activism to Adjudicatory Leadership

Any legal system will fail to meet the requisite of rule of law, which is not based upon protection and recognition of basic human right such as right to food (Alston 1984). Alston argues that right to food can only be realized when a municipal law recognizes it through relevant constitutional provisions or specific legislation. Judicialisation or Justiciability of right to food has been a tool for realising and implementing right to food (Durojaye and Chilemba 2018). Judicialisation refers to the process whereby remedies can be obtained by individuals for violation of their right by the courts or appropriate adjudicatory bodies. Thus, judicialisation includes determination of whether the right has been violated or not and secondly, what remedies or measures can be taken to address such violation (FAO 2004).

Scholarly criticism against the adjudication of socio-economic right like right to food includes that courts do not have democratic legitimacy and institutional capacity to adjudicate socio-economic rights. The democratic objection is based on the argument that it is anti-democratic for the courts to adjudicate socio-economic rights. The courts enter the domain of democratically elected legislature and venture into ‘judicial policy making’ (Christiansen 2007). The other concern of polycentric adjudication is based on the criticism that courts face institutional bottlenecks for adjudicating matters involving competing policy choices and unpredictable economic implications (Fuller 1978). Polycentric issues involve matters which are multi centered and have complex repercussions, especially matters involving resource allocation. Nowadays, the powers of the courts to review acts of legislatures and executives in modern constitutional democracies is a fact (Palmer 2007). Moreover, constitutional courts across the world nowadays resolve complex polycentric issues and provide relief to citizens which can be clearly inferred in cases involving public law adjudication, remarkably the development of public interest litigation (Desai and Murlidhar 2000).

The development of Public Interest Litigation (PIL) have transformed the role of Courts in protection and enforcement of human rights and now Courts acts as a ‘vehicle for social conversation between the co-equal citizens’ (Fredman 2008). Fredman discusses that Courts reinforce their democratic participation and fulfil their auxiliary role in accountability, participation and equality. The relaxation of locus standii (where any public-spirited individual can seek redressal from Court) and the introduction of ‘epistolary jurisdiction’ (letter addressed to the Supreme Court directly regarding violation of fundamental right) were two significant processual innovations of the Supreme Court to broaden the access to justice for poor through judicial activism (Bhagwati 1985). From its inception, PIL has been a voice for the voiceless and poor citizens who due to ‘lack of awareness, assertiveness and resources are not able to seek the judicial redress’.^[5] PIL not only protects the interest of disadvantaged groups but also stresses on issues of collective action (Balakrishnan 2009). Such a model of PIL in India strengthens the idea of liberal democracy by recognition of individual rights through collective action (Holladay 2012). Through PIL, courts have addressed the various issues including health,^[6] shelter,^[7] underaged labourers and minimum wages to labourers,^[8] plight of under-trial prisoners,^[9] environmental protection,^[10] gender justice^[11] and livelihood.^[12] Article 21 of the Indian Constitution, enunciating right to life was expansively interpreted by the Supreme Court and it includes right to ‘live with human dignity’.^[13] The Supreme Court of India in one of its landmark decision^[14] observed that, “The right to life 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 .… and also the right to carry on functions and activities as constitute the bare minimum expression of human self.” Similarly, in another significant decision,^[15] the Supreme Court stated that, “R ight to live guaranteed in any civilised society implies the right to food, water, decent environment education, medical care and shelter. These are basic human rights known to any civilised society …”. These judgements of the Supreme Court although did not directly dealt with the issues of food security, but these pronouncements led to the jurisprudential foundation of recognition of right to food under the Constitution.

This response of the Indian Supreme Court to entitle basic minimal needs has created new governance of policy regimes which reflects the macro level adjudicatory leadership of the Courts (Baxi 2014). Through adjudicatory leadership, Courts have manifested a new social movement by fostering creative jurisprudence on rights entitlement and by creating dialogue between social movement and human right activists. This is classified as transformative or visionary conception of adjudicatory leadership which finds prominence in the hyper-globalising world more specifically in the Global South (Baxi 2011). Prof. Baxi points out that firstly, that a new style of adjudicatory leadership emerged in the Global South while addressing the human rights issues and thus, this form of leadership has been transformative in human rights adjudication. Secondly, the idea of constitutionalism undergoes change by interaction between activist adjudicatory leadership and citizen practices like social movements or human rights activism. This resonates with the popular terminology ‘Demosprudence’ in comparative constitutional studies which refers to the practices of the Court that catalyses the legal change, including constitutional change through social movements (Guinier and Torres 2014). Through demosprudential judging, courts engage in participatory democracy and popular constitutionalism which is more prominently reflected in the South Africa’s Constitutional Courts adjudication of socio-economic rights (Ray 2011). Therefore, Prof. Sathe aptly notes that the ‘concept of justiciability went a metamorphosis’ whereby now it includes those matters of governance which were not included within traditional notions of justiciability (Sathe 2003).

4 The Right to Food Case – The New Horizon of an Enforceable Right

The People’s Union for Civil Society (PUCL) v. Union of India ^[16] popularly known as the Right to Food case has galvanised the right to food movement and translated right to food into a legal entitlement. Judicial action can also bring about social change and be a catalyst in social mobilization, which is best reflected in the judicial response in the PUCL decision (Brierley 2019). In fact, PUCL case has been one of the longest running continuing mandamus case expanding to the address multiple issues of food security (Birchfield and Corsi 2010). Through continuing mandamus, courts retain supervisory jurisdiction and give necessary orders till final disposal of a case. Prior to the PUCL decision, one of the early cases that came before Supreme Court was Kishen Pattnayak v. Union of India.^[17] This case highlighted the apathy of people of Kalahandi district in the State of Odisha who suffered due to extreme poverty and starvation deaths. A letter written by two activists Kishen Pattnayak and Kapil Narayan Tiwary was entertained as Public Interest Litigation by the Supreme Court.^[18] It was alleged that people of above-mentioned districts were engaged in distress sale of labour and paddy and were also the victims of ‘chill penury’ i.e. the poor people experiencing poverty were forced to sell even their children. Another writ petition, Indian People Font v. State of Orissa ^[19] was also filed in the Supreme Court which alleged negligence of the administration and government for their failure to prevent starvation deaths and drought diseases in the famine prevalent Kalahandi and Koraput districts of State of Orissa. Though the Court did not give any substantial relief to both the petitioners, it was stated that “the cases of starvation deaths cannot be ruled out altogether” and prompt action by the State on existing welfare measures would soon improve the conditions of the people of both the districts. Some of the directions of the Court included proper implemention of the Orissa Relief Code and reconstitution of the Natural Calamities Committee (to include members for voluntary organisations and social work) which would not only monitor starvation but also look into overall welfare of the people.

The decision of the Supreme Court in Kishen Pattnayak case did not explicitly establish the right to food, but jurisprudentially led the foundation of the State’s role and responsibility in cases of hunger and starvation. This judgement formed the basis of several policy changes in the State of Odisha and significantly received attention of the public and media (Currie 2000). Meanwhile several petitions were filed in the High Court of Orissa which affirmed the suffering of the people due to droughts and crop failure that resulted in starvation deaths, child sale, forced sale of grains and forced migration.^[20] The High Court appointed a Commission which established the failure of Government welfare and relief administration.^[21]

A decade after the judgement of the Kishen Pattnayak Case, in 2001, a writ petition was filed under Article 32 of the Constitution of India by a voluntary organization named People’s Union of Civil Liberties (PUCL).^[22] The petition raised the issues regarding State negligence due to breakdown of the Public Distribution System and non-implementation of various schemes in drought affected areas of various parts of the country. The petition was filed to address the alarming issue of starvation deaths due to the non-availability of food, especially in the drought affected areas. There was a complete failure in functioning of Public Distribution System, which is responsible to procure, store and distribute food grains. The unscientific design of the PDS did not meet the nutritional requirements though there was surplus availability of food grains more than the required buffer stocks in the godowns of the Food Corporation of India (FCI). Though the stock of food grains in the godowns was overflowing, rotting and even eaten by the rodents, the grains were not distributed to the starving and malnourished people to places which were almost located in the range of 75 km of the severely drought affected area. Ineffectiveness in implementation of the Famine codes, welfare schemes by various States, alarming under-nutrition levels and large-scale unemployment in drought affected areas were also several issues which were raised in the petition. The petitioners argued that welfare of the people is of paramount importance and State has obligation to safeguard the life and personal liberty of the people enshrined in Article 21. Moreover, financial constraints cannot be the ground for a State to abstain from its constitutional obligations.

While adjudicating the matter, the Supreme Court had to address the following issues: firstly, whether ‘right to life’ includes that poor and starving people are entitled to food grains free of cost from the surplus stocks which were lying unused? Secondly, whether right to food is an integral part of right to life under Article 21 of the Constitution? Third, whether right to food includes the State’s duty to provide food in drought prevalent situations, to those affected by drought and also to people who cannot purchase food? The Supreme Court in its very first interim order affirmed that food is of utmost importance specially to those who are in starvation, pregnant, lactating women, destitute children and who are not having adequate funds to procure them. The situation in the present case is that ‘amongst plenty there is scarcity’. This approach of the Supreme Court depicts that freedom from hunger is not just a matter of right but are ‘entitlements’ and corroborates Sen’s assertion that starvation and famines in any legal system is caused because of the fact that people are not entitled to adequate means of survival in a legal system (Sen 1982). The Supreme Court through its interim orders converted eight food related schemes^[23] into legal entitlement and directed the state government for full compliance (Jaishankar and Dreze 2005). The emphasis was made that the poor, destitute and weaker sections of the society should not suffer from hunger and starvation. Stating that, though it is matter of policy concern and prime responsibility of the government to prevent hunger and starvation, the Court is concerned to ensure that the food grains in abundance in the FCI godowns are not dumped and eaten by rats. Court therefore stated that, “Mere schemes without any implementation are of no use. What is important is that the food must reach the hungry”.^[24]

More prominently, the Court directed that States shall provide nutritious cooked meals to every child (with minimum calorie requirement of 300 calories and 8–12 g of protein for a minimum 200 days) in all Government and Government-aided primary schools within six months.^[25] The other directions also included FCI to ensure fair quality of food grains and extension of mid-day meal schemes even during summer vacation to drought affected areas.^[26] Apart from this, court also directed to construct kitchen sheds, improve infrastructural facilities and ensure regular inspection so that nutritious meals are provided to the children in primary schools.^[27] For monitoring and ensuring implementation of its own order, the Court appointed Commissioners through their interim orders. The Commissioners were vested with wide powers like monitoring compliance of the orders of the Court, receiving complaints and verifying them, and setting up enquiry committee.^[28] Further, ‘Assistants to the Commissioners’ and ‘Nodal Officers’ were also appointed to assist the Commissioners when required.^[29]

The Universalisation of aganwadis (Integrated Child Development Scheme Centres) and increase in number of the anganwadis under Integrated Child Development Scheme was also directed by the court. This was a specific step regarding ensuring child nutrition as targeted under ICDS as it is an integrated package for supplementary nutrition, for children below 6 years. Regular payment of pensions to senior citizens^[30] and prompt implementation of the maternity benefit entitlements^[31] were also emphasised in the interim orders. In view of prevailing drought conditions in various states, Court directed the Government to double the scale of Sampoorna Grameen Rozgar Yojna.^[32] Timely wage payment (weekly basis), payment of minimum wages, and usage of labor displacement machines to be stopped^[33] were some of the important directions of the Court to ensure employment. The protection against hunger can be ensured through assured employment, is best reflected in the court’s order. Thus, this clearly depicts that Courts have adjudicated polycentric issues in this case because while guaranteeing the basic right to food, it ventured into issues of right to work, health and education which are interlinked for implementation of the right.

The Courts also ensured accountability of State through implementation of court’s order from time to time. For continuous non-compliances by the defaulting States, the Chief Secretaries of the particular State was made responsible. Gramsabha and Grampanchayat were empowered to conduct social audit and report cases of non-compliance.^[34] Court also specifically directed that no scheme shall be discontinued or restricted without its approval. All the local women self-help groups and Mahila Mandals could also supply and supervise the distribution of supplementary foods in ICDS centres.^[35] Through the participation of self-help groups and Gram Sabha, local governance was strengthened. This depicts that the Court engaged itself in participatory democracy where Courts, local bodies and citizens were involved together for implementation of various schemes and grievance redressal of the citizens. Such a model of adjudication depicts the ‘triad model’ of socio-economic rights adjudication where Courts engages local bodies to ensure that right to food is implemented in reality. This becomes one of the key implementation strategies whereby defining and coordinating roles between regional and domestic actors becomes essential for implementation of socio-economic rights (Rodriguez-Garavito and Kauffman 2014). More importantly, the supervisory jurisdiction was also retained by the Court throughout the litigation to ensure timely compliance of the schemes.

5 Post PUCL Development: Implications of Court’s Decisions and Pathway of New Statutory and Policy Regime

Through judicialisation, courts have not only engaged in aspects of good governance and policy making but have ultimately strengthened the legitimacy of the institution (Mate 2013). The right to food experience shows that the Indian Supreme Court did not follow just a minimalist approach of giving declaratory order, rather the Court through its innovative remedies has passed mandatory and supervisory orders for implementation of its orders in time-bound manner. Mandatory orders require that the State should take specific actions to implement court’s order while supervisory orders requires that the State should report or act with specified time frame. Further, numerous interim orders have also been passed to provide immediate relief based on preliminary examinations of the merits of the case (Roach 2008). Through continuing mandamus (where court retains the jurisdiction over the case till implementation its orders), the Court retained its supervisory jurisdiction relating to implementation of its orders till final disposal of the case. This procedural innovation of the Court is also referred as ‘remedies without rights (Cunningham 1987). The continuing mandamus; time-bound implementation of the order, appointment of Commissioners and even defining the ambit of the policy shows how courts can craft innovative remedies for enforcing right to food. This also depicts that litigation is one of the key factors though which rights can be made enforceable and implemented by the judiciary (Kothari 2007).

It is evident that courts have been the locus of right to food struggle along with other factors like popular mobilisation, parliamentary action and policy reforms to safeguard right to food in practice (Hertel 2016). Hertel argues that legal reforms may not be sufficient but are necessary conditions for safeguarding right to food and transforming public policy implementation. The resultant of the Supreme Court’s order introduced mid-day meal schemes in various government and government aided schools and also in a way, facilitated the implementation of the right to work which is a pre-condition for food security. This responsiveness of the Court along with mobilization of civil society organisations marked the return of social rights agenda (Chandhoke 2017).

In fact, the PUCL Case along with the right to food campaign augmented the enactment of the National Food Security Act (NSFA), 2013. More notably, most of the Court’s order forms the essential part of the provisions of this Act (FAO 2014). FAO notes that the enactment of NFSA, 2013 has been a milestone for realisation of right to Food India. The Preamble to the National Food Security Act (NSFA), 2013 provides that, “An Act to provide for food and nutritional security in human life cycle approach, by ensuring access to adequate quantity of quality food at affordable prices to people to live a life with dignity and for matters connected therewith or incidental thereto”. Some of the notable provisions include: forming of a good Public Distribution System. Under this Public Distribution System, persons belonging to the eligible households can receive food grains at subsidized prices. Special Provisions are made in the Act for children, pregnant and lactating woman. The Act states that free of charge meal shall be provided to pregnant and lactating women during pregnancy and six months after the child birth. Similarly, special provisions for children is divided into three categories: first, children below six months, exclusive breast feeding shall be promoted. Second, children from six months to six years are entitled to free meal in local anganwadi and children from 6 to 14 years are entitled to one mid-day meal everyday a week expect holidays in all schools (Government, Government aided schools or schools run by local bodies.) Further, the Act also mandates for special provisions for children in schools that includes facilities for drinking water, sanitation and cooking meals. Also, for children suffering from Malnutrition, the Act provides that special care shall be taken for him or her. The NFSA also provides for ‘grievance redressal mechanism’ at two tier level by constitution of State Food Commission and District Grievance Redressal Officer (DGRO). The Act also mandates for displaying the list of eligible households in public domain. Door step food delivery, use of Aadhaar Card for unique identification, more emphasis to engage women, self-help groups and panchayats in distribution and delivery of food grains are also provided under the NFSA, 2013.

Hertel’s empirical study on right to food India also finds out that there has been a surge in right to food advocacy in India post PUCL Case after 2001. There has been increasingly specificity of order of the Court in PUCL Case and these orders were cited in subsequent cases to ensure that the State agencies take appropriate steps of reforms enunciated in the case. For example, Court in Kapila Hingorani v. State of Bihar ^[36] held that lack of access to food is also violation of right to food. State cannot escape its liability for non-payment of remuneration to hundreds of employees of state-owned corporations for a long period of time leading to starvation deaths. Right to food with hygienic condition is now also included under right to food and therefore, all state authorities must maintain food safety norms.^[37] In Swaraj Abhiyan v. Union of India ^[38], the Court directed that the National Food Security Act, 2013 must be implemented soon as many states have not implemented this even after more than two years of enactment of the Act. By stating that right to food is both a constitutional as well as statutory obligation, Court emphasised that fiscal constraints cannot be a reason for denial of benefits to persons in drought affected areas. The Court directed that adequate supply of food grains must be made available to the people especially in drought affected areas, calorific and nutritional requirements of the children must also be entitled. Another PIL was filed in Dipika Jagatram Sahani v. Union of India ^[39], raising the issue of non-opening of Anganwadi Centres across the Country during pandemic which affected the ‘right to food’ of the underprivileged including the women and children. It was held that it is the constitutional obligation of the State to preserve right to life and promote good health of its citizens and it is also statutory mandate to ensure this under the NFSA, 2013. Inadequacy in supply of nutritious food to citizens especially women and children is violation of their right to life, was emphasised by the Court. Further, the Court issued several directions like reopening of anganwadi centres outside the containment zones, ensuring nutritional standards as per the mandate of the NFSA, 2013 and constitution of Complaint Redressal mechanism in each district of the State. Similarly, in Re: Problems and Miseries of Migrant Labourers,^[40] it was held that non-possession of ration card cannot bar the beneficiaries to avail the benefit under the NFSA 2013 and One Nation One Ration Card scheme to be implemented. The State Government and the Union territories were directed by the Court to run community-kitchens to feed the migrant labourers.

Courts adjudication of socio-economic rights have faced criticism of ‘judicial overreach’. It is argued that there is a breach of separation of power as Courts enter into policy domain that is primarily the area of legislature and executive (Gauri 2009). However, it is pertinent to note that the recognition and protection of right to food is within the limits of constitutional text and falls within the judicial review. The constitutional jurisprudence of right to food in India offers insightful lessons that judicial enforcement of socio-economic rights can get meaningful protection within the bounds of constitutional legitimacy (McHugh 2003). The more apt reply to this criticism is the assertion of Justice Bhagwati that, judicial activism and law making function of the judiciary is an essential element of judicial process. Further, courts are guaranteeing the basic rights of individuals which are fundamental rights under the Indian Constitution. Therefore, the more important question which needs to be addressed is the kind and degree of the judicial review in adjudication of right to food.

The socio-economic rights are best protected in a legal system with a weak form of judicial review which provides an institutional mechanism for identification of such rights (Tushnet 2008). A Weak form of review gives space for legislature and executive to respond and revise the constitutional rulings, thereby bridging the gap between democratic self-governance and constitutionalism. Tushnet argues that for the enforcement of socio-economic rights, countries like India, Ireland and South Africa have used weak form of judicial review and thereby, have been able to enforce strong substantive rights. India exhibits ‘conditional social rights’ approach which focuses on implementation of the measures undertaken by state and do not focus on nature of measures (Khosla 2010). A more intense form of judicial review is reflected in cases of adjudication of socio-economic rights as per the Conditional social rights model. Therefore, this form of review depicts a ‘remedy centric approach’ of constitutional courts, which have moved beyond the traditional concept of declaration of right and have rather looked into the implementation of rights through innovative remedies. The court’s approach in implementation of the right has been marked by engagement of local bodies, women self-help groups and this has led to formation of a ‘triad model’ of socio-economic rights adjudication where the interaction of the courts, local bodies and citizens together lead to implementation of rights.

6 Conclusion

Judicialisation of right to food in India reflects that courts can catalyse public policy transformation and secure basic right to food. Other important factors like social mobilisation, specific legislative enactment also acts as a collative force in the implementation of rights. Cynical criticism about judicial overreach, institutional competence in engaging itself with policy formation or popular connotation of Ran Hirchsl’s ‘Juristrocracy’ (Hirschl 2004) whereby court engages in constitutionalisation of rights due to strategic power diffusion from hegemonic political elites to judiciary becomes less relevant. A more apt view of Dworkin can be a better response where Courts fundamentally functions as effectively as elected representatives to treat people as equals in a democracy and engages itself in participatory democracy through adjudication. In fact, this form of judicial activism where Court responds to basic needs of poor and downtrodden through recognition of right to food depicts a classic example of adjudicatory leadership and builds a new structural foundation of India’s demosprudence where Courts, local bodies and citizens interact to make the right effective. Therefore, the implementation of right to food is possible in reality when the right centric approach is qualified with judicial response to food security. This ‘triad’ model of adjudication of right to food can be an example for adjudication in other jurisdictions and provide better insights for research in comparative constitutional law and human rights.