A Legal Analysis on Right to Food and Duty of the State: Bangladesh Perspective

Due to COVID-19 pandemic, millions of low-income people around the globe are facing the problem of food security. The current challenge is ensuring that people are not dying of hunger. In light of current situations, a question may arise whether people have “right to food” under the legal mechanism of Bangladesh.

The necessity of ensuring food for everyone is now realized, especially after the Second World War. In 1948, the Universal Declaration on Human Rights recognized the right to food as the criterion of “standard living”. As Article 25 provides, “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food”. Since then, in the second half of the 20th Century, this right has held a place in the constitutions of many newly created countries. This is also included in the International Covenant on Economic, Social and Cultural Rights, 1966. Article 11.1 provides-“the right of everyone to an adequate standard of living for himself and his family, including adequate food” and “the fundamental right of everyone to be free from hunger”. Hence, the Convention creates an obligation for its member states to ensure the right to food for their citizens. As Bangladesh is a member state (ratified the Convention on 6 September 2000) of this Convention, it should comply with the aforesaid Article. Moreover, Article 25 of the Constitution of the People’s Republic of Bangladesh provides that the State has to respect international law and principles. Ensuring the right to food is an international and constitutional obligation for Bangladesh.

However, the constitution of Bangladesh separately articulated provisions related to food. But it has not enumerated the provision of the necessity of food as a right of people but as a duty of the state. The provision related to the necessity of food is included in the chapter of the fundamental principles of state policy not within the chapter of fundamental rights. Article 15 is the provision of fundamental necessities that provides; “It shall be a fundamental responsibility of the State to attain, through planned economic growth, a constant increase of productive forces and a steady improvement in the material and cultural standard of living of the people, in order to secure to its citizens-

• the provision of the fundamental necessities of life, including food, clothing, shelter, education and medical care”…

Thus, the Constitution of Bangladesh considered this socio-economic right just as a duty of the state which is not judicially enforceable. The Constitution does not include the right to food as a right in the part of the fundamental rights, maybe because of the state’s economic instability at the time of framing it. However, the current economic condition is much better than the year when the constitution was framed. Thus, the state may afford the right to food as a fundamental right.  By the time some other socio-economic rights have been upheld by the apex court of Bangladesh. Supreme Court of Bangladesh entertained the socio-economic right in the case of ‘Dr. Mohiuddin farooq vs Bangladesh and others’^[1], and also, in the case of ‘Ain o Salish Kendra vs. Government of Bangladesh’^[2]. 

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It can be argued that since the Constitution of Bangladesh considers the right to life as a right through Article 32, the right to food is a part of the right to life as well. Article 32 provides: “no person shall be deprived of life or personal liberty save in accordance with law”. This Article has a similarity with Article 21 of the Indian Constitution which is also within the part of the directive principles. The said Article provides- “No person shall be deprived of his life or personal liberty except according to the procedure established by law”. India also enshrined the food-related provision in Article 47 which is within the part of the directive principles of its Constitution. The Constitution of India also made that provision non-justiciable by Article 37 that provides: “The provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws”. Hence, Bangladesh and India are on the same footing from the end of constitutional duty and non-enforceability of socio-economic rights by judicial proceeding. But, judicial interpretation of the Indian Supreme Court upheld that right to food is a part of the right to life in the prominent case of Kishen Pattnayak & another vs. State of Orissa^[3]. India is now one step ahead of Bangladesh by adaptation of laws related to the right to food namely the National Aspect of Food Security Act, 2013. Not only India some other compatible countries with Bangladesh adopted laws related to the right to food including Brazil, Ecuador, El Salvador, Guatemala, Indonesia, etc. as referred to in the report of Bangladesh Law Commission^[4].

Before going to an argument regarding whether the State is responsible for providing food to people or not, we need to focus on government current actions regarding it. The Government is striving to provide food to the people who are in crisis. Honorable Prime Minister said, “the government will obtain 21 lakh metric tons of food which will be used for the purpose of food security under current situations”^[5].The government may face some challenges in activities related to ensuring food safety because of the absence of legislation related to it. Numbers of laws related to the right to food are in force but does not cover all related issues of right to food within their provisions. This is found as lacuna by the law commission of Bangladesh”^[6]. 

There is a misconception about the right to food is that; the Government has an obligation to provide food to everyone who wants it. The view can be corrected from the special Rapporteur on the Right to Food 2012 provided by the Food and Agriculture Organization of the United Nation that, “the right to food is not a right to a minimum ration of calories, proteins, and other specific nutrients, or a right to be fed. It is about being guaranteed the right to feed oneself, which requires not only that food is available – that the ratio of production to the population is sufficient – but also that it is accessible – i.e., that each household either has the means to produce or buy its own food. However, if individuals are deprived of access to food for reasons beyond their control, for instance, because of an armed conflict, natural disaster or because they are in detention, recognition of the right to life obliges States to provide them with sufficient food for their survival”. It is clear from the statement that the right to food can be claimed by those who or provided to them who – are in need of food because of the inability to buy and the situation is beyond their control. Hence, every citizen of the country is not entitled to food from the government but those who are in need.

Providing food during a crisis is not a new job for the government since we usually witness the problem at the time of natural disasters. In such a disaster, the government plays a vital role maybe because of repeatedly facing the same problem. Currently probable food crises may appear with a different face than other forms of crises. Unlike natural disasters, it may not push all people in the food crisis situation at once in the same area because of the different economic status of people. Thus, the government has to fix which groups of people are in actual crisis of food. Another problem may arise if a family collects more ration than allotted for each family. For organized distributions, if we would have a ration card policy like India then the government might distribute the food more easily than now.

In Bangladesh, a number of laws including constitutions provided provisions related to food. But these laws are not sufficiently articulated provisions for the right to food. The report of Bangladesh Law Commission enlisted more than 30 existing laws related to food but found insufficient provisions for right to food; as a result, the Commission suggested a new law to overcome the lacuna^[7]. Hence, Bangladesh requires an Act to ensure the food and nutritional security for its citizens especially, for those who are in a crisis of food for the situations beyond their control.

^[1]Dr Mohiuddin farooq vs Bangladesh and others’ [1996] 48 DLR 438  SC (HCD)

^[2]Ain o Salish Kendra Vs Government of Bangladesh [1999] 19 BLD 489  SC (HCD)

^[3]Kishen Pattnayak & another Vs State of Orissa [1989] 57 AIR 677 (SC)

^[4]Bangladesh Law Commission, A Study on Ground Situation of Right to Food in Bangladesh (May, 2015), p.19

^[5]BSS, ‘Govt to procure 21 lakh MT food grains this season: PM’ The Daily Star (Dhaka, 20 April, 2020)  <https://www.thedailystar.net/country/ensure-food-security-in-bangladesh-govt- procure-21-lakh-mt-food-grains-1894876> [Accessed 10 May 2020].

^[6]Bangladesh Law Commission, A Study on Ground Situation of Right to Food in Bangladesh (May, 2015), Executive summary

^[7]Bangladesh Law Commission, A Study on Ground Situation of Right to Food in Bangladesh (May, 2015), P. 16