150 Human Rights and Basic Needs

The persistent denial of basic human needs to a substantially large

RE-ORIENTING THE 'RIGHTS' DISCOURSE section of population of the poverty ridden states leading to the
TO BASIC HUMAN NEEDS conditions of distress, destitution and ultimate starvation are so well
B.B. Pande* documented in the aforesaid Order of the National Human Rights
Commission that the crisis arising out of unmet basic human needs
Person living in conditions of poverty and hunger in areas such
requires no better evidence. Also from the Order, at least, three inferences
as the KBK1 districts have often been found to be suffering from
can be easily drawn: First, there is a increasing realisation at the policy
prolonged hunger and malnutrition. Even when their deaths cannot,
levels that the social conditions of poverty and destitution can no more
in strictly clinical terms, be related to starvation, the tragic reality
be ignored, Second, that poverty and destitution are growlingly seen as
remains that they often die of prolonged mal-nutrition and the
man-made social conditions that require deliberate human efforts for
continuum of distress which has inter alia, rendered them unable to
their reversal and Third, that the first step to counter the conditions of
withstand common diseases such as malaria and diarrhoea. The
poverty and destitution is to effect a paradigm shift in thinking leading
situation is all the more painful in view of the fact that granaries of Food
to changes in public policy and normative framework. In the light of
Corporation of India are overflowing - matter that is, at present, under
these inferences the ongoing discussion would attempt to assess the
consideration of the Supreme Court.
reality of basic needs recognition within the legal rights and human
... The Commission also agrees with the petitioner that destitution
rights regimes in India.
and the continuum of distress should be viewed as the necessary
condition for prevalence of starvation. There is thus a concomitant need I. Identification and Prioritization of Basic Human Needs
The satisfaction of human needs is widely accepted as an ideal for
for a paradigm shift in public policies and the relief codes in this respect.
any human society. However, in view of the stages of development and
.... There is a demand that every effort be made by the state and
ideological preferences there may be marked difference between one
by civil society to eradicate the poverty and hunger that constitute
society and another on the issue of perception of human needs, priorities
286

an affront to the dignity and worth of human person. First and

accorded to human needs, and the techniques deployed for securing
foremost among the United Nations Millennium Development
them. Though human needs issues have been traditionally explored
Goals (MDG) is the pledge made by all heads of the State and
under the diverse disciplines such as medicine, psychology, economics,
Government to halve, by the year 2015, the proportion of the world's
political science, but in the recent times human needs have increasingly
poor people who suffer from hunger ... The prevalence of extreme
attracted the attention of legal scholars, for whom needs is the starting
poverty and hunger is unconscionable in this day and age, for not only does
point for more meaningful enquiries in the field of legal rights, human
it militate against respect for human rights, but it also undermines the
rights, social justice, individual liberty, equality debates etc. In this
prospects of peace and harmony within a state.
context the food need has acquired a distinct status, in some of the recent
(Extracted from National Human Rights Commission Order on case
researches and studies in the field of International Law and
No. 37/3/97-LD dated January 17, 2003. Coram: Justice Shri J.S. Verma,
Jurisprudence.2
Chairperson, Justice Sujata Manohar and Shri Nirender Dayal, Members;
1. Identification of Human Needs
emphasis supplied).
Human needs or an existential urge or drive may be understood as
a physiological or social requirement of the body or the mind which is
considered essential for the maintenance of human life. In respect of
* Former Professor of Law, University of Delhi.

1. KBK relates to Kalahandi, Bolangir and Korapur districts of the State of Orissa.
Perhaps the Poorest three districts in the country.
2. Alston, P. et al. (Eds.), The Right to Food, Int. Studies on human Rights,
149 Netherlands Institute of Human Rights, Martinus Nijhoffs, 1984; Sen, Amartya
"The Right Not To Be Hungry", Contemporary, Philosophy - A New Survey, Vol.
2, pp. 343-360; The Limburg Principles on the Implementation of the Int. Covenant
on Economic, Social and Cultural Rights (1986) and the Masstricht Guidelines on
Violations of Economic, Social and Cultural Rights (1997).
 Re-orienting the 'Rights' Discourse to Basic Human Needs 151 152 Human Rights and Basic Needs

physiological or homeostatic needs the biological sciences are more physiological as well as social import and in a way, preparing an agenda
unanimous and precise in giving scientific information regarding the of basic human needs. One of the earliest thinking about basic human
essential needs relating to general hunger and specific food appetites, needs can be found in Buddhist writings, which ordained that even for
thirst, respiration, constant internal temperature and sleep, rest after a person who joins the ascetic order certain basic needs known as
fatigue and work after rest etc. In a recent study David Braybrook3 has Chhatupacchay, including within its fold Pindpat (food), Chivar (clothes),
described the bodily needs as those based on physical functioning and Sensan (shelter) and Gilanapachhaya Bhashaya Parikhhara (medical services)
listed the need to have life supporting relations with the environment on ought to be provided.5
the top, followed by the need to food and water, and need to excrete, the The United Nations6 has identified the following as the basic human
need for periodic rest (including sleep) and the need to keep the body survival needs: (i) Nutrition (ii) shelter (iii) Health (iv) Education (v)
intact in other ways. Leisure (vi) Security (Physical safety and economic security) and (vii)
The identification of social, learnt or acquired human needs proves Environment. Similarly, the International Labour organisation has
much more problematic and controversial, not only because such needs included in their scheme of material basic needs certain minimum levels
are strongly influenced by the ideological considerations but also on of private consumption of food, such as pure water, sanitation, public
account of a close association of such needs with the subjective transport and health and educational facilities etc.7
preference and abilities of the claimants. Furthermore, as understood by There are societies that lack resource for providing all the basic
the Marxists, these needs can either be 'true' or 'false', depending upon needs at a time. However, in some societies even the actualization of
the level of the. critical examination. However, despite such priority basic human need such as food, posses serious resource and
disagreements and controversies it is still possible to broadly identify political will problems. The question arises on what basis one need is to
need for companionship, education, social acceptance and recognition, be preferred over the others? Similarly, there is a strong view-point that
sexual activity, freedom from harassment and recreation etc. as is opposed to the state or the international agencies taking up the task of
prominent 'social function' needs. Karl Marx described these as species fulfilling all the basic needs: Will it not lead to an undesirable
287

needs, which include primarily the need for solidarity relations dependency and unreasonable assumption of power on the part of the
(companionship and communication) and need to perform productive state? Which of the basic needs can be fulfilled without such undesirable
work. Some of the recent writings on social needs have emphasised side-effects? Perhaps the best answer to some of these issues can be
equality, access to justice and removal of social stigma like untouchability found in the writings of Abraham Maslow8 and Christin Bay.9 Maslow
as the prominent aspects of social needs.4 The latest addition in the was the first to propound a theory of hierarchy of human needs into
catalogue of social needs is the developmental need, which is described lower level needs and the higher level needs which asserts that higher
as the key need, that subsumes many others. needs, arise only after a reasonable satisfaction of the lower needs.
2. Prioritizing Human Needs Similarly, Bay says 'New and Higher' motives are bom only as more
Any programme of social action based on human needs has to basic and essential motives receive satisfaction and the individual takes
arrange the vast variety of human needs in some kind of ranking order. their satisfaction for granted. The views of Maslow and Bay find ample
The idea of labelling certain human needs as basic and the rest as non- support in the alienated lives of the poorest sections of our society too,
basic, implies not only resort to a ranking order but a conscious act of
preferring some over the other. The arrangement of needs according to
rank helps in better identification and also fixing of social priorities for 5. Rhys, Davids (ed and trans.) Mahavaga - Vinayapitaka, Pali Text society, London
1980).
various human needs. The concept of basic human needs involves
drawing a list of foundational or essential human needs of both, 6. The list has been formulated by J.F. Drewnowski and discussed elaborately in
David Braybrook, op.cit., pp. 28-29.
7. See Sandbrook, Richard, The Politics of Basic Needs, Heineman (1982), 7-16.

8. Maslow, Abraham, "A Theory of Human Motivation", Psychological Review, Vol.

3. Braybrook, David, Meeting Needs, Princeton University Press (1987). 30 (1943).
4. D. Conrad, "The Human Rights to Basic Necessities of Life", Vol. 11 and 12, Delhi 9. Bay, Christian, "Needs, Wants and Political Legitimacy, Canadian Journal of
Law Review, 1981-82, pp. 1-38. Political Science, Vol. 1 No. 3, (1968).
 Re-orienting the 'Rights' Discourse to Basic Human Needs 153 Human Rights and Basic Needs
154

those for whom many higher social needs and desires remain, by and 1. The 'Poverty Line' or the 'Consumption Level' Criterion
large, meaningless.10 Economists have used economic levels for constructing 'poverty
The idea of prioritizing human needs has assumed special line' by relating it to levels of food required for making of the minimum
significance in the wake of widespread hunger and starvation - an calorie intake for the body. Dandekar and Rath in 1971 worked out the
indicator of unfulfilled food need. It is true that food need might no more income required for buying food that would provide 2250 calories per
be a serious social problem for many of the developed societies. In the adult male would, in terms of Indian rupees at 1960-61 price level, work
words of Professor Conrad: "Issues of basic needs are no longer pressing out to be 170.8 per head in rural areas and 271.1 in urban areas. In view
in the West. In the affluent societies no one dies from starvation of the sharp decline in the purchasing power of rupee the income level
involuntarily. The prayer for "daily bread" lacks existential earnest - we for determining the 'poverty line' has gone up considerably and works
know that, at the latest, the social welfare office will provide us with the out at the 1973-74 price level to an annual household income of Rs. 6500
daily bread, if on a measured scale."11 But in the developing societies and and below ion rural areas and Rs.7300 in urban areas. 14 According to
the underdeveloped regions of the developed societies,12 the problem of such a 'poverty line' estimate in 2001, India had 26.1 percent population
distribution is still leaving many deprived even of food needs. Perhaps living Below Poverty Line, of which 190.32 million were in rural area and
this is because the exploiting sections of the society know fully well that 60.70 million in urban areas. The Below Poverty Line population presents
the fear of hunger and its associated conditions is the best means for a paradoxical picture, as the over all percentage of BPL population in the
keeping the exploited sections under control: "They most easily agree to last decade shows a marked decline, but the total numbers of poor
become bonded labour, sell their children, and agree to act as organ remained constant or increased because of the growth in the population.
donors, only when the threat of hunger and starvation looms large."13 Even more disturbing is the inter-regional and state-wise variation, with
the highest percentage of Below Poverty Line population of 47.15 percent
II. Locating the Basic Need Seeking Population
in Orissa, 42.60 percent in Bihar and 31.65 percent in U.P.
Talking of basic human needs at an abstract level serves little
Yet another significant fact regarding Below Poverty Line
practical purpose. The fact of the different sections of the vulnerable
288

Populadon was that even amongst the poor there were further stratas
population suffering on account of diverse disabilities requires matching
which according to estimate of Operations Research Group, Baroda
particular basic needs of the relevant dehumanised population. In this
(1995)15 could be described as follows:
way basic need discussion and action can be related to a specific weaker
Rs. 6500-5001 : Poor
section-like the scheduled casts, tribals, landless labour, bonded labour
Rs. 5000-3501 : Very Poor
slums dweller, homeless, women and children etc. and the available
resources deployed in caring for the needs of the 'most needy' groups. Rs. 3500-2251 : Very Very Poor
Rs. 2250-Below : Destitute
However, in a recent Below Poverty Line assessment in Census
2001, the government has revised its methodology that is based on 13
10. A study of pavement dwellers in Calcutta revealed that for the absolute destitute scorable socio-economic indicators including operational holding of land,
section amongst the pavement dwellers the values of the well-off society by and housing, clothing, food, security, sanitation, ownership of consumer
large have little or no avail. See Jagannathan, Vijay N. and Haider animesh, "A Case
durable, literacy, labour force, means of livelihood, status of children,
Study of Pavement Dwellers in Calcutta" Economic and Political weekly (Feb. 11,
1989). types of indebtedness, migration and the nature of assistance preferred.
11. Conrad, D., "The Human Right to Basic Necessities of Life", Vols. 11 & 12 Delhi
On the basis of total score each household is to be classified into "poor"
Law Review, 14 (1981-82).
12. See Particularly the account of the problem of hunger and homelessness in the U.S. 14. The U.N. in their proposed Millennium Development Goals: A compact amongst
report title as Hunger among the Homeless: A Survey of 140 Shelter, Food Stamp nations to end human poverty defines 'extreme poverty' or 'deep poverty; in terms
Participation and Recommendations, Select Committee on Hunger, U.S. House of of income poverty of less than one American dollar per head per day. The UNDP,
Representative (1987). Human Development Report 2003, Oxford University Press, New Delhi (2003) has
13. Pande, B.B. "The constitutionality of Basic Human Needs: An Ignored Area of Legal accepted such income poverty as a standard measure of poverty.
Discourse", (1989) Supreme Court Cases (Jour.) pp. 1-16 at p. 6. 15. Rao, N. Bhaskar (Ed.) India 2021, ORG, Baroda (1995).
 Re-orienting the 'Rights' Discourse to Basic Human Needs 155 156 Human Rights and Basic Needs

and "non-poor'. This new methodology would enable the ranking of each population of Madras lived in 1202 slums occupying 6% of the total area
household in a village on the poverty scale so as to present inter se of the city.20 In an affidavit filed in the Supreme Court in 1991, the state
position of each household. May be, this is a technique of making poverty of Gujarat identified that in the city of Ahmedabad there were 5 lakh
a regional issue that would be helpful in turning the gaze away from the slum dwellers or pavement dwellers out of a population of 29 lakhs. 21 IN
absolute poverty. Olga Tellis v. Bombay Municipal Corporation the Court estimated that the
2. Slum Dwellers and the Homeless population living on slums or pavements in the city of Bombay thus:
In a 1976-77 survey conducted by the National Sample Survey "They constitute nearly half the population of the city."22 Thus our
Organisation (NSSO) on "Condition of slum areas in cities", defined metropolitan towns abound with population that lacks access to housing
'undeclared' slum as "an areal unit having 25 or more katcha structures or shelter needs.
mostly of temporary nature, or 50 or more households residing mostly 3. The Shelter Need Seeking Urban Poor in Delhi
ion katcha structures, huddled together, or inhabited by persons with The urban poor in Delhi, in the context of shelter needs, have been
practically no private latrine and inadequate public latrine and water categorised by Professor E.F.N. Rebeiro23 into the following five:
facilities."16 the NSSO, in its 1993 study on shuns in India categorised (a) Core poor - Pavement dwellers, street children
slums into residential, industrial, commercial and others.17 Slums, as - Unskilled individuals in marginal lands
(b) Core poor with - Largely first and second generation semi-
observed by Working Group on Slums which submitted its report to the
some intermediate skilled settlers with families but with no
Planning Commission in May 1998, are known by different names in
poor legal rights
different cities - katras or jhuggi jhopri in Delhi, jhopad patti or chawls in
(c) Intermediate - Squatters in identified spontaneous
Mumbai, basti in Kolkata, cheris in Chennai and keris in Bangalore.
poor with some colonies
However, according to the Working Group's perception: "the basic
characteristics of slums remain the same i.e. dilapidated and infirm transitional poor - Largely second generation semi-skilled
housing structures, acute overcrowding, faulty alignment of streets, poor families/households with some legal
289

ventilation, inadequate lighting, paucity of drinking water, water-logging rights

during rains, absence of toilet facilities and non-availability of basic (d) Some transitional - Resettlement squatters in site and service
physical and social services."18 poor but mainly schemes
economically - Largely second and some third
The percentage of population living in slums in a city is inordinately
weaker sections generation skilled families/households
large. In the NCT of Delhi, of the projected population of 1.40 crores,
(EWS) with legal rights
about 30,00,000 are officially estimated as living in 6 lakh jhuggis in about
(e) Mainly EWS - Established core area slums
1,100 jhuggi jhopri clusters.19 In Madras now Chennai, the Supreme Court
Largely third generation families/
cited a report prepared by the Collector of Madras that 43% of the
households with legal rights under rent
control
16. NSSO Department of Statistics, Condition of Slum Areas in Cities, No. 290, 31st Closely related to the slum-dwellers are the 'homeless' who have no
Round, September, 1980, New Delhi. place to call their home in a city. Most of the Metropolitan Towns have
17. NSSO Department of Statistic, Slums in India, 49th Round, September 197, experienced a steep rise in the number of 'homeless', because of growing
Government of India, p. 2 yucca and kutcha structures were also explained: "A shortage of housing and urban spaces and increasing influx of migrants
pucca structure is one whose walls and roof (at least) are made of pucca materials
such as cement, concrete, over burnt bricks, stone, stone blocks, jackbroads (cement
plastered reeds), iron and other metal sheetings, timber, tiles, slate, corrugated iron,
zinc or other metal sheets, abestos cement sheet etc."
18. Planning Commission, Report of the Working Group on Slums, May 1998, 20. K. Chandra v. State of Tamil Nadu, (1985) 3 SCC 536 (539).
Government of India, p. 1.
21. Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan, (1977) 11 SCC 121 (135).
19. Affidavit filed in the Supreme court by the Deputy Commissioner, slum and JJ 22. (1985) 3 SCC 545 (555).
Department, Municipal Corporation of Delhi in the matter of Almitra H. Patel v.
23. Extracted from an unpublished article prepared in 2002.
Union of India, WP (C) 888 of 1996 dated 2-8-2000, p. 4.
 Re-orienting the 'Rights' Discourse to Basic Human Needs 157 158 Human Rights and Basic Needs

to the cities. The following table shows a region-wise distribution of III. Construction and Deconstruction of the Image of the 'Poor' or the
homeless population in the capital city of Delhi in 2001. Basic Need Seekers
The identification of the 'poor' in terms of the calorie intake
deficiency, access to a minimum level of income, ability of material
indicators of wellbeing etc., underscores a common feature of all the poor
who suffer from "extreme commodity deprivation" or "lack of material
means of subsistence." But seeing poor only in terms of their economic
or material possessions does not reveal the more crucial social or political
dimensions. Degrees of commodity deprivation or levels of lack of
material means of subsistence may be necessary for measuring the
conditions of poverty, but what is the worth or social standing of the
poor is a matter of social construction. Whether certain needs deserve to
be legally recognised? or whether certain categories of the poor or
economically weaker sections deserve to be protected through social or
legal action is a matter that is governed by complex social norms. The
issue of construction and the need to deconstruct the image of the poor,
particularly in the South Asian region, has been succinctly brought out in
a recent article by Barbara Harris-White titled as "Destitution and the
Poverty of its Politics with Special Reference to South Asia."25 Harris-white
The other basic need seeking groups in the contemporary context discusses how the economic aspect of destitution, that she describes as
can be described as follows: "Having Nothing", social aspect of destitution, that she describes as
290

(a) The Beggars and Vagrants "Being Nothing" and political aspect of destitution, that she describes as
"Having no Rights and Being Wrong" are to be differentiated from each
(b) The landless bonded labour and the unorganised labour24
other. Elaborating further on economic aspect Harris-white asserts that
(c) The child labour and street children and street prostitutes. "destitution is a threefold kind of deprivation in the "space" of income
or monetary poverty. It involves, first, the absence of assets, second,
24. In an article depicting the harsh existential realities of the plantation labour in the
eastern states, Saugar Sengupta has exposed the nexus between greedy tea garden barriers to insurance mechanisms and, third, the loss of access to income
owners and the trade union leaders whose designs of closing down twenty gardens from ones own labour"26 Even more useful for our present purpose is
and lay-off of some 10,000 workers has lead to starvation and death of a substantial Harris-White's discussion relating to social and political aspects of
members. The following table gives an idea of the proportion of workers who have destitution. What leads to disenfranchisement for the wide range of poor
faced death due to starvation:
or destitute population is brought-out aptly in this observation: "The
neglect of actual or perceived or symbolic cleanliness (as happens in
addiction); the inability to bear a (male) child; deformity or disability in
childhood; signs or symptoms of certain kinds of disease, mental illness,
or psychological state; even outward signs of extreme malnutrition or
starvation may precipitate disenfranchisement. Heroin and alcohol
addicted people or those with leprosy may even be turned away from
some religious orders and may be rejected even as objects of charity from

25. Harris-white, Barbara, "Destitution and Poverty of its Politics: With Special
Reference to South Asia", World Development (2005) Vol. 33, No. 6. pp. 881-891".
26. Harris-white, Barbara, "Destitution and Poverty of its Politics: With Special
Reference to South Asia", World Development (2005) Vol. 33, No. 6. at p. 882
 Re-orienting the 'Rights' Discourse to Basic Human Needs 159 160 Human Rights and Basic Needs

them."27 In the same vein it is further observed: "It is also that the establishment of the new world economic order. The point is tellingly
exclusion of people from exploitation is culturally legitimated; society conveyed in the Millennium Report of the Commonwealth Human
actively allows oppressive practice, and it is argued here, that the state is Rights Initiative thus: "Poverty is created. It is created by an uncaring
often complicity in this process."28 In the context of political aspect international community, governments and societies. Worsening poverty
Harris-White sees a clear-cut state bias against the poor and destitute by has resulted from discriminatory and exclusionary policies that create an
asserting that the state ensures that certain categories of people like poor inequalitable distribution of resources and prevent people from accessing
and destitute or expendable and really expended and brought down to a the benefits of development. In our own times poverty has increased and
state of a non-citizen who has no rights, therefore, while arguing for the intensified under national and international economic policies that are
recognition of basic needs as rights or advocating for the rights of the now encapsulated in the concept, of globalization, whether they are
poor or destitute has to begin with reversing the social and political bias structural, adjustment programs. (SAPs), or the subordination of national
against them. We would require to de-construct the images and re- economies to the unchecked interests of global capital."30
construct it in terms of the civilized international and constitutional Once the accountability debate is resolved and the state/society is
norms. held, more or les accountable for meeting needs, the focus shifts to the
IV. Rationalizing Accountability for Unmet Basic Needs choice of the measures. What kind of obligation would be most
The issue of accountability lies at the root of the formal as well as the appropriate for achieving the objective? Whether the state should fulfill
informal strategies for meeting basic human needs. A society that holds the needs through administrative schemes and programmes relating to
divine destiny or the past Karma responsible for the existential plight of food, shelter, medical care etc. or the need claimants ought to be
the poor and the needy sections would feel neither morally nor socially conferred legal entitlements relating to basic human needs? In the
bound to meet the needs or the basic necessities of the fellow beings. But modem societies the strategy of rights—both legal right and human
with the growing awareness of the linkages between the socio-economic rights - is recognised as the most effective measure for accessing the need
systems and the human conditions the societies are increasingly claims of the under-privileged sections of the society.
291

accepting their role in fulfilling basic need claims. This, leads atleast at V. Re-Visiting the Legal Rights Discourse from Basic Need Viewpoint
the level of ideals, to two, accountability models. The fist that makes The inclusion or exclusion of basic human needs in the legal rights
individual member more accountable for his plight and the society or the or the human rights discourse can be understood in terms of the two,
state less accountable and the second that makes individual less almost opposite, approaches. The First approach assumes that basic
accountable and the society or the state more accountable for the human needs have always been an integral part of the human rights.
unfulfilled basic needs. The first model implies least social or state Such an approach is premised on certain inherent qualities of a human
intervention, while as the second model implies that the society or the being, by reason of which it is considered right and just that he should
state ought to strive to the maximum extent for meeting the unmet needs. have certain things, can do certain things or should enjoy certain
Professor Upendra Baxi provides a unique rationalization for the second freedoms. Natural law thinkers strongly believed that as a 'being' each
model thus." "People are not naturally poor, that impoverishment is a individual has a claim over certain minimum conditions of existence.
dynamic process of public decision making in which it is considered just, Johann Gottlieb Fichte (1762-1846) perceived that the state must
and fair that some people may become or stay impoverished." 29 More guarantee to everyone the right of existence: "The purpose of human
than a decade after Baxi's conceptualization the decision making' seems activity is to enable one to live; and all who have been granted life by
to have become even more insensitive to the plight of the disadvantaged nature have the same claim to this privilege. The division of rights must
population, particularly in the wake of globalization and the thus first be so arranged that all may be able to exist. Live and let live."31
The social contract thinkers equally strongly advocated a natural
27. Harris-white, Barbara, "Destitution and Poverty of its Politics: With Special
right to subsistence, which does not come to an end even after the
Reference to South Asia":, World Development (2005) Vol. 33, No. 6. at p. 884.
28. Harris-white, Barbara, "Destitution and Poverty of its Politics: With Special 30. Human Rights and Poverty Eradication, CHRIs Millennium Report, CHRI, New
Reference to South Asia":, World Development (2005) Vol. 33, No. 6. at p. 885. Delhi, 2001 at p. 17.
29. Baxi Upendra (ed.), Law and Poverty - Critical Essay, N.M. Tripathi, at p. VI 31. "Der Geschlossense Handelsstatt", "Collected Works" Vol. Ill, p. 402-cited in Fritz
(Introduction). Berolzheimer (1912), The World" Legal Philosophies, Vol. II, p. 199.
 Re-orienting the 'Rights' Discourse to Basic Human Needs 161 162 Human Rights and Basic Needs

individual enters into a contract with the civil society. Since the claims to basic need issues, some leadinig jurists like John Stuart Mill (On Liberty),
subsistence are inseparable from the existence itself it was like an John Rawls (Theory of Justice at p. 543) and Professor H.L.A. Hart were
inalienable right of the individual to have his basic needs met. Thomas honest in expressly excluding the basic need seeking poor and other
Hobbes in Leviathan spoke of such basic claims in these terms: "As it is resourceless people from their discussion on liberties and freedoms.
necessary for all men that seek peace, to lay down certain Rights of Professor Hart was most explicit in his exclusion of basic need claims. He
Nature; that is to say, not to have liberties to all they list; so it is necessary spoke of right in terms of 'freedom', which is perceived strictly in the
for a man's life, to retained some; as right to govern their own bodies; context of a competitive society in which there is a total absence of
enjoy air, water, motion, waives to go from place to place; and all things, coercion to enable everyone to pursue his liberty fully. But Hart expressly
without which a man cannot live, or not live well"32 Similarly many excludes from his concept of freedom the societies in conditions of
others who subscribe to the first approach conceded the human rights extreme scarcity, where the so called free competition is just not possible.
included claims to do everything that is essential for their subsistence.33 In this context Hart observes: "Freedom (the absence of coercion) can be
Amongst the modem thinkers Professor D. Conrad appears as an ardent valueless to those victims of unrestricted competition too poor to make
supporter of the first approach when he observes: "there is inherent in use of it; so it will be pedantic to point out to them that though starving
the basic needs conception from the very beginning an element of human they are free. This is the truth exaggerated by the Marxist whose
rights philosophy".34 identification of poverty with lack of freedom confuses two different
In support of his position Professor Conrad traces the roots of evils."37
human rights in the classical American documents to the basic necessities Thus, legal rights understood in the traditional freedom or liberty,
inherent in the right to'life.35 However, despite his strong support to the sense, would perceive the right claimants as capable, autonomous moral
first approach, Professor Conrad honestly admits that: "human rights agents, who desires less state intervention, in their pursuit of freedoms.
origins of subsistence claims was lost sight of during the 19 th century in As against this, the need seekers, are deemed by and large, incapable and
the very process of legal elaboration of institutional principles. Certainly lacking in autonomy. Furthermore, rights are said to have an absolutist
292

the ideology of rising economic liberalization plays its unfortunate part character. In the words of Nozick: "No one has a right to do something
too."36 whose realization requires certain uses of things and activities that other
The Second approach holds that basic needs were historically never a people have rights or entitlements over."38 This feature of right again
part of the human rights or legal rights discourse and that it was in the works against basic needs whose fulfillment, particularly in a society like
middle of the 20th century that certain basic needs were for the first time ours, dependent upon sharing the interests with those who have an
recognised as welfare rights which were conferred by the welfare state on excess of property or freedoms. Such a diversity in the thinking about
the weaker sections of the society. This means that recognition and rights and basic needs has not only traditionally kept the basic need
protection of basic needs is a relatively new phenomenon that has still debate out of the rights discourse, but also ensured that even after the
not found full acceptance, both at the policy and the implementation recognition of some basic needs as welfare rights such rights remain
levels. It is interesting that basic needs exclusion is the stand of the ultra relegated to a secondary position.39 In India too the Constitution has
conservatives as well as the ultra radicals, but for different reasons. The accorded different kinds of legal treatment to fundamental rights, on the
conservatives reserve the rights discourse for elite class claims and one hand, and the Directive Principles, on the other.40 Thus, the strong
excludes the basic need claims of the need seeking under-classes. The
ultra radicals who view law as a class instrument find nothing surprising 37. Hart, H.L.A, "Are there any Natural lights", Philosophical Review, Vol. 4 (1955),
in the pre-occupation of legal rights discourse with life, liberty and footnote 2.

property interests only. Perhaps because of such natural exclusion of 38. Nocis, R., Anarchy, State and Utopia, Basic Books Int., 1974.
39. Marineer K. Wendy: "Access to Health Care and Equal Protection of the Law: Need
for a New Heightened Scrutiny", American Journal of Law and Medicine, Vol. XII,
32. T. Hobbes, Leviathan , Pt. 1, Ch. 15-cited in D. Conrad op.cit., at p. 8. Nos. 3 & 4,1986 at 348.
33. Conrad op.cit., at p. 9.
40. Part III of the Constitution guarantees Fundamental rights which are made
34. Conrad op.cit., at p. 8. enforceable through a wide range of judicial remedies in terms of Articles 32, 226
35. Conrad op.cit., at pp. 9-10. and 227, part IV provides for Directive Principles of State Policy that provide
guidelines for state actions but are not enforceable as such
36. Conrad op.cit., at p. 12.
 164 Human Rights and Basic Needs

Re-orienting the 'Rights' Discourse to Basic Human Needs 163

anti-basic need tradition in jurisprudence has not only blocked the sporadic, these measures can be classified into two broad categories,
benefits of rights strategy from reaching the basic need claimants, but namely: (a) Legislative initiatives and (b) Judicial initiatives. Among the
also turned the relevant intellectual enquiry absolutely elitists and legislative initiatives the notable ones are those relating to minimum
western society oriented.41 wage protection44, untouchability abolition and its incidents,45 bonded
However, despite a strong anti-basic needs tradition in labour abolition,46 child labour prohibition,47 guarantee of right to
jurisprudence, there are some scholars and a large number of legal primary education48 and legal aid,49 employment guarantee50 etc.
activists who strongly advocate for inclusion of newer kinds of basic However, the most significant legislative initiative can be located in the
need claims in the rights discourse.42 Equally significant is the new found Consultation Paper on "Pace of Socio-Economic Changes and
concern for the poor and the basic need seeking population at the Development under the Constitution" proposed by the National
international level, culminating in the passage of the United Nations Commission to Review the Working of the Constitution. 51 The aforesaid
Millennium Declaration and Millennium Development Goals (MDGs) in Consultation paper has taken a totally unconventional approach in
2000 43 The MDGs comprising of Eight goals and Eighteen Targets, centre addressing the basic need issues. In Chapter 5 the Consultation Paper
round all the important basic needs such as hunger, primary schooling, observes: "The persistence of human deprivation indeed, reflects a
elimination of gender disparity in education, reduction of child mortality, serious denial of social and economic rights conferred upon citizens by
maternal health, combating HIV/AIDS malaria and other diseases, the Constitution of India, Ill-health, malnutrition, illiteracy, insufficient
environmental protection, access to safe drinking water, slum eradication earnings, social exclusion lack of say in decision-making - all these must
etc. At the normative level MDGs are neither law nor have acquired the be viewed as a set of unfreedoms constituting human poverty."52 The
force of customary international law rules, but still they constitute Commission has coined new and need-oriented terms to describe rights
internationally agreed values that would influence in course of time the and freedoms such as: 'The Right to Survival', 'The Right to Good
Human Rights and legal rights discourse. Such theoretical developments Health', 'Freedom from hunger', 'The right to Education' and 'Freedom
are also backed by the increasing trend of judicial activism in favour of from Gender-based Discrimination'.53 Perhaps this kind of radical
293

the poor that has, particularly in the last two decades, become known for reintegration of needs in rights and freedoms must have been at the back
giving humanistic interpretations to some of the traditional constitutional 44. The Minimum Wages Act, 1948.

and statutory rights, measures. 45. The Protection of Civil Rights Act, 1955 (earlier known as the Untouchability
Offence Act, 1955); the Scheduled Caste and Scheduled Tribes (Prevention of
VI. Auditing the Legal Initiatives for Basic Need Recognition Atrocities) Act, 1989.
The general ethos and the dominant state policy in India has, by and 46. The Bonded Labour System (Abolition) Act, 1976.
a large, been of non-intervention by the state in matters of basic need 47. The Child Labour (Prohibition) Act, 1986
fulfillment. That is the reason for almost total lack of social security 48. Article 21A of the Constitution of India incorporating a new right relating to
against want and suffering, particularly for the informal and unorganised primary education.

sections of the vulnerable population. But in the five post-independence 49. The Legal Services Authorities Act, 1987, has come in force and the legal services
decades the governments have often resorted to measures that are either Authorities have been created at the Central and state level and in many states.

directly or incidentally related to basic needs fulfillment. Though 50. The national Rural Employment Guarantee Act, 2005 that has legislatively provided
for 100 days work in rural areas a legal right initially in 200 districts all over the
country.
41. The idea of introducing basic human needs discussion within the legal rights topic
in the LL.M. Comparative Jurisprudence Course in the Delhi University, was 51. The Advisory Panel that authorised the Consultation Paper comprised of Justice K.
inspired by a thought of social relevance of the course for our society. It was agreed Punnayya (Member Incharge), Justice Dr. K. Ramaswamy (Chairperson); Shri P.A.
to impart critical element in the course by shifting the focus of the intellectual Sangma, Shri P.S. Krishnan, Dr. Sukumar Azhikode and Dr. P. Swaminathan
(Members)
inquiry from abstract western concepts to the existential realities of our society.
52. The NCRWC Consultation Paper, Vigyan Bhawan, New Delhi, at p. 18.
42. The myths underlying the orthodox jurisprudential thinking are systematically
exploded by writings of authors like Sadurski, Wjoeirech: "Economic Rights and
53. But does it not reflect conservative 'mind set' on the part of the policy makers and
Basic Needs" and Plat, Raymond: "Need, Agency and Rights", in Samford, C.J.G. et
the intellectuals that even after two years of the publication of this consultation
al. (eds.), Law, Rights and Welfare State, Croom Helm, 1986.
paper and the advocacy of such a bold and socially meaningful approach there has
43. "Millennium Development goals: A compact amongst nations to end human not been any worthwhile debate or emulation of such an integrated approach.
poverty". Human Development Report 2003, UNDP, O.U.P. (2003).
 Re-orienting the 'Rights' Discourse to Basic Human Needs 165 166 Human Rights and Basic Needs

of the NHRC's mind, while passing the Order dated January 17, 2003, been guided by the logic of financial position of the State, but in view of
while observing." "The citizen's right to be free from hunger enshrined five suicides in disregard of the earlier direction of 2003, the non-
in article 21 is to be ensured by the fulfilment of the obligation of the intervention, by the Court in 2005 not amount to taking a conservative
states set-out in the Articles 39(a) and 47. The reading of Article 21 line? That is the reason why the over five decades of apex court judicial
together with Article 39(a) and 47, places the issue of food security in the journey has not been able to create a climate for a sustained and
correct perspective, thus, making the Right to Food a Guaranteed progressive recognition of basic human needs. On the contrary the
Fundamental Right."54 judicial journey is marked by attitudinal ambivalence and, at times,
1. Judicial Initiatives judicial regressions.
The post-emergency judicial activism stance coupled with the 2. Food Need Still not a Recognised 'Right'
relaxation of the locus standi rules have in the last two decades turned the The first significant initiative to get food need recognised as a
higher judiciary, particularly the Supreme Court, into a preferred agency fundamental right came up in Kishan Pattanayak v. State of Orissa62 The
for the 'foodless', the 'homeless' and the 'medical-careless' population. wide-spread famine and starvation conditions in Kalahandi and Koraput
As a consequence the Supreme Court and the High Courts have been Districts of Orissa in the year 1985 had driven some public spirited
approached for relief in respect of medical care need55, drinking water persons to use the forum of the Court to make the state to take steps
need56, primary education need,57 shelter need,58 food and nutrition toward off the calamity faced by the vulnerable sections of the region.
need59 etc. In a recent PIL the issue of non-payment of wages by a public The Supreme Court took over three years in disposing-off the petition,
sector undertaking in Bihar and Jharkhand that had led to starvation, that too without either recognizing any right of the poor and hapless to
deaths amongst employees was agitated before the Supreme Court.60 The food or fastening the administration with any kind of obligation 63 The
Court did accept that the state cannot escape its liability when a human next time food need was agitated before the Supreme Court again in
rights problem of such a magnitude involving starvation death or suicide Indian Council of Legal aid and Advice v. Union of India 64 The petition raised
294

of employee, by reason of non-payment of salary arises. But the Court the issue of continued starvation deaths and distress sales in certain
qualified its relief by limiting its direction only for the purposes of: districts of Orissa. The Supreme Court in their Order directed the NHRC
"furtherance of human rights and fundamental rights of the employees to undertake an elaborate enquiry into the matter and suggest short term
concerned and not by way of enforcement of their legal right to arrears and long term solutions. The third petition relating to food need was
of salaries"61 The Courts' reluctance to order concrete relief may have Peoples Union for Civil Liberties v. Union of India65 that agitated before the
Supreme Court by an NGO in the wake of widespread conditions of
starvation deaths in several states in the country. The petition assumes
54. NHRC Order, January 17, 2003 at p. 12; However, since the NHRC Order lacks the
special significance not only because it brought up the issue of starvation
quality of 'law laid down by the Supreme Court' there is a need for the Court to
grant formal approval to the views incorporated in the Order.
deaths before the Supreme Court for the third time in two decades, but
also because it brought to the fore starvation on the face of surplus food
55. Vincent Panikurlangera v. Union of India, (1987) 2 SCC 165; Kirloskar Bros. v. Escort
Corpn., (1996) 2 SCC 682; Paschim Banga Khet Mazdoor Samiti v. State, (1996) 4 SCC
grains in the Government stocks. In this ongoing petition before the
37; State v. R.L. Bagga, (1998) 4 SCC 117. Supreme Court till April 2004 eleven Orders had been passed. In Order
56. A.P. Pollution Control Bd. v. Dr. Naidu, (2001) 2 SCC 62; S.D. Sinha v. Union of India, II dated August 20, 2001 the Court set the stage for taking on the problem
(2001) 3 SCALE 533.
57. Unnikrishnan v. State. (1993) 1 SCC 645.
62. 1989, Suppl 1 SCC 258.
58. Santistar Builder v. N.K. Totame. (1990) 1 SCC 520; Chameli Singh v. State, (1996) 2
SCC 549. 63. Pande, B.B. "The Constitutionality of Basic Human Needs - An Ignored area of
59. Kislian Patnayank and Orissa v. State, AIR 1998 SC 677 (hereinafter Kishan Pattanayak Legal Discourse" (1989) 4 SCC Jorn. 1; Pande, B.B. "When they came to the Courts
seeking Basic Needs: Alternatives to 'Flawed' Response", 30 J.I.L.1.1989.
Case); Indian Council for Legal Aid and Advice v. Union of India W.P., (Civil) No. 42/
1997, etc. 64. W.P. (Civil) No. 42/97 NHRC Order dated 17/2/1998—Coram: Justice M.N.
60. Kapila Hingorani v. State of Bihar, (2005) 2 SCC 262. Venketchaliah, Chairperson, Shri Virendra Dayal and Justice V.S. Malimath,
Members.
61. Kapila Hingorani v. State of Bihar, (2005) 2 SCC 262 (270) (Coram: N. Santosh Hegde
65. Writ Petition (Civil) No. 196 of 2001 (herein after PUCL Case).
and B.S. Sinah, JJ).
 Re-orienting the 'Rights' Discourse to Basic Human Needs 167
168 Human Rights and Basic Needs
of hunger and starvation thus: "The anxiety of the Court is to see that the "2. The State Governments/Union Territories are directed to pay
poor and the destitute and the weaker sections of the society do not minimum wages to the workers under the scheme and should stop
suffer from hunger and starvation. The prevention of the same is the the use of labour displacement by machines."69
prime responsibilities of the Government whether central or state. How
Though Food Petitions have been pending before the Supreme Court
this is to be ensured would be a matter of policy which is best left to the
almost throughout the period ever since Kishan Pattanayak Case in mid
Government'66
eighties, but so far the courts have neither recognised a general right to
In Order IV the Court gave elaborate directions in respect of the
food nor even a right to food for the destitute and starving population,
right schemes for the amelioration of the conditions of the weaker
through the Supreme Court in the PUCL Case, Order II and Order IV
sections, identification of the various beneficiaries and strengthening the
expressed its anxiety and a pious hope that poor and destitute do not
implementation machinery. The Court backed these significant directions
suffer from hunger and starvation. It is difficult to appreciate why the
by supporting directions to media (Doordarshan and A.I.R.) to give wide
Court did not take a more categorical stand in matters of recognizing a
publicity to the schemes and the directions and also directed the chief
right to food so far?
secretaries of each state to report compliance to the Order within eight
weeks. It appears that the things did not change very much even after In matters of according to recognition to food need the National
two years that is the reason why in Order VII dated May 2, 2003 the Human Rights Commission has shown better sensitivity and creativity
Court had to scale down its earlier ambitious Order IV in these words: than the Courts. Pursuant to the Supreme Court referring the Second
"What is of utmost importance is to see that food is provided to the aged, Food Petition to the Commission in 1997, the issue of starvation deaths
infirm, disabled, destitute women, destitute men who are in danger of in Orissa was investigated and deliberated thoroughly by the
starvation, pregnant and lactating women and destitute children, Commission and two comprehensive Orders were passed in 1998 and
especially in cases where they or members of their family do not have 2003. The First Order recommended short term and long-term measure to
funds to provide food to them ... Mere schemes without any combat conditions of destitution and starvation. The Second Order dated
295

implementation are of no use. What is important is that food must reach January 17, in addition to recommending additional measures called or a
the hungry."67 Finally, in Order IX Court appears to have realised how change in the policy that would recognize right to food as a right in terms
difficult it is to ensure the implementation of basic need claims of the constitutional guarantees. Apart from the Commissions' categorical
poorer sections, in these words: "it is a matter of anguish that despite recommendation for paradigm shift in the legal interpretation, the
lapse of nearly three and a half year the order dated 28 th November, 2001 Commission has recommended relief in starvation death and distress
has not been fully implemented by all the states and Union Territories. suicide cases in response to direct petitions from the parties or through
As already stated earlier many states have given only half-baked suo moto action. The Commission believes that "Death by starvation
constitutes the gravest violation of the Human Rights of an individual."
information and figures"68 However, despite large scale non-compliance
with its earlier Order the Court issued seventeen fresh directions in 3. The Shelter Need and Judicial Regression
respect of mid-day meal, employment guarantee and free and economic Olga Tellis v. Bombay Municipal Corpn.70 was the first case where the
food entitlement schemes. It is interesting that the Court considered shelter needs of pavement dwellers came to focus. In that case the
employment and minimum wage guarantee as an effective way for Supreme Court agreed to read right to livelihood in right to life, but
fighting hunger and starvation in these words: nothing categorical was said about the substantive right of housing of the
poor urban pavement dwellers. However, despite turning back the
petitioner without providing any relief the decision of the Supreme Court
displayed a deliberate attempt to take a more humane view of the social
66. Orders of of India, Right to Food (2004). Human Rights Law problem of the squatter population. However, by 1996 in Ahmedabad
Supreme Court
Network, at p. of India, Right to Food (2004). Human Rights Law
67. Orders of Supreme Court
25.
Network, at pp. 40-41.
69. Orders of Supreme Court of India, Right to Food (2004). Human Rights Law
68. Orders of Supreme Court of India, Right to Food (2004). Human Rights Law Network, at p. 52.
Network, at p. 50.
70. (1985) 3 SCC 545.
 Re-orientmg the 'Rights' Discourse to Basic Human Needs 169 170 Human Rights and Basic Needs

Municipal Corporation v. Nawab Khan71 the Supreme Court appeared more

our human rights and legal system formulations. More alarming is the act
inclined to take more positive steps against encroachers and tried to
of our 'learned' community's ability to live comfortably with all this
distinguish between the long time encroachers and the fresh encroachers.
social and moral decadence. Perhaps we can learn a lesson or two from
In Bombay Environmental Action Group v. A.R. Bharti72 the encroachers and
the following real life experience:
slum dwellers had posed threat to the Sanjay Gandhi National Park and
As a young teacher handling Law and Poverty Course, I was
the Court preferred to take stern steps against them in the interest of
perpetually harassed by the predicament of the destitute and
environmental protection. But even in this case, like Olga Tellis, the Court
starving in our society. Just then, I learnt about a leading saint who
passed directions for giving alternative site to those who were staying
was known to be an authority on Bhagwat Puranas. I sought an
there. But between the eighties and nineties the Court had already begun
appointment with him to raise a few queries about his concept of
perceiving the encroachers as a symbol of illegality, thereby justifying
Akhand Brahamand. I respectfully asked Swami Akhadanand ji:
demolitions and forcible displacement of the slum dwellers. Finally by
"Swami Ji could you kindly tell me what place or significance you
the early 2000 the Governmental Policy in respect of slum dwellers and
would accord in the divine scheme to those suffering and dying due
squatters on public land had undergone a significant shift. This shift is
to heat, cold or hunger? Swami Ji appeared to be unmoved as he
clearly noticeable in the revised Draft Annual Plan 2000-2001 other Urban
replied: "In our imagination of Akhand Brahamand there is no
Department of the Govt, of NCT of Delhi that accords to the squatters
significance of a few pinda bursting or jeeva dying." My retort was
and slum dwellers only a licensee status and subjects them to the
sharp and rather curt: "Don't' you realise, why your imagination of
provision of relocation to new sites. In the same vein is the Supreme
Akhand Brahamand would have any meaning for that hungry and
Court decision, Almitra H. Patel v. Union of India73 in which the
dying man and are you not creating your own world-view for a few
humanness to squatters seems to have got replaced by an insinuation of
rich and well-off people? I expected you to accord some space to the
criminality in thee words: 'Establishment or creating slums, it seems
poor and hapless as well, in your 'Grand' imagination". Obviously,
appears to be good business and is well organized. The number of slums
Swami Ji may not have expected such a reply, muchless appreciate
296

has multiplied in the last few years by geometrical proportion. Large

it.
areas of public land, in this way are usurped for private use free of cost
But even after more than thirty-five years (it could have been three
... The promise of free land, at the tax payers cost, in place of jhuggi, is
hundred and fifty years or even more) I am still waiting for a satisfactory
a proposal which attracts more land grabbers, Rewarding encroachers on answer.
public land with an alternative site is like giving reward to a pickpocket."74
Thus, the current judicial and administrative policy that aims at
invisibilizing the 'ineligibles' amongst the city's poor and forcing the
'eligible' into planned sub-human slums can be questioned both on moral
and political grounds.
VII. To End
The recurring incidents of hunger, cold and heat exposure deaths
and increasing numbers of the marginalised and homeless in most of our
'metro' towns and urbanized villages and, above all, the growing
insensitivity of the ruling class as well as the intellectuals to the plight of
the poor generally, is an indicator that every thing is not all-right with

71. (1997) 11 SCC 130.

72. WP No. 305 of 1995 before the Bombay High Court.
73. (2000) 2 SCC 679.
74. Justice B.N. Kirpal (M.B. Shah and D.P. Mohapatra, JJ. Concurring) at p. 685
(emphasis supplied).