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The Constitutionality of Basic Human Needs :
An Ignored Area of Legal Discourse

by B.B. Pande *

Cite as : (1989) 4 SCC (Jour) 1

"The people of Kalahandi, in order to save themselves from starvation deaths, are compelled to subject themselves to distress sale of labour on a large scale resulting in exploitation of landless labour by the well-to-do landlords. It is alleged that in view of distress sale of labour and paddy, the small peasants are deprived of the legitimate price of paddy and they somehow eke out their daily existence. Further, their case is that being victims of chill penury, the people of Kalahandi are sometimes forced to sell their children... the starvation deaths of the inhabitants of the districts of Koraput and Kalahand are due to utter negligence and callousness of the administration and the Government of Orissa. It is alleged that the starvation deaths, drought, diseases and famine have been the continuing phenomena in the said two districts since 1985." From the judgment of Mr Justice M.M. Dutt (Mr Justice K.N. Saikia concurring) in Kishen Pattanayak v. State of Orissa1

The issues raised in the above extracted two writ petitions are easily the most compelling and urgent concerns for any civilized human society. The predicament of human beings facing the prospects of starvation death, distress sale of crops, labour and even children, and the helplessness of those who are unable to organise the minimum basic necessities of life is too grim a reality for any kind of detached debate. Ordinarily one expected that the happenings narrated in the petitions ought to have triggered off a serious political and social storm that would compel the administration to undertake a detailed critical examination of the relevant social reality and follow it up with appropriate relief action. Alas, despite reasonably spirited media and political exposures of the happenings in Orissa during the relevant period the administrative response was more or less evasive and careless. Even the last resort action of the petitioners preferring a public interest petition before the Supreme Court failed to produce any satisfactory answer for these reasons. First, the court took over three years in finally disposing of the petition despite Justice P.N. Bhagwati's first order dated December 5, 1985 in which he had directed that "The Writ petition shall be placed on for hearing and final disposal on 4th February, 1986".2 Second, the court proved just a shade better than the administration in conceding that the people in the districts concerned were very poor and most of them have been living below the poverty line. Also that "the happening of one or two cases of starvation deaths cannot altogether be ruled out"3 (the administration as well as the District Judge appointed by the Supreme Court to enquire about the allegations had flatly denied starvation deaths but accepted the fact of death due to 'old age' and progressive malnutrition). Third, the court came all out in the defence of the administration by arriving at a conclusion that there was no reason to doubt that adequate measures were being taken for the purposes of mitigating hunger, poverty and starvation deaths and, therefore, no specific relief under the petition was called for. Thus, with the decision of the Supreme Court ended the much published journey of the Food Petitions, without even carefully examining the contours of the human predicament, without properly assessing the import of the petitioner's claims and without addressing itself to the existential realities of the system. Why was all this possible? Why the court took an inordinately long time in disposing of the petitions, thereby implicitly acquiescing in the dilatory tactics4 of the administration? Why despite Justice P.N. Bhagwati's appreciation in the earlier order in "the same case that "no one in this country can be allowed to suffer deprivation and exploitation and particularly when social justice is the watch word of our Constitution"5 no positive obligation could be read on the part of the administration?6 Why even after forty years of Independence the court failed to give a new lead in the direction of a socially relevant human rights jurisprudence? are some nagging questions thrown up by the petitions and the decision. However, the main purpose of referring to these petitions here is not to write an elaborate critique of the administrative and judicial responses, but to bring into sharper focus the hitherto ignored theme of constitutionality of basic human needs: Does the Indian polity recognise any or all of the human needs? What existing constitutional provisions can be invoked for securing the basic human needs? What has been the track record of the State agencies, particularly the judiciary, in recognizing and securing the basic human needs?

A. The Concept of Basic Human Needs

Satisfaction of human needs is widely accepted as a characteristic of any just society. However, in view of the stages of development and ideological preferences there may be marked difference between one society and another on the issue of perception of human needs, priorities of human needs and the techniques deployed for securing them. Though human needs issues have been traditionally explored by disciplines like Economics, Political Science, Anthropology and Psychology but in recent times human need have started receiving the attention of legal scholars, who have made human needs their starting points for more meaningful enquiries in the fields of human rights, social justice, individual liberty, equality, etc.7 In this context the food need has acquired a distinct status in some of the recent researches and studies in the field of International Law and Jurisprudence.8

(i) Identification of Human Needs

Human need, 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 physiological or homeostatic needs the biological sciences are more unanimous in producing scientific information regarding the essential needs relating to general hunger and specific food appetites, thirst, respiration, constant internal temperature and sleep, rest after fatigue and work after rest, etc.9 In a recent study David Braybrooke10 has described the bodily needs as needs based on physical functioning and listed the need to have life-supporting relations with environment on the top, followed by the need to food and water, the need to excrete, the need for periodic rest (including sleep) and the need to keep the body intact in other ways.11

The identification of social, learnt or acquired human needs proves much more problematic and controversial, not only because such needs are strongly influenced by ideological considerations but also on account of a close association of such needs with subjective preferences and abilities. Furthermore, as understood by the Marxists these needs can either be 'true' or 'false', depending upon the level of critical examination.12 However, despite such disagreements and controversies it is still possible to broadly identify need for companionship, education, social acceptance and recognition, sexual activity, freedom from harassment and recreation, etc. as prominent 'social function' needs.13 Karl Marx used the term species needs to describe these needs, which according to him include primarily the need for solidarity relations (companionship and communication) and need to perform productive work.14 Some of the recent writings on social needs have emphasised equality, access to justice and removal of social stigma like untouchability as the prominent aspects of social needs.15 The latest addition in the catalogue of social needs is the right or the need to development, which is described as the key need that subsumes many otheRs16

(ii) Prioritizing Human Needs

Any programme of social action based on human needs has to arrange the vast variety of needs in some kind of ranking order. The idea of labelling certain human needs as basic and the rest as non-basic implies resort to a ranking order. The arrangement of needs according to rank involves not only a better identification but also fixing of social priorities for the various human needs. The concept of basic human needs involves drawing a list of foundational or essential human needs of, both, physiological as well as social import and, in a way, arrive at a list of bare minimum human needs. One of the earliest thinking about basic human needs was given by Buddhism which described basic needs of a person resigned to ascetic order as chatupachhayaya that included within its fold Pindpat (Food), Chivar (clothes), Senasan (shelter) and Gilanapachhaya-Bheshajya Parikhhara (medical services).17

The United Nations18 has identified the following list of basic needs:

1. Nutrition

2. Shelter

3. Health

4. Education

5. Leisure

6. Security (physical safety and economic security)

7. Environment

Similarly, the International Labour Organisation has included in their scheme of material basic needs certain minimum levels of private consumption of food, clothing and shelter and access to certain essential services, such as pure water, sanitation, public transport and health and educational facilities.19 Thus, the very trend of identifying basic needs involves preferring certain needs over others by placing them in some kind of priority order.

However, in some societies even the actualization of these basic human needs poses serious resource and political problems. There are societies that lack resources for providing all the basic needs at a time. The question arises which basic need is to be preferred over others? Similarly, there is a strong viewpoint that is opposed to the State or the International agencies taking up the task of fulfilling all the basic needs: Will it not lead to a undesirable dependency and unreasonable assumption of power on the part of the State? Which of the basic needs can be fulfilled without such undesirable side-effects? Perhaps the best answer to some of these issues can be found in the writings of Abraham Maslow20 and Christian Bay.21 Maslow was the first to propound a theory of hierarchy of human needs and the mechanism of the emergence of a higher need only after a reasonable satisfaction of the lower needs. Similarly, Bay says "New and higher" motives are born only as more basic and essential motives receive satisfaction and the individual takes their satisfaction for granted!22 The views of Maslow and Bay find ample support in the alienated lives of the poorest sections of our society for whom many higher social needs and desires remain, by and large, meaningless.23

The idea of prioritizing human needs has assumed special significance in the wake of widespread hunger and starvation — an indicator of unfulfilled food need. It is true that food need might no more be a serious social problem for many of the developed societies. In the words of Professor Conrad "Issues of basic needs are no longer pressing in the West. In the affluent societies no one dies from starvation involuntarily. The prayer for "daily bread" lacks existential earnest — we know that, at the latest, the social welfare office will provide us with the daily bread, if on a measured scale".24 But in the underdeveloped societies25 and the underdeveloped regions of the developed societies26 the problem of maldistribution is still leaving many deprived of even food need. Perhaps this is because the exploiting sections of the society know fully well that the fear of hunger and its associated conditions is the best means for keeping the exploited sections under control: they most easily agree to become bonded labour, sell their children, and agree to act as organ donors, only when the threat of hunger and starvation looms large.

(iii) Relating Basic Needs to the 'Dehumanised' Population

Talking of basic human needs at abstract level serves little practical purpose. The fact of the different sections of the vulnerable population suffering on account of diverse disabilities27 requires matching particular basic need with the relevant dehumanised population.28 In this way basic need discussions and actions can be related to a specific weaker section like the Scheduled Castes, tribals, landless labour, bonded labour, slum-dwellers, women and children, etc.,29 and the available resources deployed in caring for the needs of the most 'needy' groups.

Though the social categorisation of the 'needy' on the basis of caste, landlessness, working class, gender and juvenile status may prove a useful criteria for fulfilling basic needs of particular type such as the need to remove social stigma and access to social resources in case of Scheduled Caste or women, etc., but the criterion of poverty line provides a generally acceptable basis. It can be assumed safely that the below poverty line population would also suffer for want of multifarious needs. According to the official estimate, in 1981 the below poverty line population was 317 million30, which could be further classified into five levels of poverty on the basis of their income standing.31 Of these the lower four levels that comprised 150.7 million could be described as the destitute population. It is this destitute population that could be described to be in subhuman level of existence. The basic needs of this section of population, particularly the lower level basic needs that Maslow described as Physical (biological) needs — air, water, food, sex, etc.,32 deserve unconditional priority not only as a subjective existential condition but also as a precondition for a civilised social order.33

B. Constitutional Foundations of Basic Human Needs:

The Constitution provides not only a legal framework for the distribution of powers and privileges amongst the different sections of the society, but also the value code for guiding the distribution of such powers Such a pre-pondering role of Constitution impels the individuals and groups, desirous of buttressing their claims to the diverse social resources, to invoke the constitutional authority. As understood traditionally the benefits flowing from the constitutional guarantees are primarily enjoyed by the privileged sections of society, for whom the Constitution is a very important resource for legitimizing and augmenting their interests. However, in recent times, with the alterations in the dynamics of political and social power and the changes in social consciousness, the constitutional resource is being increasingly claimed by the underprivileged and the powerless sections. This tendency has inaugurated an era of new constitutional debate and extensions. Presently we shall be concerned with the debate relating to constitutionality of basic needs and focus mainly on the three major aspects, namely (i) Hierarchy of Rights, (ii) Basic Needs as aspects of Equality, and (iii) Basic Needs as essence of Perambulatory Resolve.

(i) Hierarchy of Rights

Those acquainted with the history and developments of legal rights would have little difficulty in appreciating that over a period of time certain categories of individual claims or interests received far greater recognition and protection from the legal system than the vast majority of other claims. Usually the preferred claims were closely associated with the property interests and the political status of the claimant. For whatever reason such uneven developments in the arena of legal rights lead to a situation are aptly described by Wendy K. Mariner in these words: "The result has been to divide human concerns into two highly-unequal spheres — one for a few political and personal liberties, and a second for all other values. The first sphere of fundamental rights enjoys special insulation from majoritarian decision making, while interests in the second, much larger sphere, remain subject to any form of restriction that is not patently and cruelly arbitrary."34 The Indian Constitution seems to have accepted the same type of dichotomy between the Fundamental Right and the Directive Principles of State Policy35, by providing for two different types of treatments for them. There are several scholars who subscribe to the view that the Fundamental Rights deserve primacy over the Directive Principles.36 Such a view accords with Ronald Dworkin's37 distinction between "background rights" and "institutional rights". The distinction between the two types of rights is that the background rights are merely justification of political decision by society in abstract, while the institutional rights are concrete rights and can be enforced at the instance of the right claimant. However, in the typology of rights, Professor Amartya Sen38 prefers to add yet another tier which he describes as a metaright. According to Sen the focus of metaright is pursuit of policies that would make the achievement of an abstract right possible. Sen prefers to describe the Directive Principles as abstract background metarights only, thereby relegating them further down in the hierarchy of rights. However, Sen adds yet another legal concept, namely entitlements, that is useful for basic needs debate. Sen argues, "Most cases of starvation and famines across the world arise not from people being deprived of things to which they are entitled, but from people not being entitled, in the prevailing legal system of institutional right, to adequate means for survival."39 Entitlements are the totality of things a person can have by virtue of his rights, which in turn depends upon the legitimised process of acquiring goods under the relevant system.

How do basic human needs fare in the hierarchy of rights under the Indian legal system? What is the import of the recognition accorded to certain basic needs in the Directive Principles?

The orthodox legal rights approach entertains serious reservations in according rights status to basic needs40, mainly for the following reasons. First the rights imply an autonomous and fully capable agent, while basic needs relate to those sections who can hardly be described as capable or autonomous. Second, rights are generally understood in the negative sense as absence of constraint or interference by others, while basic needs call for positive action or interference with a view to securing them. Third, rights usually relate to political and property interest, while basic needs mainly concern interests of economic and social nature. Without undertaking a detailed examination of these reasons,41 it is suggested that neither rights are always what the orthodox view projects them42 nor the difference between basic needs and rights so irreconcilable.43 When and what basic needs get transformed into rights depends upon the prevalent legal and political consciousness.

The current basic needs and rights debate can draw some insights and clues from the works of Professor P.K. Tripathi on the subject. Prof Tripathi's one of the earliest writing on the Fundamental Rights and the Directive Principles relationship theme has the following pithy observation: "Just as the fundamental rights were proclaimed to free man from the personal shackles perpetrated by a feudal system, so, the directive principles were acknowledged and posited to protect man from the antipode of economic enslavement in which the capitalist system would inevitably plunge him through an unrealistic and blind emphasis on the fundamental rights themselves. Coming as they do, chronologically, after the fundamental rights the directive principles are meant to solve the very problem created by the age of fundamental rights: they set the limits to the application of the fundamental rights: they define those 'rights' anew, in the light of new experience and in terms of new needs."44 (emphasis supplied) The observation brings out two things distinctly. First, at one level the Fundamental Rights and the Directive Principles relationship is conflict-oriented. Second, by giving socially relevant interpretation to the Fundamental rights and accepting the possibility of adding new rights the area of conflict can be meaningfully reduced. Taking the cue from Professor Tripathi's view, is it not possible to argue out that the process of transforming basic needs into rights is an ongoing one, particularly in cases of societies where there exists a wide gap between the right-holders, on the one hand, and the need-seekers, on the other?

(ii) Basic Needs as Aspects of Equality

The Article 14 guarantee of "equality before the law or the equal protection of the laws" is generally thought to require government to treat similarly circumscribed individuals in a similar manner. The essence of this provision is, like persons are to be treated alike, but it does not guarantee equal treatment for all persons. The equality guarantee may be invoked in all cases of unequal access to certain basic needs relating to food, shelter, health care, education, etc. However, since the guarantee of equality permits reasonable classification amongst persons the benefit of equality guarantee would get limited to those cases alone in which arbitrary or unreasonable classification is resorted too.

Founding basic need claims on equal protection clause is already a fertile area of constitutional debate in the United States. Equality clause is deployed to claim a better distribution of medical care, education, social security, etc. benefits. The essence of such constitutional actions is to show the denial of a benefit of fundamental nature or in a manner that is arbitrary or unreasonable. Thus, in Plyler v. Doe45 the Court struck down a statute barring the children of illegal aliens from public education. The court accorded to public education a special status: "Public education is not a right" granted to individuals by the Constitution. But neither it is merely some governmental 'benefit' indistinguishable from other forms of social welfare legislation. This way the court took opportunity to strike down the statute for want of some "substantial" and "rational" State goal, thereby rendering the classification as suspect. However, in cases of medical care the courts have been reluctant to strike down the legislation, on the basis of equality clause, merely on the ground that the classification produces hardship or unfairness to the individuals who are dissimilarly placed in terms of their social and economic standing or ability. The failure of the traditional equality clause to provide justice in many cases has led to a search for a new equality approach. The second approach is elaborately discussed by Frank I. Michelman46, who views inequality not as a form of discrimination but a deprivation. In this way the concept of equality would require not equal terms of access but adequate means of access. According to this approach government that fails to provide means treats its citizens unequally. The essence of Michelman's approach is that effective participation in the political process is impossible unless one is adequately fed, clothed, and housed and in sound physical and mental condition and where people lack the basic means, the State treats them unequally. Michelman's approach to equality can substantially augment the basic needs cause.

(iii) Basic Needs as the Essence of Perambulatory Resolve

The Preamble to the Indian Constitution is notable for two reasons. First, it resorts to a fiction by conferring on the People of India the ultimate authority for not only constituting the future society, but also laying down the cherished ideals of the society and bringing into force the Constitution itself. Second, it spells out the social mission that the People of India resolve to pursue, namely setting up a Sovereign Socialist Secular Democratic Republic, securing the ideals of Justice, Liberty, Equality and Fraternity and adopt, enact and give a Constitution.

What are the implications of locating the ultimate sovereignty in the people of India for our present discussion? It is a fact that the Constitution was deliberated upon and drafted by an expert body, namely the Constituent Assembly, in terms of the Indian Independence Act, 1947. Why then did the Constituent Assembly not give the Constitution in their own name, or in the name of a king or a leader, or in the name of God? The best possible answer to this can be found in the spirit and consciousness of Indian Society in the mid-forties. Perhaps the members of the Constituent Assembly, like the political leaders of those days, saw themselves as the representatives of the people, as one that enjoyed their trust. They accepted the task of compiling the Constitution on behalf of all the People of India, including those who were not in a position to express their opinion (for the bulk of the illiterate and 'depressed sections' of the society) and those who were systematically denied the opportunity to pursue their interest by the dominant classes (the working class and the small peasantry). As it is argued by some the rhetoric of giving people the last say in the matters of Constitution formation could be just a device for giving a feeling of pride and satisfaction to the people who had little share in the real constitutional and social affairs.47 But could this fiction not be the basis for a moral obligation on the part of the Constituent Assembly to keep in mind the interests of the sections of Indian society? It may be argued, but for this fiction the Constituent Assembly would have enjoyed a much wider freedom to draw a blue print of the future society and fashion the Constitution in the interest of the dominant class. After all to be under an obligation to take the interest of all the classes into account is certainly different from being merely considerate to them. Once such a moral obligation is accepted it would not be difficult to argue that the needy, powerless and resourceless population has as much at stake in the Constitution and the type of society that we build, as the wealthy, privileged and resourceful population. This kind of pro-people understanding of the constitutional scheme and the guarantees is likely to substantially alter the meaning and the goal of the Constitution, and lead to a better understanding of the claims of the needy.

Apart from the fiction of writing the Constitution in the name of the people the Preamble highlights three aspects of the social mission of the People of India, namely the socialist democratic form of Government, the commitment to ideals of justice, liberty, equality and fraternity and the resolve of being guided by the Constitution, which in a way is more vital for the basic needs debate. It can hardly be controverted that basic needs are likely to be better ensured in a socialist democracy than in a capitalist or a liberal one. A socialist society is more conducive to needs satisfaction not only because it better ensures need fulfilment but also because it takes care that needs are not generated at the first instance, by planning effective distribution of productive forces and eliminating the possibility of exploitation.48

Though all the four ideals mentioned in the Preamble have relevance to basic needs, but the ideal of fraternity is of special significance. Fraternity that requires sharing of a feeling of commonness, care and concern for each other is predicated upon a condition that ensures bare minimum for all. How can people whose basic needs remain unfulfilled feel fraternal relations with others. A slave can hardly have fraternal feelings for the slave owner and vice-versa. The point of fulfilment of basic needs as a precondition for the ideal of fraternity has been very tellingly brought out in a recent empirical study of the pavement-dwellers in Calcutta.49 The study arrives at a conclusion that the lowest strata of the destitute pavement-dwellers remain, by and large, outside the influence of social customs and relations. It is a sad State that hitherto we have been able to pay very little attention to fraternal feelings of fellow Indians, but the day we realise its importance, can we claim to begin without caring for a basic need programme?

Finally, there is yet another aspect of the Preamble that has received little attention so far. The Preamble refers to the resolve of the People of India. It is neither the resolve of the State nor that of a few individuals, but that of the Indian people as a whole. What does such a collective resolve imply? It implies that each member of the Indian society agrees to the form of Government, accepts the cherished ideals and agrees to be bound by the Constitution. Relating the collective resolve or contract to the basic needs debate means that the satisfaction of basic needs is not merely the responsibility of the State, but of each well-off member of society. Such a conclusion is strongly supported by the consequentialist approach advocated by Susan James50, John Harries51, Peter Singer52 and Amartya Sen53 It may be pointed out here that the present advocacy of the consequentialist approach is primarily with a view to strengthening the basic needs claim in the light of the Perambulatory resolve, and not for relieving the State of their basic obligation to the needy.

C. Securing Basic Human Needs through the Judiciary

The urge to secure post-Emergency legitimisation did inspire the Indian appellate judiciary, particularly the Supreme Court, to develop a new kind of sensitivity to the issues relating to the poor, the Harijans, the tribals, the bonded labour, the low-paid worker and various other weaker sections of society. This new judicial sensitivity is amply reflected in some notable judicial decisions like the Rickshaw Pullers case54, the Asiad Workers case55, the Bandhua Mazdoor case56, the Pavement dwellers case57, the Beggars case58, etc. These decisions did succeed in creating a general impression that the judiciary and the Indian Legal System is becoming more favourably inclined to the claims of the weaker sections and that a social revolution is underway at the instance of the Indian higher judiciary.59

Coming to a critical examination of the judicial performance makes us realise that the above-created general impression regarding the role of the court is far removed from reality. Such a conclusion can be easily substantiated by a critical evolution of the courts' role in two sectors, namely (a) in conceptualization and securing the basic needs as rights, and (b) the degree of the courts' commitment to the basic needs.

D. Conceptual Ambivalence regarding Basic Needs

Though the higher judiciary in the post-Emergency period remained more inclined to take into account the interest of the weaker sections and grant a them variety of reliefs, but still it is difficult to draw a pattern and predict a particular type of response to the claims raised by the poor, in advance. The courts have been particularly uncertain about the identification and definition of the relevant needs and also the precise legal head under which relief is accorded.

The first important case involving basic needs issues was the Asiad Workers case60, which arose out of a public interest petition preferred by an activist social organisation with a view to securing the interests of the workers engaged in various Asiad projects. The main plank of the petitioners' case was that by the persistent denial of minimum wage, standard conditions of work and medical benefits, etc., the workers interests were being put in jeopardy; such a denial was not only a violation of the welfare legislations but also unconstitutional. However, since the petition was preferred under Article 32 of the Constitution, the main contention centred round the violation of the fundamental rights. The Supreme Court speaking through Justice Bhagwati (Bahrul Islam, J. concurring) found no difficulty in locating the basis of a constitutional action in several rights such as equality, personal liberty, non-employment of children and prohibition of begar or forced labour. But the Court relied upon Article 23 for deriving the main support for the judgment. In this context it may be said that the Court ought to be remembered for its creative interpretation of Article 23, which involved expanding the meaning of 'forced labour' to include within its ambit all varieties of involuntary, unfairly paid and compulsive labour. The giving of such expansive import to a typically Indian fundamental right61 was certainly a socially relevant exercise. But the court could have strengthened the understanding of the right by exploring how the non-payment of minimum wage, non fulfilment of the conditions of work affects the working population in the contemporary Indian context. This kind of exercise was all the more pertinent in view of the Courts earlier observation: "Civil and political rights, priceless and invaluable as they are for freedom and democracy simply do not exist for the vast masses of our people.... They have no faith in the existing social and economic system. What civil and political rights are these poor and deprived sections of the humanity going to enforce?" 62

In Bandhua Mazdoor case63 basic need issues relating to bonded labour in brick-kilns in Haryana were raised. The issues were more or less similar to the Asiad Workers case, with the only difference of the locale which made the senario of dehumanisation a shade worse. Yet another significant difference was that the petitioners, an organisation dedicated to the cause of eradication of bonded labour system, had mainly focussed their attack against the bonded status of a large number of workers in terms of the Bonded Labour System (Abolition) Act, 1976. In this case again Justice Bhagwati was on the Bench along with R.S. Pathak and Amarendra Nath Sen, JJ. Justice Bhagwati in his concurring but separate judgment relied upon Article 21 of the Constitution to protect the workers in these words: "It is the fundamental right of everyone in this country, to live with human dignity, free from exploitation. This right to live with human dignity enshrined in Article 21 derives its life breath from the Directive Principles of State Policy and particularly clauses (e) and (f) of Article 39 and Articles 41 and 42."64 Though none can fault the courts' zeal to protect the interests of the workers, but certainly it is not possible to explain the reasons for the courts' disillusionment with Article 23, which it had so elaborately expanded in Asiad Workers case. It is submitted that by giving relief to bandhua mazdoors under Article 23, may be the court would have made this ignored fundamental right a Charter of Workers interest. Furthermore, in Bandhua Mazdoor case Justice Bhagwati has preferred to identify the various needs enumerated in the Directive Principles as the attributes of human dignity and accorded them a kind of supremacy in these words: "These are the minimum requirements which must exist in order to enable a person to live with human dignity and no State — neither the Central Government nor any State government — has the right to take any action which will deprive a person of the enjoyment of these basic essentials. Since the Directive Principles of State Policy contained in clauses (e) and (f) of Article 39, Articles 41 and 42 are not enforceable in a court of law, it may not be possible to compel the State through the judicial process to make provision by statutory enactment or executive fiat for ensuring these basic essentials which go to make up a life of human dignity but where legislation is already enacted by the State providing these basic requirements to the workmen and thus investing their right to live with basic human dignity, with concrete reality and content, the State can certainly be obligated to ensure observance of such legislation for inaction on the part of the State in securing implementation of such legislation would amount to denial of the right to live with human dignity enshrined in Article 21.65" Such a progressive interpretation would certainly help the cause of transformation of statutory benefits or privileges into constitutional rights.

E. Lukewarm Commitment to Basic Needs

Despite certain progressive trends it is still not possible to infer a clear and undiluted commitment of the Courts for the basic needs. The Pavement dwellers case66 is a classical example of such a weak commitment. The gut issue involved in the case was that the pavement-dwellers had claimed a right to shelter which was being denied to them by the relevant Municipal Corporation's action for their eviction. The Supreme Court speaking through Chief Justice Chandrachud made several useful observations relating to the basic needs by accepting the privilege to livelihood, shelter, as an aspect of right to life under Article 21 of the Constitution. Thus, for the first time the shelter need was transformed into a constitutionally guaranteed right, and in this sense the decision was an achievement for the large section of the shelterless, slum and pavement-dwellers, who continue to abound our newly-emerging centres of human habitation. However, the same court that recognised the shelter and livelihood need so radically, found no difficulty in pronouncing that the need could be subjected to reasonable restriction required for keeping the pavement clear for the road-users — the morning and evening-walkers and holiday-joggers included. Thus the Court preferred to make the shelter seekers' need subservient to the road-users' need. In a recent High Court decision Shanker Banerjee v. Durgapur Projects Ltd.67 the shelter need was again recognised as a fundamental right envisaged under Article 21 and also Article 43. In his order Justice Sudhir Ranjan Roy observed: "To ask a person to live in subhuman conditions by depriving him even of the benefits of two small rooms which is the minimum requirement for a family to live, and compelling him to live in one single room with his wife and children and to share the bath, toilet and kitchen with another family, if it connotes anything, is mere animal existence, nothing more.... The sweep of the right to life conferred by Article 21 of the Constitution, which according to the Supreme Court is 'wide and far-reaching' should, therefore, include such minimum living conditions without which a human being ceases to be one of the said species."68 It is true that the basic needs of the petitioners were in question in this case, but in appreciating conflicts like the present one is it desirable to totally ignore the shelter needs of the other employee whose large family was compelled to stay in the open, for want of even one room?

Finally, in the Food Petitions the Court's commitment even to the most vital need weared down to a vanishingly thin level. The court saw the mischief and seemingly appreciated the denouement but did not care to do anything about it, thereby leaving us to face a dilemma that even advanced capitalist societies continue to face, in the words of Steven Box: "And of course in a society like ours, which pontificates about equality, freedom and human rights, even while encouraging enormous differences in the distribution of income, and even more in wealth, the problem of persuading those who haven't 'just about right' poses a constant headache."69

*      Professor of Law, Delhi University Return to Text

  1. 1989 Supp 1 SCC 258. Hereinafter referred to as the Food Petitions Return to Text
  2. Unreported order of P.N. Bhagwati and D.P. Madon, JJ., dated December 5, 1985 on Civil Writ Petition No. 12847 of 1985. Hereinafter referred to as the First Order. Return to Text
  3. The Food Petitions at p. 33 (para 7). Return to Text
  4. In the First Order the court had stressed the value of expedition in such petitions and directed the Commissioners to submit a fact-finding report within six weeks. Return to Text
  5. The First Order - para 1. Return to Text
  6. It is interesting to note that over a hundred years ago even the British government had clearly accepted an obligation towards the famine affected population in these words: "The principle upon which the Government of India has framed the scale of wages embodied in the Code is that the wage should be the lowest amount sufficient to maintain health under given circumstances. While the duty of the Government is to save life, it is not bound to maintain the labouring community at its normal level of comfort." Government of India Circular No. 44F, dated 9th June 1883, Report of the Indian Famine Commission, 1901, Office of the Superintendent of Government Printing, India (1901) 36 (emphasis supplied). Return to Text
  7. See particularly Conrad, D. "The Human Right to Basic Necessities of Life", Delhi Law Review Vols. 10 and 11, 1981-82; Baxi, Upendra (Ed.) The Right To Be Human (Lancer International, Delhi, 1987); Menon, N.R. Madhava (Ed.) Social Justice and Social Process in India (Indian Academy of Social Sciences, 1988). Return to Text
  8. Alston, P. and Tomasevski, K. (Eds.) The Right to Food, International Studies in Human Rights (Martinus Nijhoff Publishers, 1984); Tomasevski, K. (Ed.) The Right to Food-Guide through Applicable International Law, (Martinus Nijhoff Publishers, 1987); Macalister-Smith, Peter "The Notion of Development as a Right" in M.P. Singh (Ed.) Comparative Constitutional Law (Eastern Book Co., 1989); in the field of jurisprudence the following works are notable: Sampford, C.J.G. and Calligan, D J., Law, Rights and the Welfare State (Croom Helm, 1986); O'Neill Onora, Faces of Hunger-An Essay on Poverty, Justice and Development, (Allen & Unwin, London, 1986), Bard, R.L., "The Right to Food", Iowa Law Review, Vol. 70 (1984-85). Return to Text
  9. International Encyclopaedia of the Social Sciences, Vol. 4 (MacMillan Company & Free Press, 1968), pp. 275-80. Return to Text
  10. MeetingNeeds (Princeton University Press, 1987). Return to Text
  11. Id. at p. 36. Return to Text
  12. See Bay, Christian, "Human Needs and Political Education" and Nielsen, Kai, "True Needs, Rationality and Emancipation" in Ross Fitzgerald (Ed.) Human Needs and Politics (Pergamon Press, 1977) at pp. 1-25 and 142-156. Return to Text
  13. Braybrooke, David, op. cit. Return to Text
  14. McLellan (Id.) Karl Marx-Selected Writings (Oxford University Press, 1977) at 166. Return to Text
  15. See particularly Conrad, D., op. cit. at pp. 33-38. Return to Text
  16. See Baxi, Upendra "The New International Economic Order, Basic Needs and Rights: Notes towards Development of Right to Development" in D.A. Desai (Ed.) Role of Law and Judiciary in Transformation of Society, (Kamlakar Prakashan, New Delhi, 1984) at 178. Return to Text
  17. Mahavagga (Vinaypitaka), Rhys Davids (Edited and translated edition) Pali Text Society, London, 1980. Return to Text
  18. The U.N. Basic needs list has been formulated by J.F. Drewnowski. It is discussed in detail by David Braybrooke, op. cit. at pp. 28-29. Return to Text
  19. See Sandbrook, Richard, The Politics of Basic Needs (Heinemann, London, 1982) at pp. 7-16. Return to Text
  20. "A Theory of Human Motivation", Psychological Review, Vol. 50, 1943. Return to Text
  21. "Needs, Wants and Political Legitimacy", Canadian Journal of Political Science, Vol. 1, No. 3, 1968. Return to Text
  22. Bay, Christian, The Structure of Freedom (Standford University Press, 1970), p. 372. Return to Text
  23. According to a recent study of pavement-dwellers the authors found that for the absolute destitute the consciousness of a wider social environment was gradually being dimmed by the wretchedness of their existence. See Jaganthanan, Vijay, N. and Haldhar, Animesh "A case study of Pavement Dwellers in Calcutta" Economic and Political Weekly, February 11, 1989 at 315. Return to Text
  24. Conrad, D., op. cit. at 14. Return to Text
  25. See for a detailed account of famines in developing societies Amartya Sen, Poverty and Famines (Oxford University Press, 1981). Return to Text
  26. Hunger Among the Homeless: A Survey of 140 Shelters, Food Stamp Participation and Recommendations, Select Committee on Hunger, U.S. House of Representatives (U.S. Government Printing Office, Washington, 1987). Return to Text
  27. The weaker sections are generally known to suffer from a disability syndrome, but still it may not be difficult to identify a dominant disability in each case. Return to Text
  28. The latest trend of conceptualizing needs in terms of subaltern groups as self-perceived and individual-oriented is very similar to the idea advocated here. See Ryan, Michael Marxism and Deconstruction (John Hopkins University Press, 1985). Return to Text
  29. Social justice measures like protective discrimination, legal aid, to Scheduled Caste and Scheduled Tribes and women, debt abolition in case of bonded labour are instances of catering to specific target population needs, in a limited way. Return to Text
  30. According to the latest official estimate the percentage of population below poverty line has declined in the recent years, but that does not necessarily mean the absolute numbers might have changed substantially. Return to Text
  31. According to Dr Malcolm S. Adiseshiah the lower four levels are constituted by the following population groups:


    Rs 0-15 income group

    = 3.7 million


    Rs 15-21 income group

    = 17.0 million


    Rs 21-28 income group

    = 48.0 million


    Rs 28-43 income group

    = 82.0 million

    "Dimensions of War on Poverty", Mainstream, December 25, 1982 pp. 14-15. Return to Text
  32. See Fitzgerald, Ross, "Abraham Maslow's Hierarchy of Needs-An Exposition and Evaluation" in Human Needs and Politics, op. cit. at p. 37. Return to Text
  33. See Baxi, Upendra "From Human Rights to the Right to be Human: Some Heresies", in Right To Be Human, op. cit. at p. 186. Also see Conrad, D., op. cit. at p. 34. Return to Text
  34. Mariner, K. Wendy "Access to Health Care and Equal Protection of the Law: The Need for a New Heightened Scrutiny", American Journal of Law and Medicine, Vol. XII, Nos. 3 and 4,1986 at 348. Return to Text
  35. In this context special mention may be made of Article 41 (securing right to work, education and public assistance), Article 43 (securing living wage for workers), Article 45 (free and compulsory primary education), Article 46 (special promotion of educational and economic interests of Scheduled Castes and weaker sections) and Article 47 (obligation to raise level of nutrition, standard of living and public health). These Directives are mainly related to the basic needs of food and nutrition, education, health and right to work. Return to Text
  36. Such a view is supported by V.N. Shukla's Constitution of India (Seventh Edition), D.D. Basu's Constitutional Law of India (Fourth Edition). H.M. Seervai also opines similarly as follows: "Article 13 enforces the discipline of fundamental rights on all legislative power by declaring that any law contravening fundamental rights is void. Article 13 makes no exception in respect of any particular entry or entries conferring legislative power, either expressly or by necessary implication." Constitutional Law of India, Vol. 2 (N.M. Tripathi, Bombay, 1984) at p. 1646. Also see for this view B. Errabbi "Social Justice and Constitutional Bottlenecks" in Social Justice and Social Process in India, op. cit. p. 106. Return to Text
  37. Dworkin, R. Taking Rights Seriously (Duckworth, London, 1977) at p. 93. Return to Text
  38. "The Right Not to be Hungry" in P. Alston et al. (Eds.) Right to Food, op. cit. p. 70. Return to Text
  39. Id. at 73. Return to Text
  40. Though under Articles 17 and 23 of the Constitution untouchability abolition (need to companionship and communication) and prohibition of forced labour or begar (need to productive work) have been already recognised as Fundamental Rights. Return to Text
  41. Such an examination would rightfully fall in the domain of Jurisprudence. Return to Text
  42. See particularly for exposing the myth of orthodox rights thinking Sadurski, Wojciech, "Economic Rights and Basic Needs" in Sampford, CJ.G. et al. (Eds.) Law, Rights and the Welfare Stale, op. cit. at pp. 49-66. and Plant, Raymond "Needs, Agency ana Rights", in Law Rights and the Welfare State, op. cit. at pp. 22-47. Return to Text
  43. Historically speaking at one time there existed a close connection between inalienable rights and basic needs. See particularly Thomas Hobbes's Right of Nature which subsumes many basic needs, Leviathan, Part 1, Ch. 15. Return to Text
  44. Tripathi, P.K. "Directive Principles of State Policy: The Lawyer's Approach to Them, Hitherto Parochial, Injurious and Unconstitutional" Spotlights on Constitutional Interpretation, (N.M. Tripathi, Bombay, 1972) at p. 296. Return to Text
  45. 457 U.S. 202 (1982). Return to Text
  46. Michelman, Frank I., "Foreword: On Protecting The Poor Through the Fourteenth Amendment" 83 Hav. L. Rev. 7 (1969). Also see Michelman, "In Pursuit of Constitutional Welfare Rights: One view of Rawl's Theory of Justice", 121. Univ. of Pa. L Review, 1973, p. 964; Michelman; "Welfare Rights in a Constitutional Democracy", 1979, Wash U.L.Q. 659. Return to Text
  47. That is why scholars like Seervai dismiss the debate about the ultimate authority of the Constitution as purely academic. Seervai, H.M., Constitutional Law of India, Vol. 1, (Third Edition) at p. 141. Return to Text
  48. The capitalist or liberal democracies of the developed countries care not so much for the processes that generate needs as for those that relate to need fulfilment through statutorily created social security measures, like the one obtaining in West Germany, under the Federal Social Assistance Act, and that in the United States under the Social Security Act. Return to Text
  49. See supra Note 23. Return to Text
  50. The Duty to Relieve Suffering (University of Connecticut, and Newnham College, Cambridge, 1979). Return to Text
  51. "The Marxist Conception of Violence", Philosophy and Public Affairs, (1974). Return to Text
  52. "Famines, Affluence and Morality", Philosophy and Public Affairs, (1972). Return to Text
  53. "The Right Not to be Hungry" in The Right to Food, op. cit. Return to Text
  54. Azad Rickshaw Pullers Union v. State, 1980 Supp SCC 601. In this case Justice Krishna lyer (R.S. Pathak and O. Chinnappa Reddy, JJ. concurring) observed "The challenge in these writ petitions compels us to remind ourselves that under our constitutional system courts are heavens for the toiler, not the exploiter, for the weaker claimant of social justice not the stronger pretender who seeks to sustain the status quo ante by judicial writ in the name of fundamental right, at p. 14. Return to Text
  55. P.U.D.R. v. Union of India, (1982) 2 SCC 494. This case recognises basic need to productive work on fair wages. Also see (1982) 3 SCC 235. Return to Text
  56. Bandima Mukti Morcha v. Union of India, (1984) 3 SCC 161 : 1984 SCC (L&S) 389. This case relates to the basic need to reasonable conditions of work. Return to Text
  57. Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545. This case relates to the basic need relating to shelter, livelihood, etc. Also see Sodan Singh v. NDMC, (1989) 4 SCC 155 on rights of pavement hawkers. Return to Text
  58. Kali Das v. Govt. of J.K., (1987) 3 SCC 430. This case relates to the petition of a destitute for bare survival necessities Return to Text
  59. Justice Bhagwati and Justice Desai of the Supreme Court had in the mid-eighties become known for their activist views and indomitable faith in the capacity of the judiciary in transforming society Return to Text
  60. See Note 55 supra. Return to Text
  61. The institution of begar or forced labour was typically associated with the feudal mode of production, particularly in U.P., Bihar and other regions where Zamindari system prevailed. Return to Text
  62. The Asiad Workers case, (1982) 3 SCC 235 at 241. Return to Text
  63. See Note 56 supra. Return to Text
  64. The Bandhua Mazdoor case at p. 183. Return to Text
  65. Id. at pp. 183-84. Return to Text
  66. See Note 57 supra. Return to Text
  67. AIR 1988 Cal 136. Return to Text
  68. Id. at p. 141. Return to Text
  69. Box, Steven, Recession, Crime and Punishment (MacMillan Publication, 1987) at ix Return to Text
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