One of the most enterprising initiatives undertaken by the Supreme Court of India (the Court) has been the recognition of a legal standalone right to food which mandates the government to ensure basic sustainability of human life. However, the 2023 Global Hunger Index ranks India at a low 111th position out of 125 countries, with the highest child wasting rate in the world, reflecting acute undernutrition. This makes it imperative to highlight the recent trends in the constitutional adjudication of the right to food, which indicates a reduction in the standard of scrutiny of government (in)action.

The Court over the years, has recognised the constitutional right to food as an intrinsic part of the right to life and dignity. Such a judicial affirmation was subsequently captured and specifically provided for, through several legislations and policies. This paradigm shift sought to transform the approach from a welfare to a rights-based one. However, despite the presence of a systematic legal framework, non-enforcement and poor implementation of the provisions has made food security a distant dream.

Recently, this was evident when the Court dismissed a petition that sought directions to set-up community kitchens to combat hunger, malnutrition, and starvation. Community kitchens are establishments that distribute heathy and nutritious food, at an extremely affordable cost. The Court stated that such a direction was first, unnecessary considering the wide plethora of beneficial legislations; and second, bordered on judicial activism considering the separation of powers. Such an observation might seem to justify non-intervention; however, a closer analysis highlights the abdication of the Court’s constitutional duty of judicial review and preservation of fundamental rights. The Court has had a history of stepping in when faced with similar cases involving constitutional rights and hence, the shift away ought not to be termed as avoiding activism but rather rightful intervention.

First, the petitioners had argued that while there were several legislations, there was an additional need to establish community kitchens since the implementation of these schemes was evidentially ineffective. The petitioners wanted the government to engage with the malady of undernourishment, either through community kitchens or similar schemes. The Court in an earlier order had accordingly directed the state governments and union territories to co-operate within each other and the concerned stakeholders for an effective consideration of this prayer. After a delay of three years, the government rather than engaging with the petitioners, highlighted specific schemes and acts wherein free food-grains, cash maternity benefits, subsidies and ration cards were provided. Further, the government argued that these policies were being effectively monitored by the Child Development Services, Monitoring Mechanisms and Grievance Redressal Mechanisms. The Court, without probing any evidence or testimonies, readily agreed to these broad claims of the efficiency of the legal framework and refused the remedy requested by the petitioners. In doing so, the Court also refused to acknowledge the circularity of the problem, i.e., the petitioners had approached the Court due to the ineffective and absent implementation and enforcement of these legislative schemes. Denying the remedy based on the presence of these policies highlights the abdication of the Court’s duty in preserving constitutional rights. The government attempts to equate the mere presence of the policies with their effective implementation. The Court, rather than recognising this hiatus in legal reasoning and juxtaposing it with conditions on the ground, goes ahead and provides its imprimatur merely on the assurance that both the policies and the enforcement mechanisms are effective.

Second, the apprehension of the Court to judicially review and examine policy matters was evident. The Court observed that not only is the scope of review limited but also that the judiciary could neither examine the appropriateness of a policy nor advise the government to adopt a better, fairer or wiser alternative. While such an apprehension is legitimate, the Court arguably misunderstood its role and the intention behind the remedies sought. Herein, the Court was not being called upon to adjudicate the wisdom and soundness of the policy, but rather the abdication of legislative duty. Ineffective enforcement also indicated a violation of legislative provisions. While it might seem that the direction to establish community kitchens would be overstepping the separation of powers, it is imperative to recognise that such a direction was sought since the policies in place were ineffective in combating malnutrition, hunger, starvation and undernourishment.

As we navigate the enforcement of constitutional rights, the failure of the Supreme Court to strengthen the standard of scrutiny highlights a trend towards the creation of an ‘executive court’. Such observations directly affect realisation of constitutional rights, as the Court is increasingly satisfied by hollow assurances from the government without investigating the veracity of their claims. In particular, the court’s failure to investigate efficacy of enforcement and implementation of rights-furthering legislation, highlights a frightening future for the right to food in India.