Starvation Death

Rishabh Jain analyses as to why starvation death should made a criminal offence in India.

Introduction

Human Rights are universal, inalienable, indivisible and interdependent. No individual or government has the right to take away or deny these rights either directly or indirectly through an act or omission. The Right to Food is one such basic Human Right. India is a home to the largest undernourished population of the world with around 14.9% of our population being undernourished and 195.9 million people going home hungry every day.¹ Lakhs of people die or commit suicide in India each year because of hunger. Figures suggest that more than 3,00,000 children die every year in India because of hunger.² Many others battle the pangs of hunger throughout their lives and they ultimately get killed well before the other citizens who do not go to bed hungry. The Right to have Food is a Fundamental Right under Article 21 of the Constitution of India. The Hon’ble Supreme Court, in Chameli Singh v. State of Uttar Pradesh³ observed,

Article 39(a) of the Constitution states that it shall be the duty of the state to direct its policy towards achieving adequate means of livelihood for all citizens. Article 47 spells out the duty of the state to raise the nutritional level of the people. The Right to Food is enshrined in Article 21. The constitution thus makes this right guaranteed which can be enforced by virtue of the constitutional remedy provided under Article 32 of the Constitution.

The National Human Rights Commission, in a press release, has taken the view that, “the Right to Food is inherent to a life with dignity, and Article 21 of the Constitution of India which guarantees a fundamental right to life and personal liberty should be read with Articles 39(a) and 47 to understand the nature of the obligations of the State in order to ensure the effective realization of this right.⁴

Adolescents who do not have enough to eat have been found to be five times more likely to attempt to commit suicide than a well-fed adolescent. At least 60% people who live in homes with inadequate food have symptoms of suicide.⁵ Hunger not only stunts their bodies, but also their brains. Despite being a presence of the largest Public Distribution Scheme in India, there always have been cases regarding deaths and suicides primarily because of hunger. Although there is plenty of food available in the warehouses, distribution remains to be a major problem. Distribution “…amongst the very poor and the destitute is scarce and non-existent leading to malnourishment, starvation and other related problems.”⁶ Thus, it is the duty of the government through its public servants to ensure that no individual goes to sleep hungry.⁷ In spite of this duty, the government has repetitively failed to stop hunger deaths and hunger suicides.

Most deaths in India, are due to a combination of starvation and some other disease caused directly because of starvation and malnutrition. The immediate and final cause of the death that is written on the death certificate is often an infectious disease rather than starvation or hunger as such.⁸ Though those diseases are only caused by starvation, government is able to save its head by saying that the death is not due to starvation. This article aims to affix this duty on the government, government officials and public representatives towards the people of India by bringing involuntary death or suicide of any individual due to starvation and/or diseases directly caused due to starvation under the ambit of Culpable Homicide Simplicitor under Section 299 of Indian Penal Code or introduce new punishments to the government officials and public representatives in the Indian Penal Code, 1860[herein after as IPC] for the same, in the alternative.

India is a developing nation where, in the name of development, Members of Parliament (herein after as MPs) get Five Crores Rupees per annum in the name of Members of Parliament Local Area Development Scheme (MPLADS). Under this scheme, Every MP can suggest to the ‘District Collector/ District Magistrate/ Deputy Commissioner’ [herein after only as District Magistrate] for works to a maximum of Five Crore Rupees per annum to be taken up in his/her constituency.⁹ A similar scheme in the name of Members of Legislative Assembly Local Area Development Scheme (MLALADS) allows Members of Legislative Assembly (herein after as MLAs) to spend Rs. 2-4 Crores in the name of development in his/her own constituency. The District Collector/ District Magistrate/ Deputy Commissioner is the District Authority to implement MPLADS in his/her district.¹⁰ He also gets funds which are kept to his disposal in case of emergencies. The MPs and the MLAs, being the elected representative of the people of his/her constituency and the District Magistrate being the sole implementing authority should be held responsible by the people and to the people. The funds should initially be used to make sure that the residents of his/her constituency or district live a healthy live or at least the residents live. A sum of Rs. 2989 crore was spent on the building of Sardar Vallabhbhai Patel’s Statue of Unity on Sandhu island in Gujrat. The sanctioners of the budget for this statue should hang themselves in shame because such expenditure is a total waste of money in a country where the government has constantly failed to fulfill the basic human right to food. A nation develops when the people of that nation develop. A form of development that cannot provide even two score meal to each person of a country cannot even be called development. The initial task is to make sure that no person dies because of lack of basic human necessaries. The other developmental plans are secondary. It does not matter how fast the economy growth of a country is when lakhs of people are dying because they are denied a basic right. Hunger death is becoming the tragic reality of this country and it is nothing short of a national shame. The starvation death of three girls below the age of nine in Delhi’s Mandawali area in 2018 shocked the conscience of every individual. The post-mortem reports revealed that their stomachs did not had even a single trace of food or water.

They had not eaten for many days and there was zero grams of fat on their bodies.¹¹ “It is a fact that 3,000 children die of malnutrition in the country every day…...Clever governments are afraid of telling people that death by hunger is a bitter fact of life in the country even today. That’s why the post-mortem reports always say that the person died of malnutrition.”¹²

According to the doctrine of parens patriae, “Concept of parens patriae recognises the State as protector of its citizens as parent particularly when citizens are not in a position to protect themselves.”¹³ Hence, in state of extreme poverty, when the citizens do not have food, the state assumes the role of a guardian and is liable thereafter as a guardian. According to the Angola Penal Code, “If the person with right to food is a pregnant woman and the lack of food or assistance determines the endangering of pregnancy termination, the penalty is imprisonment from 1 to 5 years.”¹⁴ Similarly, as a guardian is liable for killing a child in the womb of a woman, the state being the guardian should be liable for every person who has died solely because of starvation. But, just making the government accountable and the State liable to pay for every death/suicide due to hunger, will not do any good because the implementation machinery continues to be a failure. Until and unless the implementation machinery, which includes prima facie public representatives who have a fund at their disposal and the District Magistrate are made liable in their personal capacity under the Indian Penal Code, the implementation cannot be made right. Only in the event when these parties are bound in their personal capacity will they ensure that no such starvation death occurs in their constituency/district. As long as the liability is just upon the state, public servants/representatives will have no effect of any life being lost because of their direct or indirect negligence. It is submitted that for the realization of the right to food, it is necessary that a suit shall be filed against:

in every case of death or suicide where the sole cause of such death/ suicide is involuntary hunger.

Though it is a duty of MPs and MLAs in their capacity as a public representative to be accountable to the people, they fail to recognize such duties and explicitly deny any suffering of the people in their constituency. In a conversation with Varun Gandhi, an MP from Sultanpur in Uttar Pradesh, he outrightly rejected the claim that people die because of hunger. According to him, “...people in India kill themselves because they are in debt, not because they are starving.” This becomes the best way for any person to escape his responsibilities. An amendment in the Indian Penal code criminalizing such hunger death in order to make such MPs and MLAs personally liable so that they may not be able to escape their responsibilities is thus very necessary in light of the honest beliefs and comments of such public representatives. According to S. 25(1) of the National Food Security Act, 2013 [herein after as the NFSA], “The local authorities shall be responsible for the proper implementation of this Act in their respective areas.” ‘Local Authorities’ is defined u/s 2(8) of NFSA as anything that “includes Panchayat, municipality, district board, cantonment board, town planning authority.” Thus, District Magistrate should also be included in the persons to be made the accused.

The Hon’ble Supreme Court of India in the case of Arjun Gopal & Ors. v. Union of India & Ors.¹⁵ , while limiting the time of bursting firecrackers on different occasions gave a direction,

The courts have thus, time and again held the public officers and representatives liable in their personal capacities if they fail to perform their task. Therefore, a law to personally hold these officials and representatives personally liable is perfectly in consonant with the decisions by the courts.

The existing state: The National Food Security Act, 2013

The Government of India had enacted the National Food Security Act, with an aim to “……provide for food and nutritional security in human life cycle approach”¹⁶ . Section 33 of the NFSA says that,

There are laws already in place to make sure that people get their Right to Food. The NFSA is a piece of legislation enacted by the parliament to tackle the problem of malnutrition in the country but, the Act remains to be unimplemented all over the country. S. 28 of NFSA mandates state governments to implement the grievance redressal mechanism to ensure that NFSA is implemented and all people get their Right to Food but, “the Delhi government has failed to put in place this statutory framework despite repeated directions from the Supreme Court and the Delhi High Court. Lack of accountability systems means peoples complaints of denial of food security, like not having a ration card, non-functional anganwadis etc. remain unaddressed.”¹⁸ The same problem exists not only in Delhi but in all States across the country.

Moreover, even if these redressal mechanisms are functioning, they fail to achieve the desired result. The poorest of the poor who actually have a danger of death due to hunger hovering over their heads cannot access these redressal mechanisms in NFSA because they do hot even have enough resources to buy food. Therefore, they definitely do not have resources to file a complaint to the District Grievance Redressal Officer or file an appeal before the State Food Commission for violation of their Right to Food.

Chapter VIII and Chapter IX of NFSA lays down the obligations of the Central Government and the State Government for food security but they do not lay down any penalties for violations of fulfilling such obligations by the State or Central Government. To avail food from the state or central machinery, a person mandatorily should possess relevant documents such as Ration card or Aadhar Card. Even if a person not possessing an Aadhar Card is dying due to hunger in front of the Public Distribution Shop, the vendor will not give him ration. There are lakhs of such citizens who are not able to benefit the provisions of NFSA because they do not possess a ration card.¹⁹ NFSA provides food only to citizens and not to the other people who are domiciled in India but not a citizen of India. These formalities end up excluding the neediest and the marginalized. The Hon’ble Madras High Court, in P. Ulaganathan & Ors. v. The Government of India & Ors.²⁰ , held that even illegal migrants are entitled to the fundamental right to life under Article 21. “It applies to all persons, citizens and non-citizens alike. It would apply to refugees and asylum seekers.” Thus, the Right to food under Article 21 of the Constitution is provided to all people and not just the citizens. The lack of ample and functional Public Distribution Shops in designated areas, the lack of access to justice by the needy and the marginalized along with the absence of accountability of the government make NFSA an ineffective piece of legislation that has failed to protect the Fundamental Right of Food to every person. Thus, there arises a need for a newer interpretation of law or a new law to curb hunger deaths.

India’s International Obligations

There is a legal obligation of the country to assure the world that all people living in India are adequately nourished. India, being a signatory of the International Covenant on Economic, Social and Cultural Rights 1966, is bound by Article 11(1) of the same which reads as,

In the World Food Summit Plan of Action 1996 Adopted by the World Food Summit, Rome, the signatories identified, “We recognize the need to adopt policies conducive to investment in human resource development, research and infrastructure for achieving food security…. we will implement policies aimed at eradicating poverty and inequality and improving physical and economic access by all, at all times, to sufficient, nutritionally adequate and safe food and its effective utilization.” ²² Objective 7.4 called upon to,

The United Nation’s report on the Right to Adequate food states that it is the immediate obligation of the state to take steps such as,

All these international treaties put an obligation on our country to adopt new policies and laws for better implementation of Right to Food for all and complete abolition of hunger deaths or suicide. They allow for newer recourse mechanisms or new laws to ensure that this right is not violated. Article 51(c) of the Constitution states that the state shall endeavor to “foster respect for international law and treaty obligations in the dealings of organised peoples with one another.” The country needs to adopt better laws to respect these international treaties.

Recommended Interpretation: Wherein the MP, MLA, District Magistrate had an explicit knowledge about the victim’s condition

In all cases where the MP or the MLA or the District Magistrate had an explicit knowledge about the condition of the victim, the knowledge being received either from the victim directly or from any other source, all/any of the persons from the above mentioned three who had the knowledge should be charged with Culpable Homicide Simplicitor under Section 299 of IPC which states,

In the event of a death or suicide due to hunger, a death is caused, and the direct cause of the death is an omission made by the MP, MLA or District Magistrate to provide the residents of their constituency/district with appropriate food so as to sustain their life. According to Section 32 of the IPC, “words which refer to acts done extend also to illegal omissions.” ²⁵ Any reasonable person can, with due diligence, assume that lack of food is likely to cause death. Hence, illegal omission to aid the victim to provide him/her sufficient food grains out of the fund at their disposal despite having the knowledge that their omission to provide the victim with appropriate food grains is likely to cause death tantamount to Culpable Homicide u/s 299 of IPC punishable with a maximum imprisonment of 10 years or with fine or both u/s 304 of IPC. Emphasis should be supplied on Illustration (b) of Section 37 of the IPC, “A and B are joint jailors, and as such have the charge of Z, a prisoner, alternately for six hours at a time. A and B, intending to cause Z’s death, knowingly co-operate in causing that effect by illegally omitting, each during the time of his attendance, to furnish Z with food supplied to them for that purpose. Z dies of hunger. Both A and B are guilty of the murder of Z.” This is a similar incidence because of which illegal omission to do an act has made the jailors liable of murder. The only difference in holding the MP, MLA and District Magistrate liable for Culpable Homicide is that they did not had intention to kill the victim unlike the jailors in illustration (b).

The US Court charged the parents of a 6-year-old child with murder for forcefully starving him to death by not providing him with food for about two years. The Court sentenced the mother and father for a term of imprisonment for 20 years and 25 years respectively. ²⁶ Applying the doctrine of parens patriae , the state and its agents are the parents of every person. Thus, in all cases where a person dies without being forcefully starved by any other person, the state should be liable for first degree murder. The courts though, cannot hold the accused guilty of murder u/s 300 of IPC because firstly, there is no intention of the accused to cause death and secondly, there is a likelihood of death. It cannot be surely said that death will happen in all probability. Therefore, this qualifies as a crime u/s 299 and not u/s 300 of IPC.

In the case of People’s Union for Civil Liberties v. Union of India & Ors.²⁷ , the Hon’ble Supreme Court of India passed a series of order directing the government to implement various public distribution and poverty-alleviation schemes. The Court also held that,

The courts shall, therefore, include such an interpretation of Section 299 within its ambit provided that, if the accused had taken into account the deceased’s requests and ordered the respective public official to provide appropriate food to that particular individual, the accused shall not be liable. Instead, that public official, who failed to do his duty, will be liable for the same.

Wherein the MP, MLA, District Magistrate did not have an explicit knowledge about the victim’s condition

Since it is the duty of the Government to make sure that adequate food grains are made available to all the people, the public servants cannot run away from their obligations even after enacting legislations. A person, who have no knowledge about the victim’s condition can only be booked u/s 304A of the existing form of IPC. According to Section 304A of the IPC,

To hold a person liable under this section, there must be gross negligence on the part of the person who is to be held liable. “To impose criminal liability under Sec. 304A IPC, it is necessary that the death should have been the direct result of a rash or negligent act of the accused, and that act must be the proximate and efficient cause without the intervention of another’s negligence. It must be the cause causans; it is not enough that it may have been the causa sine qua non.” ³⁰ It may be argued that though there is negligence on the part of these public representatives but, since they did not had any knowledge about the condition of the deceased, they cannot be held liable. Also, the negligence is not the cause causans in this case because poverty and other factors also contributed to his starvation death. The negligence of the MP, MLA, District Magistrate (only in case when they do not have knowledge of the requirements of the deceased) may be the causa sine qua non but is not the only proximate and efficient cause. Hence, though it is a duty of MP, MLA, District Magistrate to ensure no one dies of starvation, they cannot be held liable under this section and they will escape punishment in this case by just laying down the excuse that they did not had any knowledge for the same. In India, the poorest of the poor who actually have a fear of hunger death do not have enough resources to make the MP, MLA, or District Magistrate aware about his/her condition. Thus, this is a loophole in the India legal system where people die and since these representatives and officials have no knowledge about condition of the victim, they escape unpunished. To fix this loophole, a new crime has to be inserted in IPC to take into account this ambit also.

Alternative Remedy

Thus, the only way to hold MP, MLA or District Magistrate liable will be to prove that they had explicit knowledge about the condition of the victim before his/her death and it will be very difficult to prove the same. The most fundamental mechanism to ensure accountability in such cases is to make a penal offence which is cognizable so that the right holders that is, the people can have effective remedy by directly complaining to the police and lodging an FIR u/s 154 of Criminal Procedure Code, 1973. This will ensure that the MP, MLA and District Magistrate take these matters seriously and have their behaviors corrected. Hence, for “justice, equity and good conscience” , keeping in mind the order of the Hon’ble Supreme Court in People’s Union for Civil Liberties v. Union of India & Ors. and in light of the International conventions ratified by India which reaffirm the need of making laws to curb hunger deaths, there should be an amendment in the Indian Penal Code 1860 so as to hold the MP, MLA or District Magistrate of the concerned constituency/district, where the death or suicide because of starvation has taken place, directly liable irrespective of whether it was in the knowledge of the concerned authority or not. This punishment, if introduced in the IPC, could prevent a further increase in the number of death or suicide cases because of starvation to a great extent. It would prevent hunger from becoming the gunpowder for the people. As a result of the amendment, these individuals, if made liable in their personal capacity, would always make sure that they do their duty towards the public.

Recommended Amendment :

AMENDMENTS IN THE INDIAN PENAL CODE, 1860

After Section 304B of the penal code, the following section shall be inserted, namely:-

AMENDMENT TO THE CODE OF CRIMINAL PROCEDURE, 1973

In the First Schedule to the Code of Criminal Procedure, under the heading “I. – OFFENCES UNDER THE INDIAN PENAL CODE”, after the entries relating to section 304B, the following entries shall be inserted, namely: