The Constitutionality of Basic Human Needs An Ignored Area of Human Discourse 4 Supreme Court Cases by B B Pandey

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CONSTITUTIONAL LAW
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Cite as : (1989) 4 SCC (Jour) 1
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"The people of Kalahandi, in order to save Search Case-Law
themselves from starvation deaths, are compelled to Search Bookstore
subject themselves to distress sale of labour on a Search All
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 Subjectwise Listing of Articles
forced to sell their children... the starvation deaths Chronological Listing of
of the inhabitants of the districts of Koraput and Articles
Kalahand are due to utter negligence and Articles Exclusively on the
callousness of the administration and the Internet
Home Government of Orissa. It is alleged that the More Articles...
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New Releases starvation deaths, drought, diseases and famine
have been the continuing phenomena in the said two
districts since 1985." From the judgment of Mr
Hart's Concept of Law
Justice M.M. Dutt (Mr Justice K.N. Saikia concurring) and the Indian Constitution
in Kishen Pattanayak v. State of Orissa1 The American Bar
Association
The issues raised in the above extracted two writ petitions are The Patents (Second
easily the most compelling and urgent concerns for any Amendment) Bill, 1999 - An
Analysis
civilized human society. The predicament of human beings Effects of Adoption -
facing the prospects of starvation death, distress sale of crops, Some Unsolved Issues
labour and even children, and the helplessness of those who are Dr Ambedkar and Article
unable to organise the minimum basic necessities of life is too 356 of the Constitution
Decision of the Supreme
grim a reality for any kind of detached debate. Ordinarily one Court in S.R. Bommai v.
expected that the happenings narrated in the petitions ought to Union Of India: A Critique
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
https://www.ebc-india.com/lawyer/articles/89v4a1.htm 1/18
most of them have been living below the poverty line. Also that Regulation of Defamation
"the happening of one or two cases of starvation deaths cannot over the Internet :
altogether be ruled out"3 (the administration as well as the Jurisdictional Issues
District Judge appointed by the Supreme Court to enquire Third Party Intervention in
Criminal Litigation
about the allegations had flatly denied starvation deaths but Appointment of Non-
accepted the fact of death due to 'old age' and progressive Member of Parliament or
malnutrition). Third, the court came all out in the defence of State Legislature as Minister
— Scope
the administration by arriving at a conclusion that there was no Children — Supreme
reason to doubt that adequate measures were being taken for Asset of the Nation
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
67
Ltd. 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 = 3.7
I
group million
Rs 15-21 income = 17.0
II
group million
Rs 21-28 income = 48.0
III
group million
Rs 28-43 income = 82.0
IV
group 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
64. The Bandhua Mazdoor case at p. 183. Return to Text
65. Id. at pp. 183-84. 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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A. The Concept of Basic Human Needs

Satisfaction of human needs is widely accepted as a

(i) Identification of Human Needs

The identification of social, learnt or acquired human needs

(ii) Prioritizing Human Needs

Any programme of social action based on human needs has to

The United Nations18 has identified the following list of basic

6. Security (physical safety and economic security)

Similarly, the International Labour Organisation has included

However, in some societies even the actualization of these

The idea of prioritizing human needs has assumed special

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

Talking of basic human needs at abstract level serves little

Though the social categorisation of the 'needy' on the basis of

B. Constitutional Foundations of Basic Human Needs:

The Constitution provides not only a legal framework for the

(i) Hierarchy of Rights

Those acquainted with the history and developments of legal

How do basic human needs fare in the hierarchy of rights under

(ii) Basic Needs as Aspects of Equality

The Article 14 guarantee of "equality before the law or the

Founding basic need claims on equal protection clause is

(iii) Basic Needs as the Essence of Perambulatory Resolve

The Preamble to the Indian Constitution is notable for two

What are the implications of locating the ultimate sovereignty

Apart from the fiction of writing the Constitution in the name

Though all the four ideals mentioned in the Preamble have

Finally, there is yet another aspect of the Preamble that has

C. Securing Basic Human Needs through the Judiciary

The urge to secure post-Emergency legitimisation did inspire

Coming to a critical examination of the judicial performance

D. Conceptual Ambivalence regarding Basic Needs

Though the higher judiciary in the post-Emergency period

In Bandhua Mazdoor case63 basic need issues relating to

E. Lukewarm Commitment to Basic Needs

Despite certain progressive trends it is still not possible to infer

Finally, in the Food Petitions the Court's commitment even to

* Professor of Law, Delhi University Return to Text

1. 1989 Supp 1 SCC 258. Hereinafter referred to as the

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