Cases relating to Right to Food

Presented by: Anisha Bhusal

Roll no: 13
Section A
 Some prominent Cases relating to right to
food

1) Bajuddin Miya and Others vs. GON, Office of

the Prime Minister and the Council of Ministers
2) Adv. Prakash Mani Sharma and Others v. GON and
Others, NKP (2068)
3) Bhupendra bahadur Tamang Theeng Vs.
Government of Nepal, Office of PM
1) Bajuddin Miya and Others vs. GON, Office of the Prime Minister and the
Council of Ministers

• Case: Certiorari including Mandamus (Food Sovereignty)

• Decision date: 2065/11/05
• Decision No.: 8169
• N.K.P: 2066
• Supreme Court: Joint Bench
• Judges: Hon. Justice Balaram K.C
Hon. Justice Krishna Prasad Upadhyaya

•Applicant: Bajuddin Miya and Others

•Respondent: GON, Office of the Prime Minister and the Council
of Ministers
Fact of the case
• Writ Petition was filed by the citizens living in the vicinity of Koshi
Tappu Wildlife Reserve in Sunsari District.
• There were not adequate compounds, walls or any other barriers in the
border area for control of wild animals of Koshi Tappu reserve area
protected by the state.
• Writ Petition was filed to issue an injunction order in the name of
respondents to provide compensation to the petitioners for damages to
the crops(sugarcane) amounting to Rs.77,18,859.80 and provide
necessary policy rules or additional legal and budget (financial)
compensation in this regard to the petitioners as well as a compound
with fence in the reservation for damages done by wild animals
(wild elephants, Wild buffalo Wild pig ) and to the crops planted by
petitioners
 On the basis of the application given by petitioners, the site inspection was
done by the National Parks and Wildlife Conservation Department to verify
the actual damage caused and the recommendation was also done by District
Administration Office and the Village Development Committee but no any
action was taken regarding the complaint.

 State has responsibility to prevent damage caused by the state-protected wild

animals and to provide appropriate compensation if the damage is caused by
wild animals for any reason. The state cannot escape under any circumstances
from providing compensation. For which, instead of saying that there are no
necessary policies, rules, and laws (required budget), compensation should be
made available by formulating the necessary policies, rules, laws, and
budgets to provide proper compensation for unmet damages.
 Written Statement of the Respondants
• Office of the Prime Minister and the Council of Ministers:
State government has been solving these problems as long as its resources and
capabilities are sufficient and will continue to do so in the future. As there is no
immediate national policy in this regard and when the policy is prepared in this
regard, the demands of the opponents will also be addressed, as there is no need to
issue a writ immediately. It should be cancelled.

• Ministry of Forest and Land Conservation and the Department of

National Parks and Wildlife Conservation :
There is no legal provision in the National Parks and Wildlife Protection Act, 2029,
Wildlife Reserves Regulations, 2034 and Madhwarti Area Management Regulations,
2052 regarding compensation if the wild animals of the Bali Nali National Park and
Wildlife Reserve caused damage to the crops planted on the private land. Thus, the
petition must be dismissed.
• Ministry of Finance:
Compensation cannot be given due to the lack of
legal provisions to compensate for the damage
caused by the wild animals in such cases.
 Decision of the Supreme Court
 State must compensate if the crops are damaged by the
animals protected by the state within the reservation must not
cause damage to the crops of the citizens.
 Directive order has been issued in the name of the Nepal
government to permanently resolve and provide compensation
to such an important and sensitive matter related to the
fundamental right of citizens to be free from hunger i.e. Right
To Food and to make policies regarding the laws dealing with
compensation due to damage caused by protected wild
animals within the reservation area as soon as possible
 Precedents Established :

 State has the following duties to fulfill the right of food

sovereignty given to the citizens by the constitution.
(a) Citizens produce their own food and become self-sufficient;
(b) The State shall ensure adequate food security and storage by
making food available and supplied to the market so that its citizens
are not deprived of food;
(c) The state should assist in food production, marketing and
conservation to achieve the right of citizens to food sovereignty,
(d) To create conditions and environment where all citizens have
easy access to food.
 State should create an appropriate environment by
making necessary laws and policies and other necessary
provisions for access to food for every citizen to enjoy
the fundamental right of food sovereignty.

 Compensation to be provides by the state to protect the

basic right of citizens to be freed from hunger i.e. Right
to Food and basic rights related to profession and
business.
 Related laws
 Article 18 of the Interim Constitution of
Nepal, 2063: Right to food

 Article 11(2) of International Covenant on

Economic, Social and Cultural Rights
(ICESCR) 1966: Right to food
 2) Adv. Prakash Mani Sharma and Others v. GON
and Others, NKP (2068)
Case Details
• Decision Date: 2067/02/05/04
• Decision No.: 8540, NKP 2068, Vol. 01, Writ No. 0149
• Petitioner: Adv. Prakash Mani Sharma on behalf of Pro
Public, Adv Prakash Mani Sharma on his own right
• Defendant: Prime Minister, Office of Council of Ministers
• Subject:Mandamus
• Decided By: Supreme Court Division Bench Hon. Justice
Balram K.C Hon. Justice Bharat Raj Upreti
• Right to Food and Food Sovereignty
Facts of the Case
Among the many human rights related to life, right to Food is a natural human right of
every person. It is stipulated in Article 18 (3) of the Interim Constitution of Nepal, 2063
that every citizen shall have the right to food as provided by law. The right to food is
provided as a fundamental right.
• The Universal Declaration of Human Rights, 1948, and the Covenant on Economic,
Social and Cultural Rights, 1966 also stipulate the right to food and nutrition as an
important human right inherent to life.
• Out of 75 districts in Nepal, 32 districts have shortage of food grains and 16 districts
are also severely affected by food shortage.
• According to the Food Security Bulletin published in 2008 by the Government of Nepal
Ministry of Agriculture and the World Food Program on hunger in Nepal, Kalikot, Humla,
Mugu, Dolpa, Bajura, Acham, Dailekh, Darchula, Baitadi, Dadeldhura, Rukum were
affected due to food shortage. And it was seen that Jajarkot was affected. It seems that
more than 3,00,000 people are facing starvation in the above mentioned districts.
• Writ Petition has been filed under Public Interest Litigation as provided by the Article
107(2) of the Interim Constitution, 2007.
 Written Response of Defendant
• • Respecting the Right to food and right of food security of every citizen the state
has made arrangements to implement 3 year interim plan which also include
program of food distribution by Nepal Khadya Sansthan in remote districts. GON
through budget of fiscal year 2065/66, has presented a program to increase the
food storage capacity and effective supply of the Nepal Khadya Sansthan in the
remote hilly districts where the local food production is not enough to feed all the
residents throughout the year. Policy to construct modern food warehouses , no
obstruction in transportation via subsidiary roads and highways are initiated by
GON.
• • In the districts where there is a shortage of food grains, an additional Rs. 16
crores was allocated by the budget.A special program for food supply 2065/66 has
also been formulated. The ministry has also been supervising, monitoring and
evaluating the scheme run by Nepal Khadya Sansthan.
• • Programs such as agricultural development project, community animal
development project, long-term agricultural planning support program, have been
conducted specially in Karnali zone to increase agricultural productivity.
Legal Questions
1. Whether the right to food and the right against
hunger is a fundamental right or not ?
2. Whether the citizen’s access to food fall under the right
to food security guaranteed by Article 18(3) of the Interim
Constitution of Nepal, 2063 or not?
3. Is the government liable to compensate people if they
die of starvation or not?
4. What is the government's role in the food shortage
that occurs in different parts of Nepal every year due to
the geographical makeup and natural calamities of Nepal?
 Relevant Legal Provisions
Interim Constitution of Nepal, 2063 B.S
• Art. 12 (1) Every person shall have the right to live with dignity, and no law which provides for
capital punishment shall be made.
• Art. 18 (1) Every citizen shall have the right to employment as provided for in the law.
• Art. 18 (2) Women, labourers, the aged, disabled as well as incapacitated and helpless
citizens shall have the right to social security as provided for in the law.
• Art. 18 (3) Every citizen has the right to food security as provided for in the law Art. 33(h) The
State shall have the responsibility to pursue a policy of establishing the rights of all citizens to
education, health, housing, employment and food sovereignty.
• Art. 35(2). The State shall pursue a policy of economic development through governmental,
cooperative and private sectors.
• Art. 35(6) The State shall develop the agriculture sector as an industry by encouraging
farmers and increasing productivity, and by creating conditions for economic progress of the
majority of the people who are dependent on agriculture.
• Art. 35(12)The State shall, for the purpose of national development, pursue a policy of
attracting foreign capital and technology, giving priority to national investment. Interim
Constitution of Nepal, 2063 (2007)
 Decision of Supreme Court
 Although the constitution does not say the right to food or freedom from hunger as
fundamental right in any article, Article 12(1) provides the right to live with dignity to all
citizens, so the right to food is the right of every citizen. In the absence of the right to food,
the right to freedom cannot be enjoyed and the life of the lack of food is not dignified.
Therefore, freedom and Right to Food are Mutually Inclusive rights of each other(Question 1).
• Article 12(3)(f), the right to employment and social security in Article 18 fully manifests the
right to food. It is the corresponding duty of the state to provide employment by creating
economic programs, policies, laws and favourable environment. After getting employment
opportunities, one automatically gets access to food to get the right to food. Therefore, in order
to ensure that every person has the right to food, Article 12(3)(f) provides the right to do business
and Article 18 (1) provides the right to employment to all citizens. Article 18(2) , Right to social
security protects the Right to food of those groups who are unable to exercise the right to
unemployment due to health or age issues.(Question 2)
• In order to enjoy the Right to Food, not only should food be available, but food should also be
accessible and affordable for every citizen.
• Along with the right to live with dignity, the Right to food, clothing, healthcare, residence,
water, education and social security are also the fundamental rights of every citizen. These rights
are those which the state gradually realises progressively.
 • In Chameli singh v. States of U.P., SC of India interpreted that if rights such as right
to food are not ensured, right to a dignified life cannot be fully realised. Similar
opinion was given by Allahabad HC in the case of S.K. Garg V, State of U.P. regarding
to the right to water. 7
• Due to untimely arrival of monsoon, or due to heavy rains, washing away of fields,
houses, grain, etc. due to landslide from time to time, there is shortage of food in
different districts of Nepal and famine situation is created.If the people starve to
death due to famine due to non-supply or non-availability of food, then the
government should take responsibility for it. As the petitioner has not submitted any
official statistics and details of how many people died due to starvation and what
the government did not do, no order should be made in this regard(Question 3).
• The court has already provided Interim order regarding the role of government in
the case of Bajjudin Miya and Others v. GON and others, on 2065/06/09 for the
remedy and availability of food materials in all districts affected by famine.
(Question 4)
 • SC dismissed the writ petition to the extent
that no other order has to be made for past
events in relation to this petition.
• The court issues directive order that it is the
constitutional duty of the State to ensure food
accessibility and availability during the time of
scarcity by importing and if possible for free of
charge and to make timely arrangements to
prevent scarcity of food in the future
 3) Bhupendra bahadur Tamang Theeng Vs.
Government of Nepal, Office of PM
Details of the case
• Plaintiff:Bhupendra Bahadur Tamang Thing
• Defendant: Government of Nepal, Office of PM,
Ktm
• Decision Number: 9876 N.K.P: 2074
• Decision Date: 2073/09/13
Decided By: Division Bench of Supreme Court
 Honorable Judge Deepak Kumar Karki
 Honorable Judge Dr. Anandmohan Bhattarai
Facts of the case
• According to Human Rights Commission Act, 2053 Section 2 (f) "Human
Rights" means the rights relating to life, liberty, equality and dignity of the
individual guaranteed by the Constitution and other prevailing laws and
such other rights as are embodied in the international treaties relating to
human rights to which Nepal is a party.
• And Consumer Protection Act, 2054 Section 2 (i) (2) sub-standard consumer
goods are the Consumer goods which are stale, rotten or stored or prepared in dirty
or toxic conditions or in which any chemical, color or flavor has been used, so that
they become harmful to health.
• 2 (l) "Consumers Association" means an association established under prevailing law
with the objective of protecting and promoting the rights and interests of consumers.
• Section 4 : Function, Power and Duties of the Council: (b) To disseminate or cause to
disseminate information relating to the rights and interests of consumers in order to
inform them about the standard of goods and services so as to protect them in matters
concerning consumer goods and services.
• (c) To inform or cause to inform consumers about the prices, quality,
quantity and purity of consumer goods and services, as well as about
unfair trade practices concerning them.
• Section 10 : Prohibited Actions regarding consumer goods and services ;
(e) To produce, sell or supply any of the consumer goods or services
which may cause harm to the health of the consumers’.
• Section 13: Power of GON to conduct inquiry and inspection ;
Government of Nepal shall take necessary action according to prevailing
laws against any producer, dealer, agent, vendor, individual or institution
found guilty through inquiry and inspection conducted and provision of
penalties has been ensured on section 18 of the same Act.
• World Food Organization was established to ensure right to life. WFP has
been distributing food to different parts of Nepal with the permission of
Government of Nepal. WFP distributed stale, rotten sub standard rice at
Jajarkot district on the year 2066. Regarding this context, on the date of
2066/04/24 Nepal Human Rights Commission organized press
conference at Nepalgunj. However, Government of Nepal does not show
any concern towards this issue which is directly related to the health.
• Hence, In the year 2072, the state is facing earthquake and its aftershock, in
the name of distribution of food to the citizens affected by the earthquake, the
World Food Organization, Nepal Red Cross Society, Save the Children jointly
distributed food including rice and pulses by purchasing rotten food items at a
lesser price and increased the bills, causing a scam in the economy of Nepal
and affecting the health of Nepali. Stale rice was distributed to the residents of
the Laprak, Gorkha district which affected the fundamental right to life.
• After the publication of this news on paper, GON sent a team for investigation.
During inspection, World Food did not clearly show the food items in its
warehouse during investigation.
• Therefore, with the joint cooperation of World Food Organization, Save the
Children, Red Cross Society, they were providing stale and rotten rice to the
Nepali People and in case eating such inedible food, right to life of a person is
damaged. Also, World food organization has brought rotten rice with the help
of employees of Ministry of Commerce and Supply.
• Rotten Pulses and rice are still hidden in warehouse and distributed to Nepali
with constant adulteration as there is a suspicion that human causalities may
occur, as it is a matter of life, health, welfare and concern of Nepali, public
awareness and educating people should be adopted to minimize the loss of life.
• As per, Article 107 sub article 2 of the Interim Constitution of
Nepal 2063, the petitioner petitioned before the honorable
court to issue appropriate injuction or directives in the name of
GON.
Claims of the Petitioner
• It is necessary to investigate what kind of works has been done and
what kind of weakness has caused this problem that directly affects
the right to health of the people due to the distribution of stale and
rotten rice.
• Investigation by the government about the abuse done in the name of
earthquake rescue and relief distribution has to be done by forming a
commission and the culprits should be punished and they should be
careful and alert to avoid repeating the same errors.
• Since, Nepal is a earthquake prone area and geologist are predicting
the possibility of an even bigger earthquake in the future, all state
agencies should be prepared in the name of this opposition in order
to avoid the same situation as the past and claims the injunction or
directive order for GoN.
Response from the Respondant
• Government of Nepal is committed and proactive on implementing the
prevailing legal system to protect the interest of the consumers.
• In this process, National Human Rights Commission as mentioned on the
letter dated on 2072/02/17, letter was sent to Ministry of Commerce and
Supply, WPF for providing substandard rice in Kavre palanchwok district
and the Nepal Red Cross Society kavrepalanchwok branch distributing such
rice to investigate and take action as possible to complete whatever
procedures are required according to prevailing law.
• Inedible rice and food items were directed to destroy as per procedure.
• The GON is determined to protect the health related rights of the citizens
provided by the Constitution . In this regard, the GON is aware of the
concerns and the concern raised by writ petitioner and the peoples right.
• Therefore, Office of PM and office of Chief secretary jointly request the
court to dismiss the writ petition.
Decisions
• Questions that needs to be answered
by the Court
1. What is the nature of the dispute raised in the petition?
2. What kind of constitutional rights is violated by the
distribution of contaminated or sub-standard food?
3. What is the role of the state and the international
community in the practice of Economic, Social and Cultural
rights in relation to food ?
4. Whether the order should be directed according to the claim
of petitioner or not?
• While answering the first question, the court said that,; the petitioner did not
mentioned the defendant who has been distributing the sub standard goods and
inedible foods. Also, the rights, jurisdictions of those bodies has not been
mentioned. This writ has been filed on the basis of the news mentioned on the
newspaper. However, the court has to accept and look after the issues related to
public rights.
• It is found that those substandard goods found has been destroyed as per law.
• It has been evident that huge population of Nepal has been the victim of food
crisis at normal conditions too. On the other hand, Constitution has ensured
people the right to live with dignity including education, health, employment,
shelter and food.
• State as well as international community plays a role to end hunger, diseases
and fulfill basic needs.
• Moving towards second question, The article 36 of the present constitution has
provided mainly 3 rights; rights relating to food, right to prevention from a
condition of not having food i.e. right against starvation and food
sovereignty.
• Previous Constitution, the Interim Constitution of Nepal, 2063 has also ensured
food sovereignty at Article 18 sub-article 3.
• Article 36 of the Present Constitution ensures that every citizen shall have
right to food. The right to food means access to food, citizens should have
enough food or the means to purchase food should be available to them. Also,
the food available should be nutritious and free from contamination. It should
not be stale and rotten. The food should be of such quality that a person needs
to be physically and mentally healthy. It is also right relating to food.
• Right to food is a human right. Article 25 of the Universal Declaration of
Human rights 1948, links the right to food with the right to live with dignity.
Similarly, on the Article 11 of International Covenant on Economic, Social
and Cultural Rights, 1966 , the right to food is considered as an integral part
of the right to live with dignity.
• The right to adequate food is realized when every man, woman and child,
alone or in community with others, has physical and economic access at all
times to adequate food or means for its procurement.
• Access to food should be available to all individuals, families and
communities. It includes quantity and quality of food. Food should be
sufficient to stay physically and mentally healthy from the point of view of a
person age, health and standard of living. Also, the available food should be
religiously and culturally compatible or acceptable
• Right to food sovereignty also denotes Right to food security. It is the duty of
state to ensure food sovereignty.
• This case is related to distribution of rotten and stale food to the people
affected by earthquake and the state not fulfilling its duties, If the adequate
and nutritious food is not available in time, people who have suffered will
starve and eventually die. If there is no nutritious food, pregnant women and
children are affected and cannot work and earn. Therefore, the question of
violation of the right to food becomes a matter of violation of other
rights.
• Court observed while answering third question that The state has obligation
to respect, protect and fulfill the ESCR. It is the duty of state to ensure
constitutional rights and implement them. WPF has tried to reduce hunger
and distribute food but it is not acceptable to distribute substandard food.
• None of the governmental or international organization involved in the food
distribution or non governmental organizations connected with them have the
right to play with the peoples life, safety and health. Also, GON is not able to
show the response from responsible organizations. The people responsible for
it has to be punished and such contamination of food should be avoided.
• While answering fourth question, court said that Duties of government
has been already explained. Court issued directive order :
1. As Nepal is facing some kind of natural calamities every year, in order
to respect the right to food of citizens, to protect them from the risk of
food security and starvation, the raise of quality of food and
arrangement of sufficient food storage that can be distributed has to be
made.
2. To protect arable land for food supply and security in the long term and
stop conversion of arable land to non-agricultural purpose.
3. To research and develop alternative food production based on traditional
knowledge, skills, discoveries and practices of people of Himalayas,
mountains and plains in the country. To create and implement laws to
increase the productivity of land being used in agriculture.
4. In the event of any disaster, the food received from neighboring and
international community are to be accepted only after testing. To test the
quality of aid received, laboratories are to be built.
5. To blacklist non governmental organizations that work illegally in the
country for food distribution.
 Principles established
• The right to food means right to access to food. Citizen should get
enough food or get the means to purchase food. The available food
should be nutritious and free from food adulteration. The food necessary
for a person to be physically and mentally fit should be available.
• Guaranteeing the right to food does not guarantee the free supply of
food, but the food must be physically available. In addition, the state
should check whether the people has the power to buy necessary food
and if they are unable to buy it, state should create a situation where
food is available through suitable means.
• Any organization that provides goods or services to people , whether
national or international must act responsibly. No one is allowed to play
with the lives of people who have no voice, are suffering from hunger or
suffering from calamities.
References
• https://nkp.gov.np/full_detail/8927
• https://nkp.gov.np/full_detail/7964
• https://nkp.gov.np/full_detail/106
Thank You !