LEGISLATIVE MEASURES RELATING TO FOOD SECURITY IN SOUTH ASIA

Regional synthesis report

TABLE OF CONTENTS

List of tables ..................................................................................................................... 1

List of figures .................................................................................................................... 1

List of boxes ..................................................................................................................... 1

List of statutes .................................................................................................................. 2

Abbreviations and acronyms ............................................................................................ 3

Preface............................................................................................................................ 5

Executive summary .......................................................................................................... 6

Background ...................................................................................................................... 9

Definition and conceptual framework ............................................................................. 14

National Laws ................................................................................................................. 17

Bangladesh .............................................................................................................. 21

India ......................................................................................................................... 21

Nepal........................................................................................................................ 26

Pakistan ................................................................................................................... 27

Sri Lanka .................................................................................................................. 34

Common features and best practices: “Regional benchmarks" ..................................... 36

Conclusion ...................................................................................................................... 41

References....................................................................................................................45

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LIST OF TABLES

Table 1: List of food-related legislation in Bangladesh

Table 2: List of food-related legislation in India

Table 3: List of food-related legislation in Nepal

Table 4: List of food-related legislation in Pakistan

Table 5: List of food-related legislation in Sri Lanka

LIST OF FIGURES

Figure 1: Percentage of under-nourished population in South Asia

Figure 2: GHI for South Asian Countries, 1990-2012

LIST OF BOXES

Box 1: Major causes of food insecurity in South Asia

2

LIST OF STATUTES Food-related legislation in Bangladesh

Acquisition of Wasteland Act, 1950 Agricultural and Sanitary Improvement Act, 1920 Agricultural Pesticides Ordinance, 1971 Agricultural Pests Ordinance, 1962 Bangladesh Irrigation Water Rate Ordinance, 1983 Bangladesh Pure Food Rules, 1967 Bangladesh Standards and Testing Institution Ordinance, 1985 Canals Act, 1864 Consumer Rights Protection Act, 2009 Control of Essential Commodities Act, 1956 Fertiliser (Management) Act, 2006 Fish and Fish Products (Inspection and Quality Control) Ordinance, 1983 Fisheries Development Corporation Act, 1973 Fisheries Research Institute Ordinance, 1984 Food (Special Courts) Act, 1956 Irrigation Act, 1876 Land Holding Limitation Order, 1972 Land Management Manual, 1990 Land Reforms Ordinance, 1984 Livestock Importation Act, 1898 Marine Fisheries Ordinance, 1983 Private Fisheries Protection Act, 1889 Protection and Conservation of Fish Act, 1950 Pure Food Ordinance, 1959 Seeds Ordinance (The Seeds Amendment Act 2005), 1977 State Acquisition and Tenancy Act, 1950 Tanks Improvement Act, 1939 The Essential Articles (Price Control and Anti-Hoarding) Act, 1953

Food-related legislation in India

Agricultural Produce (Development and Warehousing) Corporation Act, 1956 Agricultural Produce Marketing (Regulation) Act (various years) Agriculture Refinance and Development Corporation Act, 1963 Biological Diversity Act, 2002 Black Marketing Act, 1980 Competition Act, 2002 Consumers Protection Act, 1986 Essential Commodities Act, 1955 Fertiliser (Control) Order, 1985 Fertiliser (Movement Control) Order, 2001 Mahatma Gandhi National Rural Employment Guarantee Act, 2005 National Bank for Agriculture and Rural Development Act, 1981 National Cooperative Development Corporation Act, 1962 Pesticides Management Bill, 2008 Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 Regional Rural Banks Act, 1976 Reserve Bank of India Act, 1934 Right to Information Act, 2005 Seeds Act, 1966 The Essential Commodities Act, 1955 Warehousing (Development and Regulation) Act, 2007

Food-related legislation in Nepal

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Animal Health and Livestock Services Act, 1999 Animal Slaughterhouse and Meat Inspection Act, 1999 Black Marketing and Few Other Social Offense and Punishment Act, 1975 Consumer Protection Act, 1998 Competition Promotion and Market Protection Act, 2007 Environment Protection Act, 1997 Essential Commodities Control (Authorization) Act, 1961 Food Act, 1966 Forest Act, 1993 Industrial Enterprise Act, 1992 Land Act, 1964 Local Self Governance Act, 1999 Seed Act, 1988 The Muluki Ain (National Code) Chapter on Cultivation of Land, 1963 Water Resource Act, 1992

Food-related legislation in Pakistan

Agricultural Pesticides Ordinance, 1971 Agriculture Development Bank Ordinance, 1962 Agriculture Produce Market Act, 1939 Cantonment Pure Food Act, 1966 Food Stuffs (Control) Act, 1958 Hoarding and Black Market Order, 1956 Land Reform Act-II, 1977 Pakistan Bait-ul-Mal Act, 1991 Pure Food Ordinance, 1960 Seed Act, 1976 State Bank of Pakistan Act, 1956

Food-related legislation in Sri Lanka

Consumer Affairs Authority Act, 2003 Fisheries and Aquatic Resources Act, 1996 Food Act, 1980 Forest Conservation Ordinance, 2009 Pasture Lands (Reservation and Development) Act, 1983 Seed Act, 2003

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ABBREVIATIONS AND ACRONYMS APMC Agricultural Produce Marketing (Regulation) Act BISP Benazir Income Support Programme FAO Food and Agricultural Organization of the United Nations FSP Food Support Programme GDP Gross Domestic Product GHI Global Hunger Index ICESCR International Covenant on Economic, Social and Cultural Rights IFPRI International Food Policy Research Institute INR Indian Rupees IPR Intellectual Property Right NAPCC National Action Plan on Climate Change NGO Non-profit organisation PDS Public Distribution System SAARC South Asian Association for Regional Cooperation WFP World Food Programme WTO World Trade Organization ZTBL Zarai Taraqiati Bank Limited

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PREFACE

‘Legislative Measures Relating to Rood Security in South Asia: Regional Synthesis Report’ is an output of a pro-ject Oxfam initiated in partnership with South Asia Watch on Trade, Economics and Environment (SAWTEE) on Research, Advocacy and Capacity Building on Food-Related Legislation in South Asia in December 2012. The project aimed to assist in development of effective food security legislation in South Asian countries in addition to India by carrying out a comprehensive study of existing legislation that are relevant to food security. Conse-quently, project objectives were to identify and analyze the features of food-related legislation of Bangladesh, India, Nepal, Pakistan and Sri Lanka and prepare a legislative baseline against which to measure the progress of future interventions; to explain the best practices in national legislation and to elaborate loopholes in legislation; and to develop and critically examine the basic normative legal standards and broad features of substantive rules and procedural standards for developing an ideal/model law necessary to address food insecurity at national level in mentioned countries. Major activities conducted under the project included desk researches by SAWTEE and its network members Bangladesh Environmental Lawyer’s Association (BELA), Consumer Unity and Trust Society (CUTS), Sustain-able Development Policy Institute (SDPI) and Law and Society Trust (LST) respectively for Nepal, Bangladesh, India, Pakistan and Sri Lanka; development of a regional synthesis report by SAWTEE outlined below; organiza-tion of regional round table discussion on regional and country reports; facilitation of a regional learning event for Oxfam members of staff and partners. An important achievement of the project is that within three years since the initiation of the project, colleagues at Oxfam and partner organizations who took part in the different stages of the project are leading a series of activities at national and regional level on issues around food legislation. The project was concluded in mid 2014; however the outcomes and outputs of the project are and will be ex-plored insistently in different interventions of Oxfam, its GROW campaign and by members of staff and partners working on issues around right to food in different South Asian countries. The South Asia Right to Food Confer-ence 2015 has brought another opportunity to place the regional synthesis report before the respective audi-ences again. Oxfam’s country and regional teams will be happy to share the country reports as well with others whenever necessary. I would like to thank Cherian K Mathews, Regional Director Oxfam Asia, for directing me in conceptualizing the project and Lilian Mercado, Deputy Regional Director, Oxfam Asia, for guiding the implementation of the project. I must thank Dr Posh Raj Pandey and Dr. Ratnakar Adhikari, respectively the then Executive Chairman and Ex-ecutive Director, SAWTEE, for agreeing to the partnership and leading the implementation. I thank all colleagues in SAWTEE and Oxfam, especially to Puspa Sharma, Asish Subedi, Anna Wrochna, Uamdao Noikorn and Dol-laporn Intr-roong, who provided various forms of support during the implementation. I would like to thank the au-thors, GROW leads and representatives of partner organizations from South Asian countries, former and current MPs of Bangladesh, Nepal, Pakistan and Sri Lanka as well as Tek Bahadur Thapa, Minister for Agricultural De-velopment, Government of Nepal and Hasanul Haq Inu MP, Minister for the Ministry of Information, Bangladesh, for their contributions. Ziaul Hoque Mukta Regional Policy Coordinator, Oxfam Asia <zmukta@oxfam.org.uk>

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EXECUTIVE SUMMARY

South Asia has the largest number of undernourished people in the world. According to the Food and Agricultural

Organization of the United Nations (FAO) about 17.6 percent (304 million) of the total population is undernour-

ished in the region. The Global Hunger Index (GHI) has termed the state of food insecurity in Bangladesh, India

and Nepal as “alarming” and that of Pakistan and Sri Lanka as "serious".

Food security refers to the state of availability of food; and also to the availability of legal, economic, social, and

qualitative elements that determine the ability of the people to have perennial access to qualitative food even dur-

ing period of economic or climatic crisis. This study upholds the definition of the FAO and encompasses it as a

conceptual framework for the analysis of food-related legislation in South Asian countries.

In South Asia, the lack of adequate agricultural growth has largely affected its food security situation. However,

beside the production capacity, food security depends on several other factors such as the access to agricultural

inputs, technology, and labour; income, anti-competitive practices, post-harvest losses, non-existent or non-

functional public distribution system; and environmental, regional and national cooperation-related factors. Cli-

mate change, high population growth and high food prices have further aggravated challenges to food security.

Given the abject food insecurity situation in all South Asian countries, an effective legal mechanism for food se-

curity is essential to deal with the national situation and challenges pertaining to food security. All the countries in

South Asia face similar challenges in addressing food insecurity. However, legal mechanisms that can contribute

to food security in the region are yet to be formulated both at national and regional levels. Although, the Indian

Food Security Bill could be an exception, entire South Asia does not have adequate legal mechanisms to ensure

food security to its vast starving population.

The efforts at national levels need to be complemented by efforts at regional levels. Countries could learn and

benefit from their mistakes and best practices which may contribute to the development of specialised food secu-

rity legislation in the region. It is therefore important for the countries to come and work together for legislating

specialised food-related laws in each of the countries in South Asia.

The legal responses to food security in the countries in South Asia demand some vital elements that should be

addressed by the food-related legislation. First, it is essential to clearly set out the scope of food-aid. Food-aid

demands mobilisation of a significant amount of resources, which might not be a viable policy option for all South

Asian countries. In addition, notwithstanding provisions of food-aid, it is equally essential that the laws are in

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place to ensure an effective and transparent public distribution system. Moreover, the food-aid system prevailing

in India and Pakistan indicate that each country in South Asia can and should tailor their food-aid laws according

to the need and availability of resources. Universal distribution of food-aid is, however, not essentially a proper

response to a specialised food security law.

Second, development of agriculture infrastructure and enhancing farmers' access to seeds and fertilisers are sa-

lient features of any food security law. The farmers’ access to seeds and fertilisers not only increases agricultural

productivity, but also contributes to the food security of farmers themselves who have a significant share in the

total population of any country in the region.

Third, access to resources and their effective allocation—including access to agriculture finance in favourable

terms—are important in increasing poor people’s reach to food and contribute to farmers’ ability to increase pro-

duction. Fourth, the legal mechanism that ensures availability of good quality and nutritious food is vital. Finally,

the regulatory mechanism to prevent market distortions that adversely affect prices or distribution patterns in the

market is central to any food security law.

While various legal mechanisms have been evolving to address food security concerns in South Asian countries,

it is important that special focus should be given to people who are more vulnerable. Administrative and judicial

mechanisms relevant to the enforcement of food security laws should also be sensitive to the concerns of such

groups. Moreover, good-governance and effective legal remedy are vital to ensure proper enforcement of food

security law. People should be entitled to effective remedial measures against any situation of food insecurity or

against omission of the state or any other institution that may adversely affect their food security. Furthermore, in

addition to more direct remedies against the situation of food insecurity, there must also be such mechanisms

that can contribute to transparent and effective governance while remaining sensitive towards food security.

Food security law should also have a human rights based approach and should essentially acknowledge food as

a fundamental human right upon which other rights are based. Food insecurity should not only be taken as the

failure of a state to make discreet decisions regarding equitable distribution of resources and market regulation,

but also as the violation of peoples’ rights to have access to food. Incorporating food security or right to food in

the domestic legislation or constitution can guarantee formal protection of right to food of the people.

In reality, not all South Asian countries have embraced the entire elements essential to ensure food security in

their legislation. Nevertheless, when analysed together, legislation in five South Asian countries have collectively

addressed wide areas of laws that are likely to provide greater impetus to food security situation in South Asia.

Therefore, the countries in South Asia can learn from each other and help in incorporating best practices in each

other’s food-related legislation. Additionally, there is a need to encourage further analysis, exploration and public

debate in those issues that have not yet found place in any South Asian country’s legislation. Since some of

these issues are still evolving, their magnitudes and nature of impacts are yet to be fully ascertained.

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Gender dimension of food security including intra-household distribution of food is one such issue which not only

has bearing on the availability, but also on utilisation and stability of food. In South Asia, female members of

household are mostly deprived of food and nutritional securities while their male counterparts enjoy such access.

At this age and time, food-related legislation remaining apathetic to such an appalling level of gender-based food

insecurity is clearly not acceptable.

Second, the impact of climate change on food security—which could be severe in a region like South Asia—is

yet to be addressed by the legislation. Climate change insurance; investment in public sector research and de-

velopment; and providing fiscal incentives for channeling private financing for facilitating climate adaptation and

adoption of other safety-nets to help people—particularly the poor, marginalised and vulnerable ones—mitigate

the impact of climate change and prevent them from sliding back into food insecurity are sine qua non.

Third, although the mechanism for devising regional solution to the problem of food security was devised in

South Asia more than two decades ago, they are still in the process of taking a shape. While South Asian Asso-

ciation for Regional Cooperation (SAARC) Food Bank has more or less been operationalised now, a regional

agreement on SAARC Seed Bank, which enumerates climate adaptation as an explicit objective, has been

signed lately. However, countries in the region have not enacted enabling legislation to expedite the spirit of the

regional cooperation in the area of food security.

Legislation does matter as far as materialising any country’s commitment to ensure food security for their people

and communities are concerned. However, it does not mean much if its implementation aspect is weak and not

enforced the way in which the lawmakers had initially envisaged. While there are various reasons for the persis-

tence of this pathology, a study on implementation aspects of legislation in the region and identification of critical

constraints that impede the possibility of implementing well-defined legislation is logically the next big step to ad-

dress the problem of food insecurity in the region.

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BACKGROUND South Asia’s annual growth averaged an impressive six per cent over the past two decades.

This growth helped reduce poverty, and brought down the percentage of people living on less

than US$1.25 per day from 61 per cent in 1981 to 36 per cent in 2008. Notwithstanding this, the

region still has the highest concentration of poverty with about 571 million people surviving on a

nominal daily income. The poor in this region make up more than 44 per cent of the developing

world’s poor.1 South Asia also hosts the highest number (304 million) of the world’s undernour-

ished population according to the Food and Agricultural Organization of the United Nations

(FAO).2 This shows that poverty and hunger are closely intertwined, including that in South

Asia.

The state of food insecurity as measured by the percentage of undernourished population still

remains severe in the South Asian countries (Figure 1). However, the countries are making a

slow and steady progress in their quest to feed their hungry population. Between 1991 and

2011, Bangladesh has made a significant progress in reduction of the percentage of under-

nourished population from 34.6 per cent to 16.8 per cent. Sri Lanka still lags behind other coun-

tries in the region despite making significant progress in poverty reduction and other indicators

relating to human development. India, Nepal and Pakistan have also witnessed some reduction

in the percentage of under-nourished population in the corresponding period, although not too

significantly.

1 See World Bank. 2013. South Asia Regional Brief. 17 April. Available at: http://www.worldbank.org/en/news/feature/2013/04/17/south-asia-

regional-brief (accessed 23 June 2013).

2 See, FAO. 2013. The Status of Food Insecurity in the World. Executive Summary 20 May. Available at

http://www.fao.org/docrep/016/i2845e/i2845e00.pdf (accessed 20 May 2013).

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Figure 1: Percentage of under-nourished population in South Asia

Source: FAO (2012)

The Global Hunger Index (GHI)—an important measure to gauge the state of food insecurity—

also paints a bleak picture for South Asia. GHI is published and updated annually by the Inter-

national Food Policy Research Institute (IFPRI), Welthungerhilfe, a German non-profit organisa-

tion (NGO) and Concern Worldwide, an Irish NGO.

According to the GHI, an index score between 20 and 29.9 is considered “alarming” whereas

that between 10 and 19.9 is “serious”. Bangladesh, India and Nepal are categorised “alarming”

while Pakistan and Sri Lanka fall under “serious” category in terms of food security (Figure 2) in

2012. An important observation that could be made from the figure is that there has been a

steady decline of hunger in Bangladesh, Nepal and Sri Lanka. The index worsened between

1996 and 2001 and improved in 2012 for India. Similarly, there had been no change during the

period 1996-2001 in the case of Pakistan.

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Figure 2: GHI for South Asian Countries, 1990-2012

Source: IFPRI (2012)

One of the major causes of food insecurity in the region is the poor production capacity—one of

the basic elements impacting the food security profile of any country. The poor production ca-

pacity is evident from the fact that the agricultural production could not keep pace with a fairly

robust growth in the gross domestic product (GDP) that the region—as well as any given coun-

try in the region—witnessed over the past two decades.3 However, it needs to be emphasised

that adequate food production alone cannot resolve the problem of food insecurity. There are

several factors—some of which are specific to South Asia—perpetuating food insecurity in the

region.4 The major ones can be broadly divided into four categories (Box 1):

Box 1: Major causes of food insecurity in South Asia a) Production and productivity-related:

Access to and affordability of agricultural inputs Limited use of technology and local seeds Migration and shortage of labour

b) Consumption and distribution-related:

Limited purchasing power Anti-competitive practices Post-harvest losses

Non-existent or non-functional public distribution system Intra-household food distribution

c) Environment-related:

Disaster and climate change Genetic erosion

d) Cooperation-related:

Limited regional cooperation Declining food-aid

3 See Mittal and Sethi. 2009.

4 See, for example, FAO. 1999. Mittal and Sethi (2009); Pant (2012); Rahman and Khaled (2012); Adhikari (2013).

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One of the several areas of cooperation among the South Asian Association for Regional Co-

operation (SAARC) countries is in achieving regional food security through the SAARC Food

Bank. An agreement to establish a SAARC Food Security Reserve was signed in 1987 which

entered into force in 1988. But, it was not operationalised in 20 years which is attributed to its

design flaw and procedural difficulties. The reserve was only to be used during emergencies

and its modus operandi was not clearly spelt out in the agreement. In order to overcome the

practical difficulties in its operation and to improve its functioning, the idea of Regional Food

Bank was endorsed by the 12th SAARC Summit, Islamabad in January 2004 and an Agreement

to this effect was signed at the 14th Summit, New Delhi in April 2007.

The major improvement in the new Agreement was the extension of the scope of the Food Bank

beyond the case of emergencies, adding food shortages as additional eligibility for food with-

drawal. The new Agreement has provisions for negotiations between the food requesting and

releasing countries for price determination and the Food Bank Board is authorized to develop

guidelines for price determination. Similarly, the procedures for withdrawal and release of food

grains are clarified and simplified. Likewise, the Board is authorized to administer functioning of

the Food Bank and national level designated Nodal Point is provisioned as the national focal

point for making request for food and receiving the requests.

The Bank is expected to act as a regional food security reserve for SAARC member countries

for food emergencies and shortages. It is also expected to provide regional support to national

food security efforts, foster inter-country partnerships and regional integration, and solve re-

gional food shortages through collective actions. The effective operationalization of the Bank

may constitute a first step in building an efficient regional response mechanism to food price

inflation in South Asia. However, it is still not clear whether the SAARC Food Bank can be op-

erational to achieve its objective and reduce the vulnerability of South Asian poor from food in-

security. In spite of the renewed hope from the Food Bank, it passed six years without being it

operationalised. It is necessary to think more critically about the impediments on utilization of

the SAARC Food Bank for reducing hunger in the region. Similarly, a regional agreement on

SAARC Seed Bank, which enumerates climate adaptation as an explicit objective, has been

signed lately.

What is more worrisome for the region is the fact that whatever gains have been made in the

past 23 years are likely to be reversed due to emerging challenges such as the ever soaring

food and fuel prices, climate change, and relatively high rate of population growth.5 However, in

spite of imminent threat posed by food insecurity in the region, the policy and measures opted

for mitigating the challenge of food security or to achieve a reasonable level of food security are

either scattered or operate in a piecemeal manner. The region is thus failing to address the

challenges posed by food insecurity that it has been grappling with. The failure is compounded,

5 Although these rates have declined in the recent past, the average annual growth rate for South Asia for the past decade (2003 – 2012), which

stands at 1.71 per cent is still higher than the global average growth rate of 1.47 per cent during the corresponding period. Data are authors’

calculations based on World Development Indicators of the World Bank. See

http://databank.worldbank.org/data/views/reports/tableview.aspx (accessed 4 July 2013).

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among others, by the lack of legislative measures in all the countries in the region which can

directly address food security-related concerns. Several legislation that exist in South Asian

countries touch on the issue of food insecurity, but the countries lack specialised food security

law. However, India is an exception in the region with the government of India tabling a National

Food Security Bill in the parliament.6

Given this absence of specialised legislation, among others, the right to food can neither be en-

sured nor enforced in all the countries of the region. At the same time, the region also lacks a

coherent and comprehensive regional instrument to address problems related to food insecurity.

The region also lacks a platform for sharing issues and ideas to strengthen the situation of food

security in each of the countries. This situation restrains countries from benefiting from mutual

experiences and prevents them from making concerted efforts for redressal of the problem.

Therefore, there has been a growing consensus in the region that each country must develop

clear and effective legal measures in the form of food security legislation to address their food

security-related problems which would ultimately prove helpful for the region as a whole.

In South Asia, like elsewhere, food security laws should ensure a wide set of rights such as the

right to food, consumer rights, intellectual property rights (IPRs), farmers’ right, right to access to

resources (including genetic resources) and the right to environment. Additionally, it should take

into account the aspects such as the prevention of anti-competitive practices, provision of food-

aid or public distribution mechanism, food quality and safety, etc.

One would expect that the general nature of food security-related legislation would be more or

less homogeneous across the region. However, all countries in the region are not at the same

level in terms of socio-economic and several other factors that affect enactment of legislation

and its implementation. Factors such as social preference, economic status, institutional en-

dowment and political or economic conditions, including constituency-specific pressure impact

enactment and implementation of food security-related laws.

For example, India is the first country in the region (and indeed one of the first developing coun-

tries in the world) to have enacted Plant Variety Protection and Farmers’ Rights Act in 2001.

The Act, considered an epitome in balancing rights of farmers and breeders, was enacted not-

withstanding the perceived threat of being challenged at the World Trade Organization (WTO).

However, other countries in the region are yet to enact such legislation despite having prepared

the draft. India has come under immense pressure from multi-national seed companies as they

6 At the time of writing, the Indian Cabinet had approved Food Security Bill through Ordinance, which needs to be ratified by both the houses of

parliament within six months from the date of issue. One of the key provisions of the Bill is that it would legally entitle about 24.3 million

poorest of the poor families to receive 35 kilograms of food grains (rice, wheat and coarse cereals) per month per person at the price of INR. 1-

3 per kg. This scheme would cost the Government of India a total of INR. 125,000 crore (US$ 20.73 billion, which is equivalent to 1.1 per cent

of the current GDP of India). See The Economic Times. 2013. Cabinet Approves Food Security Bill Ordinance 4 July.p6.

14

are trying hard to dilute the farmer-friendly (and pro-food security) provisions enshrined in the

seed legislation. The subsequent bill of the legislation is currently under discussion.7

Although right to food is a basic human right and the states have responsibilities to safeguard

and ensure food security, not all the South Asian countries are capable to ensure this right

given their limited resources. However, India is already working for creating a universal public

distribution system for ensuring food security through a specialised food security law. This re-

flects the contrasting economic capabilities of the South Asian countries.

Another example is that of Nepal, one of the first countries in the world to have enshrined “food

sovereignty” as a fundamental right in its constitution, the ‘Interim Constitution of Nepal, 2007’.

However, it has not been able to enact a comprehensive legislation to implement the constitu-

tional spirit relating to right to food on the ground.

The legal response to the problem of food insecurity essentially takes into account not only the

national situation and existing challenges, but also the regional scenario, practices and laws of

all the countries in the region as a whole. Countries should learn from each other’s best prac-

tices and shortcomings that could ultimately help develop specialised food security legislation in

the region.

In this context, the report presents a comparative study on food-related legislation in five South

Asian countries, namely Bangladesh, India, Nepal, Pakistan and Sri Lanka. The report also

identifies the best practices in food security legislation in the region as well as highlights the

challenges and loopholes in the legislative measures that exist in the region to address the con-

cerns relating to food security. Finally, the report presents recommendations for possible adop-

tion of best legislative responses for ensuing better food security in the region.

DEFINITION AND CONCEPTUAL

FRAMEWORK According to the FAO, the state of food security not only refers to the state of availability of food,

but also deals with the legal, economic, social, and qualitative elements that determine the abil-

ity of the people to continually access food even during the period of economic or climatic cri-

sis. The FAO has thus defined food security in the following manner:

“Food security exists when all people, at all times, have physical and economic access

to sufficient, safe and nutritious food that meets their dietary needs and food prefer-

ences for an active and healthy life”.8

7 See Bala Ravi, S.2009. The Conflict between Seed Bill and PPVFR Act of India: Lessons for other South Asian Countries, Policy Brief, No.

19.Kathmandu: South Asia Watch on Trade, Economics and Environment. 8 World Food Summit. 1996. See FAO, Food Security, Policy Brief, 2006, issue 2.

15

FAO has further elaborated the elements of food security in the following manner:

Food availability: The availability of sufficient quantities of food of appropriate quality,

supplied through domestic production or imports (including food-aid).

Food access: Access by individuals to adequate resources (entitlements) for acquiring

appropriate foods for a nutritious diet. Entitlements are defined as the set of all com-

modity bundles over which a person can establish command given the legal, political,

economic and social arrangements of the community in which they live (including tradi-

tional rights such as access to common resources).

Food utilisation: Utilisation of food through adequate diet, clean water, sanitation and

health care to reach a state of nutritional well-being where all physiological needs are

met. This brings out the importance of non-food inputs in food security.

Food stability: To be food secured, a population, household or individual must have

access to adequate food at all times. They should not risk of losing access to food as a

consequence of sudden shocks (e.g. an economic or climate related crisis) or cyclical

events (e.g. seasonal food insecurity). The concept of stability can therefore refer to

both the availability and access dimensions of food security.9

Similarly, the existence of food security is determined generally by two factors. First is the allo-

cation of resources among the population so that people’s access to food is ensured. Second is

the removal of market distortions so as to enable consistent access to adequate and qualitative

food. While the first factor demands positive enforcement (such as allocation of land, creation of

food stock, research, government assistance to farmers etc.), the second one generally requires

corrective enforcement against potential market distortions (such as hoarding, collusion, price

fixing, etc.).

In addition, the FAO has also proposed a two pronged (twin-track) approach to food security

that employs four aspects of food security and combines “sustainable agricultural and rural de-

velopment with targeted programmes for enhancing direct access to food for the most needy.”10

That is, the FAO stresses the need to tackle food insecurity in the context of diversity under-

scoring the very nature of challenges that may exist in different societies at different periods.

The twin-track approach, therefore, is an acceptance of the fact that the legal intervention with

regard to food security has to take more than a linear approach and should speak to the diverse

reasons and challenges of food insecurity. That is, any legal approach to food security should

essentially be contextual in addressing the two elements of resource allocations and regulation

of market distortion, as discussed above.

In this context, this study analyses food security related legislation from five South Asian coun-

tries, namely Bangladesh, India, Nepal, Pakistan, and Sri Lanka.

9 FAO Policy Brief. 2013. Food Security. Available at: ftp://ftp.fao.org/es/ESA/policybriefs/pb_02.pdf (accessed February 28, 2013). (FAO 2006 Issue

2, p.1)

10 Ibid, p. 3.

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The study uses the four-elements-model of food security—that encompasses topics relating to

food availability, access, utilisation and stability—as proposed by the FAO as a conceptual

framework to analyse the legal provisions. Additionally, the study also makes recommendations

on the basis of the same model while broadly mooting the discussions on resource allocations

and regulation of market distortions.

Likewise, the study analyses national legislation of these five South Asian countries that are in

force at the end of April 2013, with a minor exception to the Food Security Bill of India, which is

being tracked by the study team until the first week of July 2013.

RIGHT TO FOOD Apart from Bhutan, South Asian countries are party to the International Covenant on Economic,

Social and Cultural Rights (ICESCR), which defines right to food as a fundamental human right.

ICESCR article 11 provides that "the States Parties to the present Covenant recognize the right

of everyone to an adequate standard of living for himself and his family, including adequate

food, clothing and housing, and to the continuous improvement of living conditions." The

ICESCR committee has, in turn, elaborated the concept of right to adequate food in its General

Comment No. 12 of 1999 in the following terms:

The right to adequate food is realised when every man, woman and child, alone and in

community with others, has physical and economic access at all times to adequate food

or means for its procurement.11

That is, apart from Bhutan, South Asian countries have already accepted international obligation

to ensure protection of right to adequate food. Naturally, the availability of adequate resources

to protect socio-economic rights in general and right to adequate food in particular always re-

mains a matter of vital concern in the region. However, lack of adequate resources cannot be

an excuse for not protecting one of the basic rights of the people that is central to living a digni-

fied life. Additionally, as discussed in the preceding section, food-aid or public distribution

mechanism is only one of the aspects of food security. Therefore, in order to ensure the right to

food, the state is not only a primary duty bearer, but it should also bear the responsibilities be-

yond “providing" food.12

The FAO Voluntary Guidelines on right to food has clarified that,

states should facilitate sustainable, non-discriminatory and secure access and utilisation

of resources consistent with their national law and with international law and protect the

assets that are important for people’s livelihoods. States should respect and protect the

11 ICESCR Committee, General Comment No. 12: The right to adequate food (art. 11), Document E/C.12/1999/5, para 6.

12 FAO, Voluntary Guidelines to support the progressive realisation of the right to adequate food in the context of national food security, Adopted by

the 127th Session of the FAO Council November 2004, explains obligations of the state in the following terms:

>The obligation to respect requires governments not to take any measures that arbitrarily deprive people of their right to food, for example by meas-

ures preventing people from having access to food.

>The obligation to protect means that states should enforce appropriate laws and take other relevant measures to prevent third parties, including

individuals and corporations, from violating the right to food of others.

>The obligation to fulfill (facilitate and provide) entails that governments must pro-actively engage in activities intended to strengthen people’s access

to and utilisation of resources so as to facilitate their ability to feed themselves. As a last resort, whenever an individual or group is unable to en-

joy the right to adequate food for reasons beyond their control, states have the obligation to fulfill that right directly.

17

rights of individuals with respect to resources such as land, water, forests, fisheries and

livestock without any discrimination. Where necessary and appropriate, States should

carry out land reforms and other policy reforms consistent with their human rights obli-

gations and in accordance with the rule of law in order to secure efficient and equitable

access to land and to strengthen pro-poor growth. Special attention may be given to

groups such as pastoralists and indigenous people and their relation to natural re-

sources. 13

Food security, being a fundamental right, should be seen from human rights based approach. In

corollary, ensuring food security in itself is a process that can uphold people’s human rights.

NATIONAL LAWS

Bangladesh According to the FAO, 16.8 per cent of the total population in Bangladesh, which is equivalent to

25 million, are undernourished.14

In October 2012, GHI listed Bangladesh as the 68th hungriest

nation out of 93 countries that appeared in the index. According to the World Food Programme

(WFP), nearly half (45 per cent) of the country’s total population is reeling under food insecurity

(<2,122 Cal/person/day i.e. less than 2122 calorie per person a day), and nearly one-quarter

(23.9 per cent) of the population is understood as severely food insecure (consuming less than

1805 Cal/person/day).15

Forty per cent of the population lacks the resources to acquire enough

food.16

Meanwhile, ‘Constitution of the Peoples' Republic of Bangladesh’ recognises the right to food of

her citizens. The constitution, in its Directive Principles, has defined securing citizens' right to

basic necessities of life, including food, as a fundamental responsibility of the state. Similarly,

the constitution has also tried to address the structural aspect of ensuring food security by em-

phasising on agricultural revolution.

The overall summary of the existing Bangladeshi legal norms and standards relating to various

aspects of food security are presented in the following section.

Legislation relating to food availability Bangladesh has various legislative measures relating to the food availability aspect of food

security. Majority of such legislation seek to ensure adequate supply and distribution of food in

13 Ibid at 8.1.

14 FAO. 2012. The Status of Food Insecurity in the World. Available at http://www.fao.org/docrep/016/i3027e/i3027e.pdf (accessed 20 May 2013).

See also Figure 1 above.

15 National Report on Food Security Legislation (Bangladesh), Bangladesh Environmental Lawyers Association (BELA) 2013.

16 National Strategy for Accelerated Poverty Reduction II (FY 2009-11) cited in National Report on Food Security Legislation (Bangladesh), Bangla-

desh Environmental Lawyers Association (BELA) 2013.

18

the market by regulating or controlling price and other forms of market distortions that may

hamper the availability of food.

The Essential Articles (Price Control and Anti-Hoarding) Act, 1953 fixes the maximum price of

essential commodities including food. The Essential Commodities Act, 1957 also authorises the

government to determine and enforce the maximum price of essential commodities including

food. The Control of Essential Commodities Act, 1956 regulates production, treatment, storage,

movement, transportation, supply, distribution, disposal, acquisition, use or consumption of

food.

The Consumer Rights Protection Act, 2009 deals with fair pricing of food products in addition to

regulating quality of food and overall access to quality food. The availability of food has also

been ensured by the Private Fisheries Protection Act, 1889 with focus on the people who own

the water, by recognising exclusive right of fishing in such waters.

Legislation relating to food accessibility Legislation relating to land reform and redistribution serve as a central feature of food

accessibility aspect of food security in Bangladesh. The State Acquisition and Tenancy Act,

1950 allows the state to tax rent and other earnings from the land. The Act also defines land-

ceiling and re-distribution of acquired lands. Moreover, like the general land reform law, it seeks

to ensure everyone’s access to land in order for people to maintain food security.

Bangladesh Land Holding Limitation Order, 1972 is also relevant while determining the land-

ceiling. Similarly, the Land Reforms Ordinance, 1984 has defined the ceiling of agricultural land

and also has provisions for re-distribution of surplus land. The ordinance has tried to secure

farmers’ access to land resource by protecting farmers from any form of eviction or

dispossession of homestead land even by courts or any government authorities.

Furthermore, the Acquisition of Wasteland Act, 1950 allows the state to acquire public lands for

the purpose of food production. The Land Management Manual, 1990 allows local communities

to fish in government managed small (below 3 acres) water bodies. The Canals Act, 1864; the

Irrigation Act, 1876; the Tanks Improvement Act, 1939 and the Bangladesh Irrigation Water

Rate Ordinance, 1983 provide mechanisms for construction of and access to irrigation facilities

for the farmers.

Legislation relating to food utilisation Pure Food Ordinance (1959) and Pure Food Court - New law has been approved in 2013 ; the

Bangladesh Pure Food Rules, 1967; the Bangladesh Standards and Testing Institution

Ordinance, 1985; the Livestock Importation Act, 1898; and the Fish and Fish Products

(Inspection and Quality Control) Ordinance, 1983 govern the quality standards of food available

in the Bangladeshi market. These laws perform dual functions of determining food quality

standards as well as putting in place administrative mechanism to ensure strict implementation

of the quality standards defined thereof.

19

Furthermore, the Consumer Rights Protection Act, 2009 also provisions a range of safeguards

against supply and distribution of poor quality food. The Agricultural Pesticides Ordinance, 1971

on the other hand adopts similar approach of standardisation and regulation with regard to

pesticides. The Ordinance seeks to ensure farmers’ access to quality pesticides that meet the

standard set by the government.

Legislation relating to food stability The Food (Special Courts) Act, 1956 grants authority to special magistrates to persecute in the

event of violation of foodstuffs related government orders as well as violation of the Act per se.

The Act has provision of punitive measures so that the quality as well as availability of food is

ensured in the market. Furthermore, the Consumer Rights Protection Act, 2009 also boasts

various provisions to ensure access and availability of food to the people.

As mentioned earlier, the Canals Act, 1864; the Irrigation Act, 1876; the Tanks Improvement

Act, 1939 along with the Bangladesh Irrigation Water Rate Ordinance, 1983; the Agricultural

and Sanitary Improvement Act, 1920; the Agricultural Pests Ordinance, 1962; the Seeds

Ordinance, 1977 (The Seeds Amendment Act, 2005); the Protection and Conservation of Fish

Act, 1950 and Rules; the Marine Fisheries Ordinance, 1983 and Rules; the Fisheries

Development Corporation Act, 1973; the Fertiliser (Management) Act, 2006 and the Fisheries

Research Institute Ordinance, 1984 have provisions striving to ensure long-term regulation of

the food sector, thereby supporting food production and agriculture.

In addition, Bangladesh has sought various structural reforms in relation to the situation of food

insecurity by devising several plans and policies. The National Food Policy, 2006 has highly

prioritised the topic of food security and stressed the need for providing nutritious food to the

people. Similarly, the National Food Policy Plan of Action, 2008-2015 has defined various

administrative mechanisms to achieve the goal of food security in the country. The Country

Investment Plan; the National Agricultural Policy; the National Fisheries Policy, 1998 and the

National Livestock Development Policy, 2007 all emphasise the need for investing in agriculture

and food related industries to usher in self-reliant and secured position with regard to food.

A summarised list of Bangladeshi legislation dealing—directly or indirectly—with food security

as discussed above is presented in Table 1.

Table 1: List of food-related legislation in Bangladesh

Legislation relat-

ing to food

Name of legislation Year of en-

actment

Availability Private Fisheries Protection Act

1889

The Essential Articles (Price Control and Anti-Hoarding) Act 1953

Control of Essential Commodities Act 1956

20

Essential Commodities Act 1957

Consumer Rights Protection Act 2009

Accessibility Canals Act

1864

Irrigation Act

1876

Tanks Improvement Act

1939

State Acquisition and Tenancy Act 1950

Acquisition of Wasteland Act

1950

Land Holding Limitation Order 1972

Bangladesh Irrigation Water Rate Ordinance 1983

Land Reforms Ordinance

1984

Land Management Manual 1990

Utilisation Livestock Importation Act 1898

Pure Food Ordinance 1959

Bangladesh Pure Food Rules 1967

Agricultural Pesticides Ordinance 1971

Fish and Fish Products (Inspection and Quality Control)

Ordinance

1983

Bangladesh Standards and Testing Institution Ordinance 1985

Consumer Rights Protection Act 2009

Stability Canals Act 1864

Irrigation Act 1876

Agricultural and Sanitary Improvement Act 1920

Tanks Improvement Act 1939

Protection and Conservation of Fish Act 1950

Food (Special Courts) Act 1956

Agricultural Pests Ordinance 1962

Fisheries Development Corporation Act 1973

Seeds Ordinance (The Seeds Amendment Act 2005) 1977

Bangladesh Irrigation Water Rate Ordinance 1983

Marine Fisheries Ordinance 1983

Fisheries Research Institute Ordinance 1984

21

Fertiliser (Management) Act 2006

Consumer Rights Protection Act 2009

India According to the FAO, India has 217 million (17.5 per cent) undernourished people.

17 The GHI

ranked India at 67 out of 122 countries covered in 2010 while it was 65 out of 79 countries in

2012. Similarly, malnutrition in India—especially among children and women—is widespread,

acute and even alarming. Nevertheless, 75 per cent Indians suffer from hunger to varying de-

grees with 50 per cent of them suffering acutely.” 18

Realising the magnitude of the challenge, the Indian government has introduced a bill on food

security in the parliament aiming universal public food distribution system. The Bill, which is the

first of its kind in South Asia, is naturally a progressive step towards ensuring food security in

India. The Food Security Bill in India strides to bring all aspects of food security-related rules

into a single umbrella that were otherwise scattered in various pieces of legislation. In addition,

the Bill mainly focuses on the means and ways of ensuring food availability to the people and

relies on other laws to ensure stability in food access and utilisation.

The Bill can inspire similar legislation in other South Asian countries. However, the enormous

amount of resources essential to implement the food security-related law that relies mainly on

food-aid or subsidy can make it difficult for other South Asian countries to draft and implement

similar laws. On the contrary, some groups think that affordability is a relative term and has to

be looked at with reference to spending on defense or subsidies given to corporations etc.

A general summary of the existing legal standards relating to various aspects of food security in

India has been presented below.

Legislation relating to food availability A number of legislation govern the food availability aspect of food security in India. Such aspect

is related to the provisions that ensure supply of food to the people as well as more indirect

regulatory provisions that prevent market distortions or other forms of structural challenges that

may hinder availability of food. The legislation governing this aspect of food security are classi-

fied as follows:

Legislation relating to direct supply of food (food-aid) The Food Security Bill is perhaps the best example of a law that can ensure availability of food

to the people. The Bill adheres to the rights based approach to food security by entitling every

17 FAO. 2012. The Status of Food Insecurity in the World. Available at http://www.fao.org/docrep/016/i3027e/i3027e.pdf (accessed 20 May 2013). See

Figure 1 above as well.

18 CUTS International. 2013. Hunger and Malnutrition in India: Status, Causes and Cures. Available at http://www.angoc.org/portal/wp-

content/uploads/2012/09/12/vietnam-food-and-nutrition-security-situationer/India.pdf cited in the National Report on Food Security Legislation

(India).

22

family below the poverty line in rural as well as urban areas to 35 kilogram of grain per month at

Indian Rupee (INR) 1-3 per kilogram.

In addition, various legislation and plans have been in force that strive to ensure availability of

food in India. The Indian public distribution system (PDS), which is the largest public distribution

system in the world, has provided subsidised food and non-food items to the poor since 1960.

In addition, the PDS also has provisions relating to the maintenance of stocks of food items to

ensure uninterrupted food supply.

Over the years, the PDS has been adapted (in the forms of Revamped Public distribution Sys-

tem, 1992 and Targeted Public Distribution System, 1997) to ensure an efficient distribution sys-

tem with reforms in the administrative lapses and improvements in distribution mechanisms so

that the needy (real food insecure) would benefit under the system.

Similarly, other schemes such as Schedule Castes, Schedule Tribes and Other Backward

Classes (SC/ST/OBC) Hostels, 1994; National Family Benefit Scheme, 1995; Antyodaya Anna

Yojana, 2000; Annapurna Scheme, 2000; National Maternity Benefit Scheme, 2001; Scheme for

Supply of Food Grains to Welfare Institutions, 2002-03 and Food Stamps/Food Coupons/Food

Credit Cards also provide food subsidy to the poor who would not otherwise fall under the PDS.

In addition, the Village Grain Bank Scheme, 2004 provisions the voluntary storage of food

grains for the purpose of emergency use during drought, natural calamities and other unfore-

seen circumstances in rural India. The system of food grain storage is one of the important as-

pects of food availability as it can ensure food supply during difficult times.

Regulatory provisions that can ensure food availability The Essential Commodities Act, 1955 creates a legal basis for PDS and other forms of food

subsidies and supplies in India. It regulates production, supply, distribution and trade of food

products to ensure availability of essential commodities in the market. Similarly, the Prevention

of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 also regu-

lates supplies of essential commodities by prohibiting various activities that prevent availability

of food in the market.

Marketing of agricultural produce in India is regulated and managed by the Agricultural Produce

Market Committees constituted under the Agricultural Produce Marketing (Regulation) Act (or

APMC Act) manage the markets. Over the years, most of the state governments and union terri-

tories have enacted APMC Acts to regulate agricultural produce markets. The establishment of

regulated markets helped in creating orderly and transparent marketing conditions in primary

assembling markets.

Furthermore, the Seeds Act, 1966 and other seed-related policies have two broad-based objec-

tives of ensuring availability of seeds at reasonable price and maintenance of adequate quality

of seeds. The Seeds Act provides various administrative mechanisms to ensure quality as well

23

as availability of seeds to the farmers. The Seeds Act is related to agricultural productivity for

ensuring availability of food to the people.

Like the Seeds Act, the Fertiliser (Control) Order, 1985; the Fertiliser (Movement Control) Order,

2001 and Pesticides Management Bill, 2008 (which replaces the Insecticides Act, 1968) are

also significant to help increase agricultural productivity by ensuring availability of quality fertilis-

ers at reasonable price as well as regulating the import, supply and distribution of fertilisers in

the Indian market.

Provisions relating to agricultural infrastructure The Agricultural Product (Development and Warehousing) Corporation Act, 1956 and the

Warehousing (Development and Regulation) Act, 2007 lay down the provisions regarding crea-

tion and functioning of agricultural warehouses and other agricultural infrastructure that would

cater to "post-harvest various requirements of production and marketable surplus of various

farm products".19

Furthermore, the National Co-operatives Development Corporation Act, 1962 which primarily

regulates the establishment of agricultural cooperatives also deals with agricultural infrastruc-

ture thereby ensuring food availability. The Act provisions the incorporation and regulation of a

given corporation for the purpose of planning and promoting programmes for the production,

processing, marketing, storage, export and import of agricultural produce, foodstuffs and certain

other commodities based on co-operative principles and the matters connected therewith.20

Legislation relating to food accessibility

The legislation relating to food accessibility in India can broadly be discussed under the

following headings:

Legislation related to land (resource) allocation The Land Acquisition Act, 1894 has provisions relating to land ceiling, and re-distribution of sur-

plus land. Similarly, the Bhoodan Act, 1970 and Bhoodan Rules, 1972 govern distribution of

Bhoodan land in India.

Bhoodan land or donated land is a result of social movement in India that encourages wealthy

land owners to donate their land to lower castes. Initially the distribution of Bhoodan land was

based on social norms and understanding. Later on, the Indian government, in 1953, drafted the

Bhoodan Act to regulate the distribution of Bhoodan land. Until today, out of the total area of

3.91 million acres (1 hectare= 2.4711 acre thus 1584719.355 hectares) donated by wealthy

landowners under Bhoodan, 2.18 million acres (880174.82 hectares) have been distributed so

far.21

19CUTS International.2013. National Report on Food Security Legislation (India).

20 Ibid.

21 Ibid.

24

The Land Acquisition Act also ensures various protection measures in favour of tenants by con-

ferring ownership and sub-tenancy rights to tenants cultivating land. However, sub-tenancy right

is limited in case of widows, members of armed forces, minors, unmarried women, persons suf-

fering from disabilities, etc. The Act basically provides ways and means for land access to the

poor so that their food security situation may improve.

Legislation related to agriculture finance Indian legislation provides numerous legal schemes for farmers and the poor to access essen-

tial financial resources. The Agriculture Refinance and Development Corporation Act, 1963; the

Regional Rural Banks Act, 1976; the National Bank for Agriculture and Rural Development Act,

1981 and Reserve Bank of India Act, 1934 which contains a provision on the design and man-

agement of agriculture credit department within the Reserve Bank of India are a few examples

of legislation that seek to assist farmers in accessing financial resources (including credit) and

availing protections in the forms of various agriculture insurances schemes.22

In addition to land

reform and agriculture finance, the food accessibility aspect of food security is further strength-

ened by various provisions in the Seeds Act and the Pesticides Management Bill that enable

farmers in accessing seeds and pesticides at reasonable prices.

Legislation relating to food utilisation The food utilisation aspect of food security is primarily concerned with the quality of food avail-

able to the people. In this regard, the Consumers Protection Act, 1986 provisions various safety

measures to ensure consumers’ access to quality goods including foodstuffs. In addition, vari-

ous schemes conducted by the Government of India such as the Integrated Child Development

Services, 1975; the Wheat Based Nutrition Programme, 1986; the Mid-day Meal, 1995 and the

Rajiv Gandhi Scheme for Empowerment of Adolescent Girls, 2010 have mechanisms not only

relating to ensuring availability of food, but also maintaining the quality of food that correspond

to the nutritional requirements of the people.

Furthermore, the Food Safety and Standards Act, 2006 provides administrative mechanisms to

ensure food safety along with provisions regarding standardisation of food products.

Legislation relating to food stability Indian legislation and policies dealing with food stability seek to ensure sustainability in agricul-

tural production, distribution and supply. The National Mission for Sustainable Agriculture, which

is a part of broader National Action Plan on Climate Change (NAPCC), seeks to address issues

regarding ‘Sustainable Agriculture’ in the context of risks associated with climate change by de-

vising appropriate adaptation and mitigation strategies for ensuring food security, equitable ac-

cess to food resources, enhancing livelihood opportunities and contributing to stability at the

national level.23

22 See, Ibid. at 21-23.

23 See Ibid. at 32-33.

25

Similarly, the National Initiative on Climate Resilient Agriculture aims at "enhancing resilience of

Indian agriculture to climate change and climate vulnerability through strategic research and

technology demonstration."24

The research on adaptation and mitigation under the initiative

covers crops, livestock, fisheries and natural resource management. Besides, the National Food

Security Mission, 2007 and the National Agriculture Development Plan, 2007 also aim to in-

crease and sustain agricultural productivity.

In addition to ensuring food stability by addressing sustainable agriculture, regulatory legislation

such as the Essential Commodities Act, 1955; the Black Marketing Act, 1980 and the Competi-

tion Act, 2002 boast provisions that seek to correct structural causes of food security in India.

Furthermore, laws relating to good governance and governmental accountability and transpar-

ency such as the Right to Information Act, 2005 exist to ensure that the government policies

and conducts are in line with the broader objective of ensuring food security in the country.

Similarly, the Biological Diversity Act, 2002 covers conservation, use of biological resources and

associated knowledge occurring in India for commercial and/or research purposes or for the

purposes of bio-survey and bio-utilisation. It also provides a framework for access to biological

resources and sharing the benefits incurred out of access and commercial use. The Act also

provisions the transfer of research results and application for IPRs relating to Indian biological

resources.25

Programmes and policies relating to rural development and employment generation also affect

food stability aspect of food security. In India, the Swarnjayanti Gram Swarojgar Yojana 1999;

the Sampoorna Grameen Rozgar Yojana, 2001 and the Mahatma Gandhi National Rural Em-

ployment Guarantee Act, 2005 are a few such programmes and laws that seek to enhance live-

lihood security, including food security by ensuring as well as generating employment.

A summarised list of Indian legislation dealing directly or indirectly with food security as

discussed above is presented below (Table 2).

Table 2: List of food-related legislation in India

Legislation relating to food

Name of legislation Year of en-actment

Availability Agricultural Produce Marketing (Regulation) Act Various years

The Essential Commodities Act 1955

24Ibid. at 33.

25 See Ibid. at 34.

26

Agricultural Produce (Development and Warehousing) Corpora-tion Act

1956

National Co-operatives Development Corporation Act 1962

Seeds Act 1966

Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act

1980

Fertiliser (Control) Order 1985

Fertiliser (Movement Control) Order 2001

Warehousing (Development and Regulation) Act 2007

Pesticides Management Bill 2008

Accessibility Reserve Bank of India Act 1934

Agriculture Refinance and Development Corporation Act 1963

Regional Rural Banks Act

1976

National Bank for Agriculture and Rural Development Act 1981

Land Acquisition Act 1984

Utilisation Consumers Protection Act 1986

Stability Essential Commodities Act 1955

Black Marketing Act 1980

Biological Diversity Act 2002

Competition Act 2002

Mahatma Gandhi National Rural Employment Guarantee Act 2005

Right to Information Act 2005

Nepal Nepal has about 5 million undernourished people according to the FAO.

26 These people, com-

prising 18.5 per cent of the total population, are supposedly “food sovereign” as per the Interim

Constitution of Nepal, 2007. Nepalese constitution guarantees “food sovereignty” as a funda-

26 FAO. 2012. The Status of Food Insecurity in the World. Available at http://www.fao.org/docrep/016/i3027e/i3027e.pdf (accessed 20 May 2013).

See Figure 1 above as well.

27

mental right of the people.27

In contrary, the translation of constitutional provision of right to food

into practice is far from reality. There is neither an enabling legislation to enforce the constitu-

tional spirit into practice, nor is there any programme at national or sub-national level to guaran-

tee food to the needy and deserving people.

Moreover, Nepalese people still continue to suffer from food insecurity. Out of 75 districts in the

country, 42 districts are considered food deficit.28

Chronic seasonal food deficit in the Western

and Far-western regions simply endorses the poor state of food security in Nepal. Over-

dependency on subsistence farming, inadequate infrastructures including poor irrigation facili-

ties, lack of access to quality seeds and fertilisers, among others, have even worsen the state of

food insecurity in the country.

The overall summary of the existing legal standards relating to various aspects of food security

in Nepal are presented in the following section.

Legislation relating to food availability The Nepalese legislation relating to food availability generally focuses on removing potential

market distortions that hamper availability of food to the people. These legislation have by-and-

large adopted regulatory measures to ensure food availability. For example, the Black Market-

ing and Few Other Social Offense and Punishment Act, 1975 (hereinafter referred to as “Black

Marketing Act"); the Consumer Protection Act, 1997 and the Essential Commodities Control

(Authorization) Act, 1961 (hereinafter referred to as "Essential Commodities Act") have taken

negative measures in order to prevent unreasonable food price hike or to check the supply of

food from food scarce regions to other regions of the country.

In addition, provisions of granting government the authority to fix price or direct supply of food in

certain regions (districts or zones), to force people to sell food to the government or food inse-

cure people, have widened the scope of government's intervention during the times of food

scarcity.

Moreover, the system of compulsory food deposit in accordance to the Land Act, 1964 helps

mobilise resources to address problems of food insecurity during crisis. The compulsory food

deposit system allows the government to devise a system of food-aid. However, the Land Act

and other prevailing legislation are not clear regarding the use of deposited food. The laws also

lack well defined criteria to gauge if the laws are being implemented on the ground or not.

Legislation relating to food accessibility Nepalese legislation pertaining to food security have devised a number of measures and rules

that are related to access to food. Some of the measures and rules are as follows:

27 The Interim Constitution of Nepal. 2007., Article 18(3).

28 FAO. 2010. Assessment of Food Security and Nutrition Situation in Nepal 2010 (FAO 57) Available at:

ftp://ftp.fao.org/OSD/CPF/Country%20NMTPF/Nepal/thematic%20studies/Food%20Security%20_Final_.pdf (accessed 9 June 2013)

28

Resource (land) re/allocation: The Land Act, 1964 sets land holding ceiling, provisions redistribution of lands above the ceiling

to the landless. Similarly, the National Code Chapter on Land Use prohibits holding of barren

land, and regulates the use and sharing of water resources for the purpose of cultivation

thereby ensuring maximum utilisation of available resources for food production. Likewise, the

Water Resources Act, 1992 further accords priority to use water for agricultural purpose in re-

gard to use or sharing of water resources.

Creation of food deposit or stock Establishment of a system that pools resources/food with an objective of distribution/sharing or

re-allocation during periods of food crisis contributes significantly on access to food. In this re-

gard, the Land Act's provisions of compulsory deposit system address this very aspect of ena-

bling access to food.

Incentives and safeguards in regard to access to food There exist a number of provisions in Nepalese law that address access to food by providing

incentives and safeguards for the same. The Land Act, 1964 provides agricultural debt related

security to the farmers along with incentives for cooperative farming to help ensure access to

food and resources. The National Code Chapter on Land Use encourages cultivation by provid-

ing tax exemptions for turning barren or sandy land into arable land.

Similarly, the Industrial Enterprise Act, 1992 boasts various incentives, including tax exemptions

in regard to establishment of a few (agro) industries in the remote regions of Nepal. The Forest

Act, 1993 also provides access to community forest and forest products in addition to authoris-

ing various economic activities to the members of community forest groups. Finally, the Water

Resource Act, 1992 promotes farmer managed irrigation system.

Government regulation The Local Self-Governance Act, in addition to market regulation to correct distortions preventing

people’s access to food, provisions various measures affecting the food sector. It ensures gov-

ernment’s assistance in resource allocation, resources conservation, management of food sup-

ply and distribution, assistance in making/purchasing seeds and fertilisers, adopting new tech-

nologies, and providing necessary agricultural inputs to the farmers. These measures can con-

tribute in effective production of food whereby contributing in making food more accessible.

Legislation relating to food utilisation Consumers’ right to quality goods including right to information regarding price, quality, quantity,

nature, proper labeling, etc. are enshrined in the Consumer Protection Act, 1998 and Black

Marketing Act, 1975. These legislation seek to ensure food items available in the market meet

appropriate quality standards.

The Animal Slaughterhouse and Meat Inspection Act, 1999 provides mechanisms for the moni-

toring and functioning of slaughterhouse and defines responsibilities of meat inspectors and

supervisors regarding the quality control of meat and meat products. Furthermore, the Local

Self Governance Act ensures quality control and standardisation of food by regulating slaugh-

29

terhouse operation and management. Similarly, the Animal Health and Livestock Services Act,

1999 provisions for animal quarantine and animal health.

The Food Act, 1966 prohibits adulteration or supply of sub-standard food. The Seed Act, 1988

additionally, prohibits certain seeds that may adversely affect productivity including those seeds

treated with pesticides. In addition to the aforementioned provisions, the Food Act, the Animal

Slaughterhouse Act and the Seed Act authorise government to standardise minimum quality of

food, meat and seeds respectively.

Legislation relating to food stability

The following Nepalese legislation are relevant to food stability as they seek to ensure

permanency in the availability of, access to and utilisation of food:

Regulation of market The Competition Promotion and Market Protection Act, 2007 regulates the market by prohibit-

ing price fixing, output limitation, market divisions, syndicate systems, and exclusive dealing.

The legislation, thus, focuses on ensuring availability of food without artificial disruptions and

distortions.

Provisions akin to the Competition Act can also be found in the Consumer Protection Act as the

latter also prohibits various restrictive business practices. Similarly, Black Marketing Act, by

prohibiting food hoarding, and Essential Commodities Act, by distributing food, aim to check

market anomalies to ensure consistency and predictability in the availability of and access to

quality food.

Management of resources The Land Act's provisions concerning compulsory deposit system, prevention of fragmentation

of land, and compulsory use of government's land are essentially some of the directives govern-

ing the management of resources in the long-run that can address immediate as well as future

food insecurity concerns and challenges.

Similarly, the Essential Commodities Act has provision governing the storage of food to meet

public demand. Provisions relating to management of resources are also enshrined in the Local

Self-Governance Act. The Act covers wide range of topics such as grazing fields for cattle, con-

trol of animal disease and construction of canals with participation of local communities. It also

provisions the management of resources and availability of food, seeds, fertilisers, agricultural

inputs to farmers etc.

A list of Nepalese legislation which deal with food security issues either directly or indirectly as

discussed above is presented here (Table 3).

Table 3: List of food-related legislation in Nepal

Legislation Name of legislation Year of en-

30

relating to

food

actment

Availability Essential Commodities Control (Authorization) Act 1961

Land Act 1964

Black Marketing and Few Other Social Offense and Punishment

Act

1975

Accessibility The Muluki Ain (National Code) Chapter on Cultivation of Land 1963

Land Act 1964

Industrial Enterprise Act 1992

Water Resource Act 1992

Forest Act 1993

Local Self Governance Act 1999

Utilisation Food Act 1966

Black Marketing and Few Other Social Offense and Punishment

Act

1975

Seed Act 1988

Consumer Protection Act 1998

Animal Health and Livestock Services Act 1999

Animal Slaughterhouse and Meat Inspection Act 1999

Stability Essential Commodities Control (Authorization) Act 1961

Land Act 1964

Black Marketing and Few Other Social Offense and Punishment

Act

1975

Industrial Enterprise Act 1992

Forest Act 1993

Consumer Protection Act 1997

Environment Protection Act 1997

Local Self Governance Act 1999

Competition Promotion and Market Protection Act 2007

Pakistan About 35 million people in Pakistan are undernourished according to the FAO which makes al-

most 19.9 per cent of the total population.29

The ‘Global Food Security Index 2012’ report of the

‘Economist Intelligent Unit’ (of ‘The Economist’ magazine) mentions the food security situation

29 FAO, The Status of Food Insecurity in the World, 2012 available at http://www.fao.org/docrep/016/i3027e/i3027e.pdf (accessed 20 May 2013). See

also Figure 1 above.

31

in Pakistan to be more dismal which has ranked Pakistan at 75 among 105 countries, with a

score of 38.5/100 (at a scale of 0-100, where 100 is the most favorable).30

The overall summary of the existing legal standards relating to various aspects of food security

in Pakistan are presented below-

Legislation relating to food availability Legislation relating to food availability in Pakistan can be broadly divided into legislation and

programmes that deal with food-aid or subsidies and legislation that regulate production, distri-

bution and supply of food in the market so that people can have better access to food.

Food-aid or subsidies related legislation and programmes The Pakistan Bait-ul-Mal Act, 1991 provides elaborate provisions of various forms of food-

related assistances to the people including food-aid. Among the assistances guaranteed under

the Act, following programmes are related to food-aid or availability of food:

a. Food Support Programme (FSP): The Food Support Programme targets poorest peo-

ple in Pakistan according to the pre-defined criteria of priority in granting aid with regard

to food access. The FSP was initiated in 2000 in response to increase in the price of

wheat.

b. Lungar Project: The Lungar Project targets family members and friends who come to

hospitals from remote parts of the country for treatment of their relatives. At present, the

project is running in 200 hospitals across Pakistan and ensures availability of food to

the needy who have come to hospitals for treatment or to take care of their family mem-

bers or close ones.

c. Pakistan Sweet Home, Special Friends: The Pakistan Sweet Home Project targets

orphans, ensuring availability of food to the children living in the orphanages.

In addition to the Bait-ul-Mal Act, the National Zero Hunger Action Plan, 2013 also seeks to ad-

dress the situation of food insecurity by ensuring availability of nutritious food to the food inse-

cure population.

The action plan has identified vulnerable groups in the society and the regions within the coun-

try as the beneficiaries of the programme which include school meal programmes, support to

food insecure households, cash/food support in disaster-hit areas, expansion of farm outputs

and market access, targeted social safety nets, rationalisation of market prices of food com-

modities and improved nutritious quality of food intake (fortified food).31

30 See, National Report on Food Security Legislation (Pakistan), Sustainable Development Policy Institute (SDPI) 2013.

31 See Ibid. at 30.

32

In addition to these, diversification of food production, establishment food processing industry

even at community level, food and nutrition awareness and education programme, food security

surveillance, research for food policy/production, quality improvement, storage, distribution, and

enhanced coordination among various federal and provincial ministries, and public-private-civil

society partnerships are some other activities envisaged by the Action Plan.32

Legislation related to regulation of foodstuffs The Foodstuffs (Control) Act, 1958 is the main legislation that seeks to regulate and control the

supply/distribution and trade of foodstuffs. The Act's main objective is to ensure people’s con-

venient access to foodstuffs at reasonable price.

Along with the Hoarding and Black Market Order, 1956, the Act penalises hoarding and ensures

availability of food in the market which can be easily accessed by consumers without any form

of market distortion.

The Agriculture Produce Market Act, 1939 also has provisions dealing with the availability of

food in the market. The Act regulates the purchase and sale of different agricultural produces,

including livestock and poultry products and by-products. It also endeavours to establish fair

price shops in order to allow people to access food at reasonable price. Furthermore, the Act

also lays down provisions regarding the establishment of warehouse, cold storage and so forth.

Pakistani legislation relating to food availability also include the Seed Act, 1976 which has pro-

visions aimed at making seeds available to the farmer as well as ways and means for ensuring

the quality of seeds.

The Plant Breeders Rights Bill was drafted in 2008 to ameliorate investment for the production

of quality seeds in Pakistan. The Bill also seeks to attract foreign investment and technology

transfer in the production of quality seeds.

Legislation relating to food accessibility Pakistani legislation relating to food accessibility deal with various ways of resource allocations.

The Land Reform Act-II, 1977 is arguably the most important legislation in this regard. The Act

defines ceiling in land holding and seeks to redistribute ceiling surplus lands among the tenants,

the landless and the poor in order to stimulate agricultural productivity and improve food secu-

rity.

In addition to the Land Reform Act, various rules relating to agricultural finance and income

support programme also fall under the purview of food accessibility aspect of food security in

Pakistan. The Zarai Taraqiati Bank Limited (ZTBL), which was initially incorporated under the

Agriculture Development Bank Ordinance, 1962 provides financial support and lending facilities

32 See Ibid. at 30.

33

to the farmers at affordable rates.33

Similarly, Agricultural cooperatives established under the

State Bank of Pakistan Act, 1956 also lend and provide financial supports to the farmers.

In addition to legislative provisions for resource allocation and access, the government of Paki-

stan has initiated Benazir Income Support Programme (BISP) to ensure the population below

the poverty line an access to financial assistance. Among various other programmes, it pro-

vides, among others, trainings and long-term interest free debts thereby enabling poor to ac-

cess basic amenities including food.

Legislation relating to food utilisation Food utilisation aspect of food security in Pakistan is mainly governed by the Pure Food Ordi-

nance, 1960. The Ordinance regulates the quality of food available in the market for consump-

tion. The Ordinance deems various acts that degrade the quality of food as criminal offences

and hence provides mechanisms for administering and controlling quality of food in the market.

In addition to the Ordinance, the Cantonment Pure Food Act, 1966 and the Cantonment Pure

Food Order, 1967 also prevent adulteration of food in cantonment areas. Apart from the above

mentioned laws, the Agricultural Pesticides Ordinance, 1971 and the Seed Act, 1976 also regu-

late the quality of pesticides and seeds in the market.

Legislation Relating to Food Stability The National Climate Change Policy, 2012 has tried to address the challenges brought about by

climate change in the agricultural productivity. The Policy has devised various strategies to miti-

gate the adverse impacts of climate change and ensure the agriculture productivity maintaining

an adequate level in order to meet demands. The Policy envisages diversification of agriculture

production, agriculture research, improvements in agricultural infrastructure, maintain relation-

ship with other South Asian countries, and regulation and control of seeds quality, pesticides,

fertilisers etc.

The National Zero Hunger Action Plan, 2013 also boasts a few strategies that are crucial in en-

suring food stability in Pakistan. The Plan recommends activities such as food security surveil-

lance, research for food policy/production, quality improvement, storage, distribution, and en-

hanced coordination among various federal and provincial ministries, and public-private-civil

society partnerships.

A list of legislation dealing with food security issues in Pakistan as discussed above has been

tabulated below.

Table 4: List of food-related legislation in Pakistan

Legislation relat-

ing to food

Name of legislation Year of enact-

ment

Availability Agriculture Produce Market Act 1939

33 See for detail, Ibid. at 15.

34

Hoarding and Black Market Order 1956

Food Stuffs (Control) Act 1958

Seed Act 1976

Pakistan Bait-ul-Mal Act 1991

Accessibility State Bank of Pakistan Act 1956

Agriculture Development Bank Ordinance 1962

Land Reform Act-II 1977

Utilisation Pure Food Ordinance 1960

Cantonment Pure Food Act 1966

Agricultural Pesticides Ordinance 1971

Seed Act 1976

Sri Lanka According to FAO 25 per cent of the total population in Sri Lanka, which is 5 million, are

undernourished.34

Food security in Sri Lanka has been a challenging issue because of harsh

weather characterised by frequent draughts, floods and landslides. The arable land available for

cultivation is not sufficient to feed the nation. Given this shortage in food production, the country

relies on food import. Therefore, Sri Lanka was classified as a food deficit country in 2009 by

FAO. 35

The Constitution of the Democratic Socialist Republic of Sri Lanka in its Directive Principles has

stipulated that the citizens shall have access to adequate food. Although the constitutional

provision is not enforceable in the court of law, this provision speaks a volume about the state’s

concern over food security in the country.

A general summary of the existing legal norms and standards relating to various facets of food

security in Sri Lanka are presented below.

Legislation relating to food availability Food availability aspect of food security in Sri Lanka is governed by two general legislation.

First, the Consumer Affairs Authority Act, 2003 aims to protect consumers and regulate trade in

goods, including food products. The Act regulates the market by preventing unfair and

restrictive trade practices. Particularly, the Act prohibits practices or measures that hinder

availability of food such as hoarding of food products, collusion in price, etc. Second, the

34 FAO. 2012. The Status of Food Insecurity in the World. Available at http://www.fao.org/docrep/016/i3027e/i3027e.pdf (accessed 20 May 2013).

35 See, Prakrama A. Samaratunga. 2000. Multiple Facets of Food (In) Security in Sri Lanka: An Input to Food Policy (eds: S. Mittal and D. Sethi,

Policy Options to Achieve Food Security in South Asia, Foundation Books: 2000) 53.

35

Fisheries and Aquatic Resources Act, 1996 ensures people's access to sea and other water

resources for subsistence level fishing. The Act waives the requirement of license to help

promote subsistence level fishing methods with natural access to sea products.

Legislation relating to food accessibility The Pasture Lands (Reservation and Development) Act, 1983 plays an important role in

allowing people to access resources (land) for the purpose of strengthening food security. The

Act provisions that the state may allow individuals or private entity engaged in livestock

breeding to use pasture lands in order to establish and develop animal farming and other

appropriate use of pasture lands. The Act basically allows people to access rare pasture lands

by using the land for better food production.

In addition to the Pasture Lands Act, the Forest Conservation Ordinance, 2009 also provides

access to forest products that can prove vital inputs to agriculture industries, which ultimately

contribute to food security. Finally, the Seed Act, 2003 has provisions for farmers' access to and

supply of quality seeds. The Act also has provisions dealing with the production and distribution

of seeds.

Legislation relating to food utilisation Food utilisation aspect of food security in Sri Lanka is mainly regulated by the Consumer Affairs

Authority Act, 2003; Food Act, 1980 and the Seed Act, 2003. All these Acts have provisions that

regulate quality of food products and seeds available in the market. The Consumer Affairs

Authority Act further stipulates, among others, provisions governing consumer safety and

labeling requirements in order to ensure consumers’ access to quality food products in the

market.

Legislation relating to food stability The Consumer Affairs Authority Act, 2003 and the Food Act, 1980 are also vital in providing

legal impetus in ensuring availability and access to food in Sri Lanka. Additionally, Sri Lanka

has devised numerous policies in recent years to address food insecurity that can have a deep

impact on ensuring food stability. The National Nutrition Policy of Sri Lanka, 2010; the National

Agricultural Policy and the National Livestock Development Policy have identified the need for

not only ensuring availability of food to the people, but also devising measures to sustain such

availability in a long run.

The National Agricultural Policy, among others, stresses on agricultural production, availability

and quality of seeds, pesticides, irrigation and water management, land use, agricultural

research, traditional agricultural crops and methodologies, utilisation and sharing plant genetic

resources which are very crucial in bringing stability in food availability.

Similarly, the National Livestock Development Policy seeks to maintain resources essential for

livestock farming amidst a dearth of pasture land. Livestock farming, including dairy farming,

continue to contribute to the food security situation in Sri Lanka.

36

A list of legislation in Sri Lanka dealing, either directly or indirectly, with food security issues as

discussed above is presented hereunder (Table 5).

Table 5: List of food-related legislation in Sri Lanka

Legislation

relating to

food

Name of legislation Year of en-

actment

Availability Fisheries and Aquatic Resources Act 1996

Consumer Affairs Authority Act 2003

Accessibility Pasture Lands (Reservation and Development) Act 1983

Seed Act 2003

Forest Conservation Ordinance 2009

Utilisation Food Act 1980

Consumer Affairs Authority Act 2003

Seed Act 2003

Stability Food Act 1980

Consumer Affairs Authority Act 2003

Common features and best practices: "Regional benchmarks" Food security-related legislation in South Asian countries have broadly covered the four aspects

of food security as indicated by the FAO. However, the degree to which each country has tried

to ensure food security related aspects in its legislation varies. In the following section, com-

parative study of legislation pertaining to food security in five South Asian countries, including

the prevailing best practices in these countries are presented.

The best practices are derived from the legislation in force in five South Asian countries. Such

best practices are sensitive to the unique needs and challenges of South Asia. Additionally, the

best practices encompass all the four elements of food security as discussed in section 1 of this

report. The best practices provide promising impetus for food-related legal and institutional

frameworks essential for guaranteeing food security in South Asia. The best practices pre-

sented in this section may serve as regional benchmarks with regard to future development of

food security law in the region.

4.1. Food-aid India and Pakistan have clear legislative frameworks that address food-aid. Particularly, Indian

legislation has clearer, broader and more comprehensive mechanisms relating to public distri-

bution of food in the country. With the introduction of Food Security Bill in the parliament the

existing public distribution systems and provisions for food-aid are going to be wider and univer-

sal, which shall certainly have a significant impact on India's effort to make its people more food

37

secure. Pakistan's food-aid provisions, although not as comprehensive as that of India, seek to

extend government's assistance to the most vulnerable population in the country.

Needless to say, food-aid provision in any country necessitates significant allocation of re-

sources36

and equally effective and transparent public distribution system.37

In addition to food-

aid provisions, it is essential that legislative measures are adopted to ensure stability in people's

access to such state benefits. Hence, food-aid alone may not be adequate, and that additional

and separate legislative measures should be put in place to ensure food availability as seen

from the experience of countries in South Asia that are already providing such aid to their peo-

ple.

As regards market regulation to ensure food availability, all South Asian countries have under-

taken various legislative measures. They have given a great emphasis on government's regula-

tion of food production, distribution, supply and trade.

Thus, the legislation relating to food availability in South Asian countries under the purview of

this study have tried to remove market distortions to ease supply and distribution of food in their

markets. Moreover, provisions enshrined in such legislation stress on controlling market price of

food to benefit poor and needy ones. Perhaps, the provision of compulsory deposit of food

grains in the Land Act of Nepal and voluntary food storage system under the Village Grain Bank

Scheme of India present viable mechanism of ensuring food availability to the people of South

Asia.

4.2. Seed and fertilisers security Availability of good quality seeds and fertilisers to farmers, in addition to other agriculture infra-

structures, is crucial in ensuring food security. The legislation of all South Asian countries en-

deavour to make seeds and fertilisers available at reasonable price. The availability of seeds

and fertilisers are likely to assume increased salience in the context of climate change emerging

as a major threat for their availability. Although Seed Banks are already established at the na-

tional level in some South Asian countries and the one yet to be established at the regional level

could serve as a cushion for seed security, various innovative mechanisms are essential to en-

sure unhindered flow of such inputs.

4.3. Resource allocation and management Resource allocation is one of the crucial measures that a country can adopt to overcome the

situation of food insecurity. Appropriate resource allocation not only allows the otherwise de-

36

According to the Director General of IFPRI, the current cost of food subsidies in India is more than 20 times what it was two decades ago, hovering around 0.8 per cent of GDP during the past five years. The subsidy to be provided under the much talked about Food Security Bill is US$24 billion, which raises financial sustainability questions given India’s recent economic slowdown and efforts to cut its fiscal deficit. See Fan Shenggen. 2013. The road ahead for India’s National Food Security Bill 30 April. ( Fan East Asia Forum) Available at: http://www.eastasiaforum.org/2013/04/30/the-road-ahead-for-indias-national-food-security-bill/ (accessed 6 June 2013).

37Ibid.

38

prived people in accessing food directly but also ensures stability in the food security system.

The legislation of all South Asian countries have some form of resource allocation mechanisms.

Particularly, land reform that defines land ceiling and redistributes surplus (land) among the

landless and the poor is the most common form of resource allocation in South Asia.

Such land reform measures have potential of ensuring access to resources vital for food secu-

rity to the most food insecure people in any given country. Similarly, agricultural finance that

assists farmers in accessing capitals and financial aids also represents a form of resource allo-

cation benefitting the poor and the food insecure populace.

Furthermore, incentives to the people for the optimum utilisation of natural resources to secure

food for them can take a form of resource allocation which in turn contributes to food security.

Incentives and authorisation to use water resources, forests, sea, among others, are a few ex-

amples that can be found in the existing legislation in South Asian countries.

4.4. Food safety and quality of food Law defining and implementing food safety standards are common in all South Asian countries.

These countries have tried to regulate the quality and safety standards of foodstuffs by provi-

sioning substantive rules governing food standard as well as authorising respective administra-

tive agencies to monitor and enforce the standards in the market. Generally, the legislation per-

taining to food safety are consumer rights law, seed law, food safety law etc.

4.5. Market regulation In addition to food quality, it is also important that potential market distortions in the form of anti-

competitive conducts, hoarding, violations of consumers' rights, etc. should be prevented to en-

sure food security.

In fact, resource allocation or even food-aid alone can never become effective without strong

market regulation that can respond to various forms of market distortions. Needless to say, such

distortions impede the prospects of passing benefits of resource allocation and food-aid to the

people. Furthermore, regulatory mechanisms are vital as they make distribution system credible

and effective. Regulatory provisions essentially complement resource allocation and food-aid

measures in addition to making market more efficient and transparent.

The South Asian countries have embraced laws such as the competition law, laws against black

marketing, consumer rights protection laws, etc. to regulate their markets so as to check un-

scrupulous trading and to protect consumers.

4.6. Agricultural sustainability Various threats to sustainability of agriculture system pose a serious effect on food security.

Notably, climate change, unfriendly IPR regimes for the farmers, lack of agricultural infrastruc-

ture, among others, can adversely affect sustainability in agricultural productivity thereby mak-

ing the future less food secure.

39

In this regard, legislative and policy efforts can overcome the threats of climate change while

protecting farmers’ rights to plant variety, developing agricultural infrastructure, protecting envi-

ronment and biodiversity. Such efforts can assist in promoting sustainable agricultural practices.

This, in turn, should be done by ensuring farmers' right to access genetic resources; protection

of plant variety rights; access to agricultural infrastructures, seed and fertilisers as well as pro-

tection against climate change in the forms of climate insurance and technology transfer.

4.7. Government responses to food scarcity and insecurity Natural disasters, low agriculture production, diseases, sudden rise in demand and price,

among others, may give rise to unprecedented situation of food insecurity. Such situation re-

quires specific laws to ease out the state of insecurity with an immediate effect.

Legislative frameworks that lay foundations for food security equally need to be complemented

with provisions that enable the state to respond to sudden food scarcity or situation of food in-

security. In addition to general legislative framework that seeks to attain food security, it is

equally essential that food security specific legislative framework should also be enacted to ad-

dress sudden food-crisis. Similarly, the distribution system responding to sudden situation of

food scarcity should particularly be tailor-made for prompt action of providing relief to the people

during food-crisis.

Nepalese Essential Commodities Act can be one such example of legislative response to over-

come sudden food scarcity. The Act prevents deflection of supply of food from food scarce re-

gions to other regions of the country, authorises the government for direct supply of food in cer-

tain region (districts or zones) and forces people to sell food to the government or to the food

insecure people.

Similarly, provisions for mandatory storage of food grains as enshrined in the Indian Village

Grain Bank Scheme or Nepalese Land Act also reassure the ability of the state and communi-

ties to respond to the situation of sudden food scarcity.

4.8. Climate change Climate change remains one of the biggest challenges in ensuring food security in the region.

However, the region is yet to take any clear legislative measure to ensure food security in con-

text of the imminent challenges posed by climate change.

In Pakistan, the National Climate Change Policy, 2012 seeks certain measures and strategies

such as enhancing natural disaster preparedness in the agricultural sector, development of

technologies and infrastructures, access to finance, resource management and regional coop-

eration to overcome the threat of climate change in the food security.

40

The Nepalese Climate Change Policy, 201138

also broadly discusses the need to mobilise re-

sources properly in order to ensure people's access to food and livelihood. However, both poli-

cies on climate change do not explicitly encompass methods for risk transfer, risk reduction,

loss prevention and early warning, which are vital in countering the challenges of climate

change.

However, apart from climate change policy, clear rules governing risk transfer or reduction

methods can be secured through various legal instruments. Such instruments devised for miti-

gating the effects of climate change and ensuring food security may include provisions for cli-

mate insurance, emergency funds transfer and early warning mechanisms. The climate insur-

ance, in particular, can assist the risk transfer and mitigation and ensure the poor and the

smallholder farmers are protected in the events of severe climate or climate change.

Indeed, the normative contents of the climate insurance in regard to food security relate to early

stage of development. Therefore, it is very difficult to identify clear standards from a legal per-

spective with regard to climate insurance. However, climate insurance rules should at the least

be framed in compliance with public-private-partnerships based solutions as opposed to the

private insurance that largely deals with other areas of insurance. Climate insurance rules that

concern only public sector solutions may de-motivate the community in participating in risk pre-

vention and mitigation. On the other hand, pure private sector solution would make climate in-

surance inaccessible for the poor and the smallholder farmers because of the high cost.

4.9. Governance related provisions Administrative and judicial mechanisms are also essential to ensure that the benefits and the

protections defined by food security legislation are passed on to the people. Legal provisions

relating to non-discrimination, transparency, and fair judicial hearing can function to ensure effi-

cient application of legal protections in regard to food security.

Non-discrimination laws in addition to other laws addressing social exclusions help bring the

otherwise excluded people from the social-political life on to the ambit of the protection offered

by food security law.

Transparency rules such as right to information, community participation in rule making and im-

plementation process act as formidable check on the potential arbitrary application of food secu-

rity law and corruption.

Finally, effective and prompt legal remedies serve to make food security law more meaningful

and enforcing in the events of violation of food security law.

38 See, Government of Nepal. 2011. Climate Change Policy. Available at: moenv.gov.np/.../CC%20Policy%20Final%20English%20030311.doc (

accessed 13 June 2013)

41

Conclusion Apart from laws relating to food-aid, the South Asian countries broadly have similar legislative

framework in the realm of food security. However, the laws that are in force—despite covering

different aspects of food security—are not explicitly food-related legislation. That is to say, legis-

lation that cover the food sector still do not embrace food security as their overarching objective.

Absence of specialised food security legislation with a core objective of ensuring food security is

an evidence in this regard.

In fact, most of the legislation, such as food supply and distribution related legislation have em-

phasised on government’s regulation over rights based approach to food law. Therefore, most

of the food-related laws rely on government regulations instead of resource allocation and ac-

cess. Moreover, rights based approach to food security—that essentially prioritises human

rights of the poor and the hungry populace in food-related laws—misses out entirely here.

Needless to say, it can never be ruled out that government’s regulation and control of market

and market distortions play important role in supporting food security. Over reliance on market

regulation in South Asia, however, shows that by-and-large the region has failed to acknowl-

edge the real causes of food insecurity in the region.

As noted in the introductory section more than the practices that violate consumers’ rights and

competitive structure of the market the existing laws to a larger extent fail to address some of

the pressing issues such as people’s access to resources, disparity in the living standards of

the people, environmental or climatic challenges leading to food insecurity.

In this milieu, first, it is vital that the South Asian countries uphold food security related laws

from food based and rights based approach. Likewise, the laws should keep people's right to

food at the centre rather than relying on government's initiatives or authority to regulate market

while framing food security law. Furthermore, the countries should move on to address resource

allocation and access to resource question more effectively and clearly. This is evident that the

legislation that fail to address these questions will have very little impact on rural poor.

The extent and scope of resource allocation vary from country to country depending upon each

country's economic strength and needs. Therefore, allocating large amount of resources may

become a daunting task to some of the South Asian countries. In fact, a number of questions

may arise pertaining to the sustainability of Indian Food Security Bill and public distribution sys-

tem owing to their burden upon the national treasury.

While it is essential that each country takes effective measures to ensure access to resources

(food), it should be left with each country to determine its scope for food security law with regard

to resource allocation.

42

Second, instead of scattering various food security related provisions in different laws, it will be

far more effective to adopt an umbrella food security legislation that covers provisions relating to

food access, resource allocation and access, market regulation and control, quality standard,

distribution related rules, and other relevant provisions including those governing the sustain-

ability of the system.

Indeed, as pointed out by the FAO (2005), “There is a growing tendency to combat fragmenta-

tion and to improve the national legal and administrative framework by adopting a basic food

law which establishes a primary authority to oversee the food system ‘from farm to fork’”.

However, what South Asian countries still lack is the legislation relating to some crucial issues

on food security. This is, perhaps, some of these issues are still evolving and the magnitudes

and nature of impacts are yet to be fully understood.

Three such issues merit special attention. First, the gender dimension of food security that in-

cludes intra-household distribution of food, which not only concerns the availability aspect but

lot to do with utilisation and stability of food. Given several socio-economic and cultural factors

accentuated by intra-household bargaining strength, the male members at the household level

in South Asia tend to have access to much higher calorie food compared to their women coun-

terparts.39

This has significant bearing on the nutritional status of the women members of the households,

particularly in poor families with the level of malnutrition being much higher in women than in

men.

As a matter of fact, in South Asia, gender issue has been found to be the most significant de-

terminant of malnutrition among young children and the most common cause of death among

girls below the age of five years.40

This is partly because women are the last ones to eat in the families living on the left-over after

feeding male members and children in the household. They often have to content with much

lower food intake or even have to skip meals in times of crisis in order to keep their male mem-

bers and children relatively better fed.41

At this age and time, any food-related legislation remaining apathetic to such an appalling level

of gender-based food insecurity is clearly not acceptable.

39 There are also evidence from parts of South Asia to suggest that while male members in households are provided with more protein (milk and fats)

with their cereals, women members are given more cereals and less of other more nutritious food. Ramachandran, Nira. 2006. Women and Food Se-

curity in South Asia: Current Issues and Emerging Concerns.( Ramachandran 2006/131)Helsinki: World Institute for Development Economics Re-

search.

40 Ibid.

41 Ramachandran, Nira. 2004. Seasonal Hunger: Implications for Food and Nutritional Security,. M. S.

Swaminathan and P. Medrano (eds), Towards Hunger Free India: From Vision to Action. Madras: East

West Books Pvt. Ltd.

43

Second, the impact of climate change on food security, which could be severe in region like

South Asia is yet to be addressed by legislation. Although these issues are addressed through

policies, the fact that they still remain not enforceable dampens their effectiveness as far as the

realisation of the stated objectives by the stakeholders is concerned.

Climate change insurance; investment in public sector research and development; and provid-

ing fiscal incentives for channeling private financing in this area for facilitating climate adaptation

and adoption of other safety-nets to help people—particularly the poor, marginalised and vul-

nerable ones—mitigate the impact of climate change and prevent them from sliding back into

food insecurity are sine qua non. The earlier they are legislated, the better it is for the region as

a whole as well as for individual countries in the region.

Third, although the mechanism for devising regional solution to the problem of food security has

been instituted in South Asia since more than two decades now, they are still in the process of

taking a shape.

While SAARC Food Bank has more or less been operationalised now42

, a regional agreement

on SAARC Seed Bank, which enumerates climate adaptation as an explicit objective, has been

signed lately.43

Although there are problems with both the initiatives in terms of operational modalities and var-

ied level of commitment from the countries in the region,44

they have not enacted enabling legis-

lation to implement the spirit of the regional cooperation in the area of food security on the

ground.

The legislation does matter as far as translating any country’s commitment to ensure food se-

curity for its people and communities, particularly those who are food insecure due to deficien-

cies in some or all the four constituent parts of food security is concerned.

However, what matters the most is their implementation, an area where South Asian countries

generally do not have good records. While there are various reasons for the persistence of this

pathology, one can single out governance problems, resource constraints, absence of commit-

ments and lack of capacity of the government officials and above all political economy factors

as the possible reasons.

The study has demonstrated that the "regional benchmark" identified in this report are neither

unique nor alien to South Asian context. In fact, each element is drawn from the law and prac-

tice of one or more South Asian countries included in this study.

42 See, for example, Pant (2012), Rahman and Khaled (2012); Adhikari (2013).

43 See Adhikari (2012) and Adhikari (2013).

44 See Adhikari (2013).

44

Although not all South Asian countries have covered all the elements of "regional benchmark" in

their legislation, (when all South Asian countries' legislation are taken together) they address

every element of the “regional benchmark”.

It is, therefore, an indication that good governance and effective implementation have crucial

role to play. Hence, a study on implementation aspects of legislation in the region and identifica-

tion of critical constraints that impede the possibility of implementing well-defined legislation is a

logical next big step to address the problem of food insecurity in the region.

45

REFERENCES

Bala Ravi, S. 2009. The Conflict between Seed Bill and PPVFR Act of India: Lessons for other

South Asian Countries. Kathmandu: South Asia Watch on Trade, Economics and Envi-

ronment.

(Bala Ravi, S. 2009, Policy Brief, No. 19)

Fan, Shenggen. 2013. The road ahead for India’s National Food Security Bill, April 30. East

Asia Forum. (Fan 2103)

Available at: http://www.eastasiaforum.org/2013/04/30/the-road-ahead-for-indias-national-food-

security-bill/.

FAO. 2010., Assessment of Food Security and Nutrition Situation in Nepal. (available at:

ftp://ftp.fao.org/OSD/CPF/Country%20NMTPF/Nepal/thematic%20studies/Food%20Sec

urity%20_Final_.pdf (accessed 9 June 2013)

FAO. 2006. Food Security. , (FAO 2006 Policy Brief, issue 2) Available at:

ftp://ftp.fao.org/es/ESA/policybriefs/pb_02.pdf (accessed on February 28, 2013).

FAO. 2009. The Right to Food: Guide to Conducting a Right to Food Assessment. Rome: FAO.

FAO. 2006. The Right to Food Guidelines Information Papers and Case Studies. Rome: FAO.

FAO. 2012. The Status of Food Insecurity in the World, (available at

http://www.fao.org/docrep/016/i3027e/i3027e.pdf (accessed 20 May 2013).

FAO. 2013. The Status of Food Insecurity in the World, Executive Summary. Available at

http://www.fao.org/docrep/016/i2845e/i2845e00.pdf (accessed 20 May 2013).

Government of Nepal. 2011. Climate Change Policy (Available at:

moenv.gov.np/.../CC%20Policy%20Final%20English%20030311.doc (accessed 13

June 2013)

National Report on Food Security Legislation (India). 2013. Hunger and Malnutrition in India:

Status, Causes and Cures. Available at http://www.angoc.org/portal/wp-

content/uploads/2012/09/12/vietnam-food-and-nutrition-security-situationer/India.pdf

cited in the. CUTS International.

National Report on Food Security Legislation (Bangladesh). 2013. Bangladesh Environmental

Lawyers Association (BELA).

National Report on Food Security Legislation (India). 2013. CUTS International.

National Report on Food Security Legislation (Pakistan), Sustainable Development Policy Insti-

tute (SDPI) 2013.

National Strategy for Accelerated Poverty Reduction II. 2013. Cited in National Report on Food

Security Legislation (Bangladesh). Bangladesh Environmental Lawyers Association

(BELA) . (BELA FY 2009-11).

Prakrama A. Samaratunga. 2000. Multiple Facets of Food (In) Security in Sri Lanka: An Input to

Food Policy (eds: S. Mittal and D. Sethi, Policy Options to Achieve Food Security in

South Asia, Foundation Books).

46

Ramachandran, Nira. 2004. Seasonal Hunger: Implications for Food and Nutritional Security, in

M. S. Swaminathan and P. Medrano (eds), Towards Hunger Free India: From Vision to

Action. Madras: East West Books Pvt. Ltd.

Ramachandran, Nira. 2006. Women and Food Security in South Asia: Current Issues and

Emerging Concerns, Research Paper No. 2006/131, November. Helsinki: World Insti-

tute for Development Economics Research.

. 2013.Cabinet Approves Food Security Bill Ordinance, 4 July.

The Interim Constitution of Nepal. 2007.

The World Bank. 2013. South Asia Regional Brief. 17 April. Available at:

http://www.worldbank.org/en/news/feature/2013/04/17/south-asia-regional-brief (ac-

cessed 23 June 2013).

World Food Summit .1996. See FAO, Food Security, Policy Brief, 2006, issue 2.

47

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