South Asia Food Legislation Study

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

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

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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 BISP FAO FSP GDP GHI ICESCR IFPRI INR IPR NAPCC NGO PDS SAARC WFP WTO ZTBL

Agricultural Produce Marketing (Regulation) Act Benazir Income Support Programme Food and Agricultural Organization of the United Nations Food Support Programme Gross Domestic Product Global Hunger Index International Covenant on Economic, Social and Cultural Rights International Food Policy Research Institute Indian Rupees Intellectual Property Right National Action Plan on Climate Change Non-profit organisation Public Distribution System South Asian Association for Regional Cooperation World Food Programme World Trade Organization 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 project 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. Consequently, 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), Sustainable 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; organization 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 explored 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 Conference 2015 has brought another opportunity to place the regional synthesis report before the respective audiences 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 Executive 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 Dollaporn Intr-roong, who provided various forms of support during the implementation. I would like to thank the authors, 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 Development, 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 undernourished in the region. The Global Hunger Index (GHI) has termed the state of food insecurity in Bangladesh, India and Nepal as â&#x20AC;&#x153;alarmingâ&#x20AC;? 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 during 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 nonfunctional public distribution system; and environmental, regional and national cooperation-related factors. Climate 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 security 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 security 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 6

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 salient 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 production. 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 development; 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 Association 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 persistence 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 address 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 1

world’s poor. South Asia also hosts the highest number (304 million) of the world’s undernourished population according to the Food and Agricultural Organization of the United Nations 2

(FAO). 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 undernourished population from 34.6 per cent to 16.8 per cent. Sri Lanka still lags behind other countries 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.

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2

See World Bank. 2013. South Asia Regional Brief. 17 April. Available at: http://www.worldbank.org/en/news/feature/2013/04/17/south-asiaregional-brief (accessed 23 June 2013).

See, FAO. 2013.

The Status of Food Insecurity in the http://www.fao.org/docrep/016/i2845e/i2845e00.pdf (accessed 20 May 2013).

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World.

Executive

Summary

20

May.

Available

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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 International Food Policy Research Institute (IFPRI), Welthungerhilfe, a German non-profit organisation (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 capacity 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 coun3

try in the region—witnessed over the past two decades. 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 4

region. 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 Cooperation (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 th

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

to this effect was signed at the 14 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 withdrawal. 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 regional 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 operational to achieve its objective and reduce the vulnerability of South Asian poor from food insecurity. 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 5

food and fuel prices, climate change, and relatively high rate of population growth. 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 â&#x20AC;&#x201C; 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 authorsâ&#x20AC;&#x2122; 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.

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Given this absence of specialised legislation, among others, the right to food can neither be ensured 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), farmersâ&#x20AC;&#x2122; 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 foodaid 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 endowment 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 countries in the world) to have enacted Plant Variety Protection and Farmersâ&#x20AC;&#x2122; Rights Act in 2001.

The Act, considered an epitome in balancing rights of farmers and breeders, was enacted notwithstanding 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

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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. 13 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.

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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.

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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 reflects 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 constitutional 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 practices 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 concerns relating to food security. Finally, the report presents recommendations for possible adoption 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 ability of the people to continually access food even during the period of economic or climatic crisis. 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 preferences for an active and healthy life”.

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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.

World Food Summit. 1996. See FAO, Food Security, Policy Brief, 2006, issue 2.

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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 commodity bundles over which a person can establish command given the legal, political, economic and social arrangements of the community in which they live (including traditional 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.

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Similarly, the existence of food security is determined generally by two factors. First is the allocation of resources among the population so that peopleâ&#x20AC;&#x2122;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 â&#x20AC;&#x153;sustainable agricultural and rural development with targeted programmes for enhancing direct access to food for the most needy.â&#x20AC;?

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That is, the FAO stresses the need to tackle food insecurity in the context of diversity underscoring 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 countries, namely Bangladesh, India, Nepal, Pakistan, and Sri Lanka.

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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.

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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 remains 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 dignified 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 beyond “providing" food.

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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

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

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

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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 obligations 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 resources.

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

th

In October 2012, GHI listed Bangladesh as the 68 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

16

food.

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 emphasising 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), Bangladesh Environmental Lawyers Association (BELA) 2013.

17

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 landceiling and re-distribution of acquired lands. Moreover, like the general land reform law, it seeks to ensure everyoneâ&#x20AC;&#x2122;s access to land in order for people to maintain food security.

Bangladesh Land Holding Limitation Order, 1972 is also relevant while determining the landceiling. 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 farmersâ&#x20AC;&#x2122; 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.

18

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-

Name of legislation

Year of en-

ing to food Availability

actment Private Fisheries Protection Act

1889

The Essential Articles (Price Control and Anti-Hoarding) Act 1953 Control of Essential Commodities Act 19

1956

Accessibility

Utilisation

Essential Commodities Act

1957

Consumer Rights Protection Act

2009

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

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)

1983

Ordinance

Stability

Bangladesh Standards and Testing Institution Ordinance

1985

Consumer Rights Protection Act

2009

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

20

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

21

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 System, 1992 and Targeted Public Distribution System, 1997) to ensure an efficient distribution system 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 unforeseen circumstances in rural India. The system of food grain storage is one of the important aspects 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 regulates 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 territories 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 objectives 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 22

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 fertilisers 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 creation 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 infrastructure 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 surplus 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 21

far.

19

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

20

Ibid.

21

Ibid.

23

The Land Acquisition Act also ensures various protection measures in favour of tenants by conferring 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 suffering 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 essential 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 management 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 strengthened 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 available to the people. In this regard, the Consumers Protection Act, 1986 provisions various safety measures to ensure consumersâ&#x20AC;&#x2122; access to quality goods including foodstuffs. In addition, various 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 agricultural 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 â&#x20AC;&#x2DC;Sustainable Agricultureâ&#x20AC;&#x2122; in the context of risks associated with climate change by devising appropriate adaptation and mitigation strategies for ensuring food security, equitable access to food resources, enhancing livelihood opportunities and contributing to stability at the national level.

22

See, Ibid. at 21-23.

23

See Ibid. at 32-33.

23

24

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 increase 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 Competition 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 transparency 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 Employment Guarantee Act, 2005 are a few such programmes and laws that seek to enhance livelihood 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 enactment

Availability

Agricultural Produce Marketing (Regulation) Act

Various years

The Essential Commodities Act

1955

24

Ibid. at 33.

25

See Ibid. at 34.

25

Agricultural Produce (Development and Warehousing) Corpora- 1956 tion Act 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

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

Accessibility

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 funda26

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.

26

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 constitutional spirit into practice, nor is there any programme at national or sub-national level to guarantee 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. Overdependency on subsistence farming, inadequate infrastructures including poor irrigation facilities, 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-andlarge adopted regulatory measures to ensure food availability. For example, the Black Marketing and Few Other Social Offense and Punishment Act, 1975 (hereinafter referred to as â&#x20AC;&#x153;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 insecure 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)

27

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 regard 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 regard, the Land Act's provisions of compulsory deposit system address this very aspect of enabling 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 providing 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 authorising 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 peopleâ&#x20AC;&#x2122;s access to food, provisions various measures affecting the food sector. It ensures governmentâ&#x20AC;&#x2122;s assistance in resource allocation, resources conservation, management of food supply and distribution, assistance in making/purchasing seeds and fertilisers, adopting new technologies, and providing necessary agricultural inputs to the farmers. These measures can contribute in effective production of food whereby contributing in making food more accessible.

Legislation relating to food utilisation Consumersâ&#x20AC;&#x2122; 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 monitoring 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 slaugh28

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 prohibiting 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 governing 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, control 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-

29

relating to

actment

food Availability

Essential Commodities Control (Authorization) Act

1961

Land Act

1964

Black Marketing and Few Other Social Offense and Punishment 1975 Act Accessibility

Utilisation

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

Food Act

1966

Black Marketing and Few Other Social Offense and Punishment 1975 Act

Stability

Seed Act

1988

Consumer Protection Act

1998

Animal Health and Livestock Services Act

1999

Animal Slaughterhouse and Meat Inspection Act

1999

Essential Commodities Control (Authorization) Act

1961

Land Act

1964

Black Marketing and Few Other Social Offense and Punishment 1975 Act 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 almost 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.

30

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 belowLegislation 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, distribution 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 foodrelated 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 people 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 members 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 address the situation of food insecurity by ensuring availability of nutritious food to the food insecure population.

The action plan has identified vulnerable groups in the society and the regions within the country 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 commodities 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.

31

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 peopleâ&#x20AC;&#x2122;s convenient 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 provisions 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 security.

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.

32

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 Pakistan 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 provides, among others, trainings and long-term interest free debts thereby enabling poor to access basic amenities including food.

Legislation relating to food utilisation Food utilisation aspect of food security in Pakistan is mainly governed by the Pure Food Ordinance, 1960. The Ordinance regulates the quality of food available in the market for consumption. 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 regulate 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 mitigate 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 relationship 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 ensuring food stability in Pakistan. The Plan recommends activities such as 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.

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- Name of legislation

Year of enact-

ing to food

ment

Availability

33

Agriculture Produce Market Act

See for detail, Ibid. at 15.

33

1939

Accessibility

Utilisation

Hoarding and Black Market Order

1956

Food Stuffs (Control) Act

1958

Seed Act

1976

Pakistan Bait-ul-Mal Act

1991

State Bank of Pakistan Act

1956

Agriculture Development Bank Ordinance

1962

Land Reform Act-II

1977

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 stateâ&#x20AC;&#x2122;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.

34

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 consumersâ&#x20AC;&#x2122; 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.

35

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

Name of legislation

Year of en-

relating to

actment

food Availability

Accessibility

Utilisation

Stability

Fisheries and Aquatic Resources Act

1996

Consumer Affairs Authority Act

2003

Pasture Lands (Reservation and Development) Act

1983

Seed Act

2003

Forest Conservation Ordinance

2009

Food Act

1980

Consumer Affairs Authority Act

2003

Seed Act

2003

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, comparative 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 presented 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 distribution 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 universal, which shall certainly have a significant impact on India's effort to make its people more food

36

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 resources

36

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 people.

As regards market regulation to ensure food availability, all South Asian countries have undertaken various legislative measures. They have given a great emphasis on government's regulation 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 infrastructures, is crucial in ensuring food security. The legislation of all South Asian countries endeavour 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 national 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 ensure 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 de36

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 Indiaâ&#x20AC;&#x2122;s recent economic slowdown and efforts to cut its fiscal deficit. See Fan Shenggen. 2013. The road ahead for Indiaâ&#x20AC;&#x2122;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).

37

Ibid.

37

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 security 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 allocation 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 examples 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 provisioning substantive rules governing food standard as well as authorising respective administrative agencies to monitor and enforce the standards in the market. Generally, the legislation pertaining 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 anticompetitive conducts, hoarding, violations of consumers' rights, etc. should be prevented to ensure 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 unscrupulous 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 infrastructure, among others, can adversely affect sustainability in agricultural productivity thereby making the future less food secure.

38

In this regard, legislative and policy efforts can overcome the threats of climate change while protecting farmersâ&#x20AC;&#x2122; rights to plant variety, developing agricultural infrastructure, protecting environment 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 protection 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 requires 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 insecurity. 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 address 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 overcome sudden food scarcity. The Act prevents deflection of supply of food from food scarce regions to other regions of the country, authorises the government for direct supply of food in certain 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 communities 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 context 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 cooperation to overcome the threat of climate change in the food security.

39

The Nepalese Climate Change Policy, 2011

38

also broadly discusses the need to mobilise re-

sources properly in order to ensure people's access to food and livelihood. However, both policies 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 mitigating the effects of climate change and ensuring food security may include provisions for climate insurance, emergency funds transfer and early warning mechanisms. The climate insurance, 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 perspective 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 prevention and mitigation. On the other hand, pure private sector solution would make climate insurance 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 efficient 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 implementation process act as formidable check on the potential arbitrary application of food security 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)

40

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, legislation 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 emphasised 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 access. 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 acknowledge 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 system 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.

41

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 sustainability of the system.

Indeed, as pointed out by the FAO (2005), “There is a growing tendency to combat fragmentation 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 includes 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 counterparts.

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 determinant 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 members 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 Security in South Asia: Current Issues and Emerging Concerns.( Ramachandran 2006/131)Helsinki: World Institute for Development Economics Research.

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. 42

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 providing fiscal incentives for channeling private financing in this area for facilitating climate adaptation and adoption of other safety-nets to help peopleâ&#x20AC;&#x201D;particularly the poor, marginalised and vulnerable onesâ&#x20AC;&#x201D;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.

42

While 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.

43

Although there are problems with both the initiatives in terms of operational modalities and varied 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 countryâ&#x20AC;&#x2122;s commitment to ensure food security for its people and communities, particularly those who are food insecure due to deficiencies 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 commitments 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 practice 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).

43

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 â&#x20AC;&#x153;regional benchmarkâ&#x20AC;?.

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 identification 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.

44

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 Environment.

(Bala Ravi, S. 2009, Policy Brief, No. 19) Fan, Shenggen. 2013. The road ahead for Indiaâ&#x20AC;&#x2122;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-foodsecurity-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/wpcontent/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.

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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).

45

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 Institute 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 (accessed 23 June 2013).

World Food Summit .1996. See FAO, Food Security, Policy Brief, 2006, issue 2.

46

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