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Poverty and Law

Poverty is a universal phenomenon. Not one country has been able to assert to be entirely unfettered by poverty. Poverty can be regarded as the single most universal phenomenon forming an unvarying and uniform thread that transcends all boundaries and nations. The brunt of poverty on human existence can be gauged from the fact that the United Nations (‘UN’) designated 1996 as the International Year for the Eradication of Poverty and 1997-2006 as the Decade for the Eradication of Poverty, affirming that “eradicating poverty is an ethical, social, political and economic imperative of humankind.” A whole gamut of complexities is encompassed by the single word ‘poverty’.

Definition of poverty

When one talk about poverty and poor a very basic image comes to his mind, that, a person who is poor would not have enough money and resources to sustain a good life likewise, poverty is a condition in which a person is so deprived of basic necessities that he/she may not be able to survive after a period of time or might die due to hunger. This is an economic perspective. But from the legal lens we can see that poverty is more than just money and food. Measurement of poverty is a legal matter. The most commonly applied technique to assess poverty is based on incomes. The approach centres on the lack of basic necessities. The legal way stresses inadequacy compared to average living standards. Poverty is a multi-dimensional concept. Law says that it should not be measured through the pathway of means but according to the ends. In India, the initiation was done by focusing on economic mobility from which emerged the concept of income/consumption poverty line. After the development of initiatives, it was soon realized that, this definition captured a limited perspective and the premise of ‘income poverty’. So it was broadened into the tenet of ‘human poverty’. Now the word ‘poverty’ began to be used in two main connotations, in a constricted sense for purposes of measurement where it was defined as low income or consumption and as an expansive blanket word to express the complete continuum of deprivation. If one concurs with the former, then the direction of control strategies would centre on economic mobility. If one has leanings of law, then the focus would be on social mobility. This brought in its wake the necessity for development and introduction of a scheme of indicators for poverty appraisal from a new perspective. The Rural Development Ministry, in 1997 recommended conducting of survey of below poverty line families on the basis of multiple criteria. With the emergence of the concept of the ‘Human Development Index’ and ‘Human Poverty Index’, a composite measure reflecting health, education and economic attainment for the country, came to the fore.

When an individual is poor he has to go through a lot of issues such as they are deprived of basic Human Rights, they are unaware of their own rights, they are exploited by the other sections in the society, social inequalities, lack of education and opportunity. Over the period of time India as a nation realized that poverty cannot be defined by focusing on only one perspective that is 'income poverty' but it should be 'human poverty' i.e. in a broader perspective. Defining poverty has been an ongoing endeavour. The definitions have altered but slightly, in their intent, objective and outcome, although they might have changed in their manifestation. All theoreticians are unanimous in their opinion that poverty is a genuine deprivation of life’s basic necessities and incapacity to meet minimum biological, social, and cultural needs. The perception of basic necessities varies. What some societies consider as necessities, it may perhaps be regarded as extravagance or opulence in others. Within the same society, when sub-groups become used to a certain standard of living, that level of existence becomes a necessity, leading to the propensity of a measured but steady ascent in the benchmark level of what is considered as basic necessities. A broad-spectrum range of deficiencies and disadvantages of which, poverty is only one component is termed ‘deprivation’. The other constituents include social inferiority, isolation, physical weakness, vulnerability, seasonality, powerlessness and humiliation. The relativities have come to be reflected in the modern trends of poverty evaluation. The concept of poverty has been determined to be a multi-dimensional issue. The UN and its agencies approach poverty from a more integrative perspective based on human dignity. It expressed in terms of social, economic, cultural and political parameters. Its been highlighted by the Indian judiciary in Francis Coralie Mullin v. Administrator, Union Territory of Delhi1) that “the right to life includes the right to live with human dignity and all that goes along with it, namely the bare necessities of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and co-mingling with fellow human beings. Of course, the magnitude and content of the components of this right would depend upon the extent of the economic development of the country, but it must, in any view of the matter, include the right to the basic necessities of life and also the right to carry on such functions and activities as constitute the bare minimum expression of the human-self.”

Dr. Justice AR. Lakshmanan considers poverty as a multi-faceted human rights violation. The Indian

Planning Commission too has recognized the need of this broader perspective of poverty.

Harvard Law defines poverty law as the legal statutes, regulations and cases that apply particularly to the financially poor in his or her day to day life. In a common sense, the goal of poverty law is to protect the disadvantaged poor from unfair treatment by the law. Poverty law includes benefits and welfare policies of the Government. It includes Medical assistance; cash public assistance (more commonly known as Welfare); and the Supplemental Nutrition Assistance Program, Poverty law involves with administrative law, civil rights law, constitutional law, employment law, and health law. Law as to poverty deals with poverty of the people. It advocates of poverty reduction and usually operates within a nation-state context. It explores specific human rights initiatives that address particular aspects of poverty, including human rights conventions, measures to counter the tendency of intellectual property law to undermine food security, the right to food as framed in UN development documents. It may include of vision of constitutional law.

Poverty and law in India

India’s plunge into mass poverty manifested during the colonial era. It accelerated poverty throughout that phase. Dadabhai Naoroji had to write his critically resented paper as far back as 1876. In the 1930s, Pt. Jawaharlal Nehru expressed India’s state of affairs as “A servile state…her people poor beyond compare, short-lived and incapable of resisting disease and epidemic, illiteracy rampant, vast areas devoid of all sanitary or medical provision, unemployment on a prodigious scale, both among the middle classes and the masses.”

Later in his historic ‘Tryst with Destiny’ speech Pt. Nehru reminded the nation that the service of India means the ending of poverty, ignorance, disease and inequality of opportunity.

Poverty alleviation agenda

It involves several distinct essentials:

  1. It is crucial to define poverty for a particular region, which can be done only if the specific causative factors are underlined.
  2. Based on this understanding, a mode of measurement needs to be devised to identify the poor.
  3. Only when these aspects have crystallized, is it possible to design and implement intervention programmes. It is now realized that a collaborative measure of emphasis on accelerated growth and a direct interventionist-safety net procedure is the proper approach to optimize the control strategies.
  4. It needs to be ensured that the institutions executing these measures complement the policy stance. India as a welfare state is committed to the development of its people.
  5. The constitutional responsibility is reflected via legislations and development policies. During the last five decades, India’s tryst with poverty has met with chequered responses. It would, however, be incorrect to say that all poverty reduction programmes have failed.

So law has an important role in the poverty alleviation measurements.

Poverty is a human rights violation

The right to be free from poverty includes:

  1. The human right to an adequate standard of living;
  2. The human right to work and receive wages that contribute to an adequate standard of living;
  3. The human right to a healthy and safe environment;
  4. The human right to live in adequate housing;
  5. The human right to be free from hunger;
  6. The human right to safe drinking water;
  7. The human right to primary health care and medical attention in case of illness;
  8. The human right to access to basic social services;
  9. The human right to education;
  10. The human right to be free from gender or racial discrimination;
  11. The human right to participate in shaping decisions which affect oneself and one’s community.

Constitutional Goal

Poverty’ as a term has not been mentioned in the Indian Constitution. The Preamble, the Fundamental Rights and the Directive Principles of State Policy stand testimony to the welfare state model. Bharat is a welfare state. It is committed to the development of its people. There are provisions in the constitution of India for the betterment of the poor. Just a law cannot suffice. The purpose of law has to be implemented with due respect and responsibility.

The constitutional responsibility is reflected via two modes:

  1. Legislations reflecting the broader and comprehensive perspective, and
  2. Development policies and plans, showcasing the tailor-made option.

Role of judiciary

The judiciary has kept an intense scrutiny and ensured that this constitutional mandate is properly enforced. Building upon Article 21, the judiciary has adopted an expansive interpretation bringing within its ambit almost all facets of poverty – direct or indirect.

  1. It has been stated in Basheshar Nath v. The Commissioner of Income Tax Delhi2) that: “The easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation…Any person…can challenge the deprivation as offending the right to life conferred by Art 21.”
  2. It has been emphasized in Olga Tellis v. Bombay Municipal Corporation3) that: “The country had so far not found it feasible to incorporate the right to livelihood as a fundamental right in the Constitution because it had so far not attained the capacity to guarantee it, and not because it considered it any the less fundamental to life. Advisedly, therefore, it has been placed in the chapter on Directive Principles under Art. 41 which enjoins upon the State to make effective provision for securing the same “within the limits of its economic capacity and development”.

Legislations

  1. The most prominent of pro-poor legislations is the Legal Services Authorities Act, 1987. It gives statutory effect to the provisions of Art. 39A of the Constitution of India. It aims at providing free and comprehensive legal services to the indigent sections of the population. Almost all legislations operating in any field whatsoever, whether it be labour laws, civil law, criminal law are bound to have certain provisions dealing with indigent issues.
  2. Several legal provisions dealing with issues of caste status, land reforms, child labour and gender equality are in existence.
  3. The National Rural Employment Guarantee Act, 2005 was passed providing specific guaranteed wage employment every year to households whose adult members volunteer to do unskilled manual work.
  4. The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 was passed aimed at ensuring security of tenure and access to minor forest produce and other related rights for tribals and other traditional forest dwellers. The key intent of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 has been completely undermined due to apathy or intentional non-implementation by the governance structures.
  5. Legislations with direct emphasis on poverty are on the anvil; the foremost being, the National Food Security legislation, providing for subsidized food-grains to the poor. The legislative approach suffers from the inherent pitfalls of democracy. Political lobbying has an immense effect on the legislations being passed and the form that they take. The proposed National Food Security Act has already been diluted in the face of political pressure. Furthermore, delinking food grains security from nutrition security greatly reduces the intent and efficacy of the National Food Security Act. Critics are of the opinion that even the proposed allocation of foodgrains and the coverage of this legislative proposal are not sufficient.
  6. The Street Vendors (Protection of Livelihood and Regulation of Street Vending) Bill, 2009 where the Supreme Court intervened and directed the government to pass the Act by June 2011. A change of powers of the ruling government sometimes shelves certain legislations entirely.

Executive duties

The legislative intent is to be transcended into executive implementation. For instance,

  1. Post the economic crisis of the early nineties, the mode of redressal of poverty mitigation was reconceptualised. Though none of the phases of the development agenda has been fully withdrawn, the emphasis on any one particular strategy to be gradually reduced and an integrated. The planners are attempting both macro and microeconomic adjustments.
  2. The Public Distribution System which evolved in the wake of food grain shortages in the 1960s was a blend of producer-price support and consumer subsidy and was promoted as a safety net facility; it was later streamlined and a targeted Public Distribution System was introduced in 1997 under which families below the poverty line were specifically addressed.
  3. Policies eliminating child labour and enhancing employment opportunities for women and disadvantaged sections of the population have also been given high priority.
  4. Increasing influences of globalization, privatization and liberalization has led the State to lose some of its pre-eminence as a developmental agency and opened the gates for other actors viz. global multilateral agencies, international and national NGOs, and private companies.

Summary

The Development Programmes suffer from numerous defects including sub-critical investments, unviable projects, lack of technological and institutional capabilities in designing and executing projects, poor targeting of beneficiaries etc. Political leanings and interest groups play a strong role in the materialization of strategies and implementation of development policies. The strategies of development policies change in light of possible manoeuvring with succession and changes in polity. Besides, the programmes usually are beset with problems like corruption,46 improper direction, lack of sectoral integration and undue emphasis on time-bound target achievement. In fact, a relatively recent initiative on the part of the Planning Commission to curtail this growing trend of unaccountability too died a political death. Highlighting this, the 10th Five Year Plan states that weak governance, manifesting itself in poor service delivery, excessive regulation and uncoordinated and wasteful public expenditure is one of the key factors hindering growth and development.

The judiciary had to take steps to ensure that the executive arm does its job properly and ensures sufficient facilities to the indigent.

  1. In People’s Union for Civil Liberties v. Union of India4), the fact that starvation deaths had occurred in Rajasthan despite excess grain being kept aside for famine was agitated. Various schemes for food distribution throughout India were also non-functional. The Supreme Court, noting the right to life, stated “would the very existence of life of those families which are below poverty line not come under danger for want of appropriate schemes and implementation”. The Court found failure by the government to implement and resource various food schemes and ordered specific measures to be effected.
  2. The bureaucracy still maintains the upper hand in expenditure disbursements and the weakness in the democratic process provides them room to manipulate the welfare schemes and recipient beneficiaries.There have been instances where the State itself denied to casual labourers the mandatory minimum pay. The Supreme Court intervened and stated that “such denial amounts to exploitation of labour. The Government cannot take advantage of its dominant position, and compel any worker to work even as a casual labourer on starving wages. It may be that the casual labourer has agreed to work on such low wages. That he has done because he has no other choice. It is poverty that has driven him to that state. The Government should be a model employer.”
  3. Poverty alleviation efforts also suffer from weak civil society action. Though the advent of the Right to Information Act, 2005 has eased the situation somewhat by empowering the people, the state of affairs is still a far cry from perfect.
    Delhi Development Horticulture Employees’ Union v. Delhi Administration: In this case the petitioners were employed under a limited period wage employment scheme for those below the poverty line. Afterwards, on the basis of the said employment, they claimed a right to regularization. The Court held that “this could not be allowed as it would frustrate the scheme itself. They will do more harm than good by depriving the many of the little income that they may get to keep them from starvation. They would also force the State to wind up the existing schemes and forbid them from introducing the new ones, for want of resources. This is not to say that the problems of the unemployed deserve no consideration or sympathy. This is only to emphasize that even among the unemployed a distinction exists between those who live below and above the poverty line, those in need of partial and those in need of full employment, the educated and uneducated, the rural and urban unemployed etc.”
  4. In State of Gujarat v. Vora Saiyedbhai Kadharbhai with Somsinh Takhatsinh Rana, the State Legislature in order to save the poverty stricken debtors from the clutches of non-institutional creditors, under a debt relief legislation relieved them of their debts to the extent found necessary and had their properties given as security for their debts returned from the creditors so that they could eke out their livelihood. The creditors approached the court contending that this was an unreasonable restriction on them, violative of Art. 19(1)(g) of the Constitution, which granted them a right to practise their profession. The Supreme Court held that “even if social legislations such as the one enacted are to make a few creditors victims of such legislation in one way or the other, the same cannot be regarded as an unreasonable restriction which cannot be imposed in respect of the rights exercisable by the citizens under Art. 19(1)(g).”
  5. A key development in this regard has been where the judiciary adopted an expansive interpretation of Art. 21, bringing within its ambit almost all facets of poverty. The judiciary has rendered judgments focusing on poverty in its various facets, such as the right to food, Chameli Singh v. State of U.P5), child labour, 58 beggars’ People’s Union for Civil Liberties v. Union of India, Writ Petition.6)

Another instance may be given that after observing the success of guaranteeing rural wage labour under poverty alleviation schemes, the National Commission to Review the Working of the Constitution proposed a constitutional obligation on the State to provide to the citizens ‘Rural Wage Labour’ as a Fundamental Right and proposed the introduction of a new Art. 21B for this purpose.

Conclusion

Poverty and law are closely linked together. Poor people being the most deprived of their needs and education are mostly the part of a vicious cycle of crime and legal proceedings. Many a times it is seen that people just for their own greed makes the poor a pawn. Since the poor don't have enough resources and money they agree or sometimes they unintentionally do something which makes them fall into a legal trouble. Since they have committed a crime they are convicted and sent to jail. To protect the interest of the poor section of the society the state decided to make provisions for them with respect to free legal aid. But mostly lawyers or adjudicators don't want to serve people freely. So one of the requirements for the empowerment of the poor is a stringent legal system which does not only enacts law but also makes them implemented. Since poverty like pandemic has no boundary is a universal issue so the international organizations are also contributing for the upliftment of the poor and making provisions such as human rights for the whole world. Likewise government of India should also make certain provisions which can help for the betterment of the poor people.

About the Author

© C.R Nanda Academy is an initiative by Adv. Chittaranjan Nanda to spread legal awareness among Indian Citizens.

1)
AIR 1981 SC 746
2)
1959 (1) SCR Supp 528
3)
AIR 1986 SC 180
4)
Writ Petition (Civil) No. 196 of 2001 (SC Interim Order, May 2, 2003)
5)
AIR 1996 SC 1051
6)
(Civil) No. 196 of 2001, M.C. Mehta v. State of Tamil Nadu, (1996) 6 SCC 756


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