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Petitioner: Muhammad Ahmed Pansota others VS Respondent: Federation of Pakistan etc
Court Name: Lahore High Court Judge(s): Jawad Hassan Title: Muhammad Ahmed Pansota others vs Federation of Pakistan etc Case No.: Writ Petition No.840 of 2019 Date of Judgment:2019-12-24 Reported As: PLD 2020 Lahore 229, 2019 LHC 4124 Result: N/A
Judgment JAWAD HASSAN, J. Through the instant petition filed under Article 199 of the Constitution of the Islami c Republic of Pakistan, 1973 (the " Constitution "), the Petitioners have sought directions to the Respondents, inter alia to: (a) legislate on the preservation, conservation, management of food in Pakistan; (b) take positive steps towards preservation, conservation, management of food in Pakistan;; (c) carry out evaluation and assessment regarding the condition of food wastage and management, (d) place on record latest research and reports conducted, drafted and formulated on issue of food security and wastage; (e) place on record all actions taken to create awareness about food preservation and prevention of its wastage in last five years; (f) fulfill their fiduciary responsibilities under the Doctrine of Public Trust and ensure preservation, conservation and proper management of food; (g) declare that conservation and preventi on of food wastage is the part of fundamental right to food and is the right of every person wherever they may be; (h) appoint Commissions to investigate matters relating to circumstances of the case;. (i) demand accountability of all food waste; (j) tax waste in a manner that discourages wastage and discarding of surplus food; and (k) provide for a mechanism of "continuous mandamus" or "rolling review" so as to ensure compliance of orders 2. At the outset, Mr. Sarfraz Hussain, Advocate filed an application for his impleadment as the Petitioner , who is a probono publico and a "Public Spirited Advocate". Further , Barrister Muhammad Haroon Mumtaz, ASC also filed an application for impleadment of Fahad Bin Hamid, Hafsa Amad and Mehak Adil in the array of the Petitioners in this petition, who are advocates and runnin g the Lahore Chapter of the "Robin Hood Army" a non-governmental initiative run by volunteers and aimed at collection of surplus food and its re-distribution among the needy in
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Lahore. The learned counsel for the Petitioner No.1 had no objection on acceptance of these applications, and therefore, both applications were allowed and the aforesaid applicants were arrayed as the Petitioners No.2 to 5. 3. It may also be noted that learned counsel for the Petitioner No.1 requested to implead certain departments including Punjab Food Department, Government of Punjab, Punjab Food Authority through its Director General, Indus Consortium for Humanitarian, Environmental & Development Initiative and Pakistan Agricultural Research Council through its Chairman as the Respondents in this petition, and his request was allowed. The Petitioner No.1, therefore, filed amended petition by including the names of these Respondents; and notices were issued to the newly added Respondents to file report and parawise comments. I. PETITIONERS' ARGUMENTS 4. The Petitioner No.1 in person alongwith Ms. Eamaan Noor Bandial Advocate submits that this writ petition has been filed seeking directions to the Respondents to legislate on preservation, conservation and management of food in Pakistan. She submits for enforcement and protection of fundamental rights guaranteed under Article 4 (Right of individual to be dealt in accordance with law), Article 9 (Right of liberty) and Article 14 (Right of dignity). The counsel for the Petitioner No.1 objected to two issues: a) high hunger levels in Pakistan and b) wastage of edible food on the grounds of: i) contradiction with the Islamic way of life under of Article 31 of the Constitution and ii) violation of the intrinsic right to food under Articles 38(d), 4, 9, 14 of the Constitution and the signed International treaties. Eamaan Noor Bandial, Advocate relied on research and studies conduc ted by various international and regional organizations to stress upon the fact that there are high hunger levels in Pakistan while edible food is discarded/wasted due to lack of efficient management. She submitted that right to food is in-fact a matter of public importance. Relied on HUMAN RIGHTS CASE NO.18877 OF 2018 (PLD 2019 SC 645). She further added that this Honourable Court possesses the authority to direct the Punjab Food Authority to consider developing a mechanism that redirects surplus /excess/leftover food to the deprived or underprivileged thus enabling us to align our ways to the Islamic way of life, fulfills constitutional promises, fight hunger in Pakistan and work towards the greater good of the public. Moreover , the counsel stressed upon salience of Right to Food and Food Wastage in Islam by arguing that Article 31 of the Constitution under the Chapter- Principles of Policy requires Muslims to observe Islamic principles and moral standards derived from the Holy Quran and Sunnah. In our religion utmost importance is given to one?s right to food, wastage thereof is forbidden and extrav agance is discouraged in Islam. Relied on " ABDUL MAJEED versus ADDITIONAL DISTRICT JUDGE, F AISALABAD" ( PLD 2012 Lahore 445 ). 5. Barrister Muhammad Ahmad Pansota, Advocate submitted that this Honourable Court may direct the Punjab Food Authority to align its ways, control mechanisms and guidelines with the above mentioned Islamic principles. Further submitted that the right to life includes the right to food by placing reliance on SUO MOTU CASE NO.13 OF 2009 (PLD 2011 SC 619) and "AL-RAHAM TRAVELS AND TOURS (PVT .) LTD. Versus MINISTR Y OF RELIGIOUS AFFAIRS, HAJJ, ZAKA T AND USHR" (2011 SCMR 1621 ). Further added that under international law the right to food is recognized as an intrinsic human right. The Universal Declaration of Human Rights of 1948 first recognised the right to food as a human right, it was then incorporated in the Intern ational Covenant on Economic, Social and Cultural Rights, 1966 (Article 1 1). 6. Barrister Muhammad Ahmad Pansota and Ms. Emaan Noor Bandial Advocates further added that according to Global Hunger Index (GHI), Pakistan ranks 106th out of 119 qualifying countries with a score of 32.6 out of 100. They state that although there are certain food laws in Pakistan i.e. Punjab Pure Food Ordinance, 1960 (the "Ordinance ") and the Punjab Food Authority Act, 2011 (the "Act") regarding sale and production of food but they do not address the issue in hand i.e. wastage of food, its conversion, utilization and recycling. Eamaan Noor Bandial, Advocate further draws the attention of the Court that 40 percent of the cooked food is wasted in Pakistan and even more food is wasted than cons umed in the holy month of Ramadan, on the ceremonies of marriage as well as in restaurants etc which is also contrary to teachings of Islam and strictly prohibited. Both the counsels also argued that the wastage of food also caus es a host of social and environmental implications including the shortage of food which as a result occurs food prices to go up to alarming levels leading to inflation in the country . Therefore, by placing proper regulations in place this food can be given to the needy and those who don't have food at all instead of wasting it. Thus necessary measures must be taken in order to overcom e food wastage in the country .
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They brought into the notice of the Court the "National Food Policy , 2017" wherein the government of Pakistan had expressed its strong commitment for the realization of Sustainable Development Goals (SDGs) as a national agenda, both at Federal and Provincial levels but despite formulation of aforesaid Policy , the Respondents have failed to implement the same for the benefit of the Country . They next argued that the Respondents are not adhering to their own Food Policies which is in violation of case law reported in "BAHADUR KHAN AND OTHERS Versus FEDERA TION OF PAKIST AN THROUGH SECRET ARY M/O FINANCE, ISLAMABAD AND OTHERS" (2017 SCMR 2066 ) opining inter alia the importance attached to government adhering to sovereign commitments made by it, whether in form of statutory orders or notifications issued by it or in the shape of policies announced by it. Both the counsels referred to a recent judgment of this Court "SHEIKH ASIM FAROOQ Versus FEDERA TION OF PAKIST AN etc" (PLD 2019 Lahore 664). They argued that it is the responsibility of the State under Article 38 of the Constitution to take legislative action and to enforce fundamental rights guaranteed under Article 4, 9 and 14 of the Constitution and under international law the right to food is a human right and is a binding obligation well- established under international law. The Universal Declaration of Human Rights of 1948 first recognized the right to food as a human right and it was then incorporated in the International Covenant on Economic, Social and Cultural Rights (Article 11) adopted in 1966 and ratified by 156 states, including Pakistan in 2008. Lastly , both the counsels contend that the Respondents department should take necessary steps by taking legislative measures in order to reduce food wastage all over the country . 7. Learned counsel for the Petitioners No.3 to 5 also adopted the arguments advan ced by M/s Muhammad Ahmad Pansota and Eamaan Noor Bandial, Advocates. 8. The Petitioner No.4/Hafsa Ahmad Advocate though supported the arguments, extended by learned counsels, but added that right to food has been recognized internationally through various laws in many countries. She further stated that right to food and its being wastage has been protected by the provisions of the Constitution. She agreed with the draft Regulations which were made by Capt.(R) Usman, Director General, PFA after conducting various meetings and provisions with regard to wastage of food have been incorporated in that Regulations. She also relied on laws made by dif ferent countries regarding preservation, conservation, management and wastage of food. II. RESPONDENTS ARGUMENTS 9. After initial submissions of the Petitioners, notices were issued to the Respondents to file report and parawise comments by adverting to the assertions made by the Petitioners in the light of judgments of the superior Courts. 10. Vide order dated 13.02.2019, Secretary Food Department, Government of Punjab and Director General, Punjab Food Authority were directed to constitute a committee to prepare draft under Section 57 of the Punjab Food Authority Act, 2011 after consultation and discussion with experts, social workers, legal fraternity , academics and other stakeholders. Hence, as per directions of this Court, meetings were convened by Mr. Shoukat Ali, Secretary Food and Capt.(R) Muhammad Usman, D.G. PFA on 19.02.2019, 23.02. 2019, 25.02.2019 and finally the last meeting was held on 30.10.2019 in which the Committee and Sub-Committee finalized the draft after receiving inputs from all the stakeholders including Petitioners and their counsel. On 29.10.2019, Assistant Director (Legal), PFA appeared and stated that Secretar y Food Department has constituted the committee and sub-committee including the Petitioners and other stakeholders to finalize the Draft Regulations. Under Section 57 of the Punjab Food Authority Act, 2011, the Punjab Food Authority has made the "Draft of Punjab Food Authority (Disposal of Excess Food), Regulation, 2019. The Committee and Sub-Committee finalized the Draft Regulations which were filed in the Court. 11. Arguments heard. Record Perused. III. CONSTITUTIONAL MOOT POINTS 12. In the instant public interest petition, the Petitioners have sought directions to the relevant ministries, departments and other authorities of the Provincial or Federal Government under Article 199 of the Constitution to take positive steps towards preservation, conservation and management of waste food in Punjab. The Respondents departments and authorities have presented their oral and written arguments; in which they have undoubtedly admitted the importance and need to manage preserve and conserve food in Punjab and Pakistan; and have highlighted their performance in this regard.
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13. Following constitutional moot points arise out of the instant petition: a. Whether directions can be issued to the relevant ministries, departments and other authorities of the provincial or federal government under Article 199 of the Constitution to implement the mandatory provisions of law? If yes, whether the doctrine of continuing mandamus is applicable in the instant matter? b. Whether right to food and conservation, prevention and management of food wastage are Fundamental Rights under the Constitution? c. Whether the Constitution makes it mandatory for laws to be in compliance with the Holy Quran and Sunnah? d. Whether the International law and treaties which recognize right to food as an intrinsic human right are applicable in Pakistan? e. What steps have been taken by the Punjab Food Authority for conservation, prevention and management of food wastage? IV. NATURE OF LITIGA TION AND LOCUS ST ANDI OF PETITIONERS 14. Before going further into the merits of this writ petition, I would like to throw some light on the nature of this writ petition and locus standi of Petitioners to file this petition. Instant writ petition is in the nature of public interest litigation. Public interest litigation is a powerful tool for individuals and groups to combat illegalities, injustice and social ills, which promote and protect the larger public interest in case of violation of any fundamental rights. It is an innovative strategy which has been evolved over the years to provide easy access to justice to the weaker/marginalized sections of humanity . It is a powerful tool in the hands of public, spirited individuals and social action groups used for combating exploitation and injustice and for securing for the underprivileged segments of society their social and economic entitl ements especially in matters of public importance. A matter of public importance is interpreted by august Supreme Court in Human Righ ts case No. 18877 of 2018 reported at PLD 2019 SC 645 in the following terms: "6. ...after considering the dictionary meaning of "public importance" and case-law regarding this aspect, that the term refers to a "question, which affects and has its repercussions on the public at large and it also includes a purpose and aim, in which the general interest of the community , particularly interest of individuals is directly or vitally concerned..." 15. Regarding the Court' s power to adjudicate upon matters of public importance, the Supreme Court has held that: "4...It is also settled and I am in no manner of doubt that the powers of this Court under Article 184(3) supra are akin to the powers of the High Courts under Article 199 supra with the addition that such powers can be exercised by this Court of its own motion (suo motu), if information of the nature discussed above is placed before it showing that a question of public importance involving enforcement of Fundamental Rights conferred by Chapter I of Part II of the Constitution is involved..." 16. So, "public interest litigation" is, therefore, in the interest of the public at large. It is a legal action or proceeding initiated for the protection or enforcement of the rights of public at large. It is totally different from traditional litigation which is essentially of an adversary character , where there is a dispute between two litigating parties, one making a claim or seeking relief against the other and that other opposing such claim or resisting such relief. Public interest litigation is brought before the court not for the purpose of enforcing the rights of one individual against another , as happens in ordinary litigation, but it is intended to promote and vindicate the public interest. It demands that violation of constitutional or legal rights of a large number of people who are poor, ignorant or in a socially or economically disadvantaged position should not go unnoticed and un-redressed. It is an effort to provide legal representation to groups and interests that have been unrepresented or under-represented in the legal process. These include not only the poor and the disadvantaged but ordinary citizens. So, as long as the public interest prayed for is bona fide and not based on any vested interests, the principles of locus standi/aggrieved person are to be interpreted liberally by the Courts because superior courts are bound to protect the Fundamental Rights of citizens in exercise of jurisdiction conferred via Art.199 or Art.184 (3) of the Constit ution. So this writ petition is very much maintainable and petitioners have locus standi to file the instant writ petition. V. DOCTRINE OF CONTINUING MANDAMUS
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17. Continuing Mandamus is a writ of mandamus issued to an authority by the High Court under Article 199 of the Constitution in general public interest asking the officer of the authority to perform its task expeditiously for an unstipulated period of time to prevent miscarriages of justice. The Doctrine of Continuing Mandamus, at times also referred to as structural interdict or structural injunction, in other words, is a relief given by a Court of law through a series of ongoing orders over a long period of time, directing an authority to do its duty or fulfill an obligation in general public interest, as and when a need arises over the duration a case lies with the Court, with the Court choosing not to dispose off the case in finality . This happens in a situation which cannot be remedied instantaneously but requires a solution over a long time, at times going on for years. With this procedural innovation of the writ of mandamus or a mandatory order , the Court monitors compliance of its orders, seeking periodic reports from authorities on the progress in implementing them. Relian ce is placed on "MALL ROAD TRADERS ASSOCIA TION V ersus The DEPUTY COMMISSIONER, LAHORE" ( 2019 CLC 744 ). 18. Moreover , in the article published in 10 NUJS L. REV (2017), 'CONTINUING MANDAMUS' - A JUDICIAL INNOV ATION TO BRIDGE THE RIGHT -REMEDY GAP , the right to food with regard to continuing mandamus in Indian context was discussed at page 34 in the following words: "The Supreme Court in PUCL v. Union of India (2007 (12) SCC 135) had undertaken this herculean task of, after recognising right to food as a part of Article 21, to oversee its effective realisation . Standing out from most similar struggles, the device of continuing mandamus used in the PUCL case, coupled with cooperation from civil society , led to tangible success of the drawn-out litigation. In 2001, the PIL filed by PUCL brought to the fore the issue of starvation death in various parts of the country while food stocks reached unprecedented levels. The massive litigation has been expanded to cover a wide range of related issues including implementation of schemes, urban destitution, the right to work, starvation deaths, maternity entitlements and even broader issues of transparency and accountability . The case has been called the most spect acular case of a Court protecting the right to food?. Active litigation saw the right to food struggling take on the shape of a massive national movement that remains an active initiative. VI. RIGHT T O FOOD AS A FUNDAMENT AL RIGHT IN P AKIST AN WITHOUT ITS BEING W ASTAGE. 19. The right to life of a citizen is protecte d under Articles 4, 9 and 14 in Chapter I of the Constitution as produced below: 4. Right of individuals to be dealt with in accordance with law , etc:- (1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be and of every other person for the time being within Pakistan. (2) In particular - (a) no action detrimental to the life, liberty , body , reputation or property of any person shall be taken except in accordance with law; 9. Security of person:- No person shall be deprived of life or liberty save in accordance with law . 14. Inviolability of dignity of man, etc:-- (1) The dignity of man and, subject to law , the privacy of home, shall be inviolable.... 20. Under Article 38 (d) of the Constitution contained in the Principles of Policy , the right to food is protected. 38 Promotion of social and economic well-being of the people.-- The State shall-- (a) secure the well-being of the people, irrespective of sex, caste, creed or race, by raising their standard of living, by preventing the concentration of wealth and means of production and distributi on in the hands of a few to the detriment of general interest and by ensuring equitable adjustment of rights betw een employers and employees, and landlords and tenants; ... (d) provide basic necessities of life, such as food, clothing, housing, education and medical relief, for all such citizens, irrespective of sex, caste, creed or race, as are permanently or temporari ly unable to earn their livelihood on account of infirmity , sickness or unemployment; 21. The right to life can only be enforced if certain ingredients are present, food being the first and foremost. Pakistan' s Courts have repeatedly held the right to food a necessity of life and thus an extension of the right to life.
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Its interpretation has been stretched to the extent of it being labelled an economic right. Such fundamental, economic, constitutional rights must be interpreted in light of the remaining Article s contained in the Constitution. Our Honourable courts in the following judgments have interpreted the right to life to include the right to food, which was the subject matter of the petition. August Supreme Court in its Suo Moto Case no. 13 of 2009 reported at PLD 201 1 SC 619 has held that: '"22 ... right to life...implies the right to food, water , decent environment, education, medical care and shelter ..." 22. Furthermore, the Supreme Court in "Messrs Al-Raham Travels and Tours (Pvt.) Ltd" case reported at 2011 SCMR 1621 has held that: "31....a man cannot think for individual or collective development when he cannot meet the basic necessities life such as minimum food, clothing and housing. The right to those basic necessities of life are basically and fundamentally economic rights..." 23. Providing its citizens with food, especially those who do not have access to it and/or cannot afford it is a primary obligation of the State, violation of which will not just breach the right to food but also the right to life, security and dignity . It was held by august court in Miss Benazir Bhutto case reported at PLD 1988 SC 416 that: "...The intention of the framers of the Constitution is to implement the principles of social and economic justice enshrined in the Principles of Policy within the framework of Fundamental Rights. Chapters I and II of Part II of the Constitution which incorporate Fundamen tal Rights and directive principles of State policy , respectively occupy a place of pride in the scheme of the Constitution, and these are the conscience of the Constitution, as they constitute the main thrust of the commitment to socio-economic justice..." 24. Likewise, Human Rights Case No. 17599 of 2018 reported at 2019 SCMR 247 in a matter regarding the alarmingly high population growth rate in the country , the august Supreme Court has held that: "3. ...Fortified with the above cited paragraph, we are inclined to conclude that fundamental rights such as the right to free speech or information are of no use to those struggling with malnutrition, hunger and starvation. Economic prosperity is thus a sine quo non for the implementation of all fundamental rights, the paramount right being that of life..." 14. ...As mentioned in the beginning of this opinion, it is undeniable that the right to life and several other rights are meaningless if owing to overpopulation, people are deprived of basic amenities such as food , water etc..." 25. Moreover , the Indian Supreme Court has also recognized the state' s duty to enforce the right to food as a constitutional right in its judgment of Swaraj Abhiyan v. Union of India case reported at (2016) 7 Supreme Court Cases 498 in following words: '...There is undoubtedly a distinction between a statutory obligation and a constitutional obligation but there can be no doubt that the right to food is actually a constitutional right and not merely a statutory right. (See for example: Shantistar Builders v. Narayan Khimalal Totame [Shantistar Builders v. Narayan Khimalal Totame, (1990) 1 SCC 520] .) In any event, even if the right to food is a statutory right, it would be the obligatio n of the State to make all possible efforts and some more to ensure that to the extent possible, adequate foodgrains are available to all and particularly to those in drought-affected areas. There can hardly be any dispute on this.…
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