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Published : October 17, 2017 | Author : Shayesta Nazir
Category : Miscellaneous | Total Views : 270 | Unrated

Shayesta Nazir
I have done B.A.LLB (Hons) and LLM (specialization in criminal laws)besides masters in English. I love reading, writing and blogging. I'm fond of poetry too. I have interest in Litigation, Research and Legal Journalism. I love to write on themes of law, politics, humanity, love and peace. I blog at shayestaanazir.blogspot.com and kashurlawhorizons.blogspot.in hijabifeministsays.wordpress.com.

Blues of Hunger and Malnutrition: The Other Side to RTE and Human Rights

Human rights, as the name suggests, takes within its fold everything that goes with upkeep of basic inalienable rights guaranteed to human beings. From life to property, health to education, basic amenities to clean environment, everything goes along when we add things to contours of human rights by implication. The doctrine of human rights has been highly influential within international law, global and regional institutions. Actions by states and non-governmental organizations form a basis of public policy worldwide. The idea of human rights suggests that "if the public discourse of peacetime global society can be said to have a common moral language, it is that of human rights." The strong claims made by the doctrine of human rights continue to provoke considerable scepticism and debates about the content, nature and justifications of human rights to this day. The precise meaning of the term right is controversial and is the subject of continued philosophical debate; while there is consensus that human rights encompasses a wide variety of rights such as the right to a fair trial, protection against enslavement, prohibition of genocide, free speech, or a right to education, there is disagreement about which of these particular rights should be included within the general framework of human rights; some thinkers suggest that human rights should be a minimum requirement to avoid the worst-case abuses, while others see it as a higher standard.

Human rights are moral principles or norms, which describe certain standards of human behaviour, and are regularly protected as legal rights in municipal and international law. They are commonly understood as inalienable fundamental rights "to which a person is inherently entitled simply because she or he is a human being," and which are "inherent in all human beings"regardless of their nation, location, language, religion, ethnic origin or any other status. They are applicable everywhere and at every time in the sense of being universal, and they are egalitarian in the sense of being the same for everyone.

‘Right to education’, as mentioned above, can’t be denied as a human right, a basic right which can’t be denied to anyone given the way we talk about right to life but ‘right to life’ in a ‘dignified’ manner – which means right to life without assurance of dignity would mean a mere animal existence and education and dignity go hand in hand. In Francis Coralie v Union Territory of Delhi Supreme Court said that ‘the right to live is not restricted to mere animal existence. It means something more than just physical survival. The right to ‘live’ is not confined to the protection of any faculty or limb through which life is enjoyed or the soul communicates with the outside world but it also 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 ourselves in diverse forms, freely moving about and mixing and commingling with fellow human being.’ Which means for a dignified life education is must.

Nelson Mandela says, ‘Education is the great engine of personal development. It is through education that the daughter of a peasant can become a doctor, that the son of a mineworker can become head of the mine, that the child of a farm worker can become president of a great nation. It is what we make out of what we have, not what we are given, that separates one person from another.’

I agree with great Nelson Mandela when he says it’s ‘education’ that distinguishes us from others but I respectfully tend to disagree with what he says in last line quoted above that ‘It is what we make out of what we have, not what we are given, that separates one person from another’, because thinking that way we perhaps would have no words for those empty, hungry bellies, who don’t get to eat proper anything to make out anything out of that. Spare a thought for millions of undernourished children out there, who unlike you and I, don’t get a single mouthful a day. What can we expect of them to make anything of what they have when they have nothing but empty stomachs and hungry bellies, parched lips and drowning eyes? Does sermon on implementation of Right to Education Act, 2009 serve any purpose when we know we can’t feed empty bellies standard or substandard free education with their protruding ribs evident from their skeletal bodies and do we care to think about it before crying hard on education rhetoric? Right to education is now a guaranteed ‘fundamental right’, recognised both on international and national plane, no doubt about that, but if we want those unlucky, underprivileged kids out there to benefit out of this tax free compassionate governmental policy, we should do it rather gracefully. What do we expect an unhealthy child, a bunch full of bones, suffering from malnutrition doing with this free governmental mercy of education? A sound mind will benefit from free education not an undernourished one as we have been hearing since our childhood that sound mind needs a sound body to develop and when there is not a body but a skeleton what good it would do getting that free education?

We may not agree with Karl Marx when he laid down what we can term as “Marxist Approach’ to human rights, where he said that in capitalist societies human rights can’t exist and that we can only think of human rights coming into being in classless society, where there is the public ownership of the means of production. But we can’t agree more with Marx if we mould his saying a bit by saying that we have nothing but empty lecturing on human rights in a society and a nation which capitalises even ‘human rights’ and makes it a domain of few elites and privileged lot. Let me explain how...don’t you think that when we talk of substantive human rights like ‘right to life’ and all invaluable rights that come along like ‘right to education’, ‘protection from torture’, ‘prohibition of genocide’, ‘protection from trafficking’, from handcuffing and lots more, we talk of these human rights to be available to healthy bodies, living souls, living minds, healthy flesh and bones? This means we are talking privileged few like you and I, who enjoy already a right of having a healthy mind and a healthy body because how do we justify ‘right to education’, ‘protection from torture’, handcuffing etc for those who don’t have a body in that sense which could be protected from torture and other things? I mean what feelings for a skeleton getting educated or denied education or getting tortured or saved from torture? So we better look first at basic human rights of balanced diet, nutrition, healthcare and sanitation as they form essential core of ‘right to life’ because if they fail every other human right will fail along.

So I seriously believe that before speaking high of ‘human rights’ and ‘right to education’ and things alike, we must spare a thought for where we have failed. I think we feed rhetoric only until we don’t understand what is wrong on ground and why Right to Education Act, 2009, despite being an honest measure failed drastically when it came to implementation on ground. We hold seminars talking of failures of RTE Act, 2009 or how we can work on its loopholes but we shy away from confronting the real ghost behind it, the ghost of its nemesis – the ghost of hunger and malnutrition. We as a country consider it awkward to speak and discuss on sorry state of affairs in matters of poverty and undernutrition reflected in World Bank Reports as we rather go crazy over ‘Shinning India’ slogans and our race in nuclear arms and defence matters and our pride as a developing nation with an improving economy to boast of which is not bad to be proud of but provided we work on basic things we ignore. Wars can wait but hungry stomachs can’t. Why not think of spending extra budget on food, healthcare, Medicare and sanitation? Why not face problem of poverty head-on? In my paper I will be looking at all these aspects to come to certain conclusions in this regard.

Human Rights: A Brief History

The history of human rights is as old as mankind itself. The history of human rights can be traced to past documents, particularly Constitution of Medina (622), Al-Risalah al-Huquq (659-713), Magna Carta (1215), the Twelve Articles of Memmingen (1525), the English Bill of Rights (1689), the French Declaration of the Rights of Man and of the Citizen (1789), and the Bill of Rights in the United States Constitution (1791).

The modern sense of human rights can be traced to Renaissance Europe and the Protestant Reformation, alongside the disappearance of the feudal authoritarianism and religious conservativism that dominated the Middle Ages. One theory is that human rights were developed during the early Modern period, alongside the European secularization of Judeo-Christian ethics. The most commonly held view is that the concept of human rights evolved in the West, and that while earlier cultures had important ethical concepts, they generally lacked a concept of human rights. For example, McIntyre argues there is no word for ‘right’ in any language before 1400. Medieval charters of liberty such as the English Magna Carta were not charters of human rights, rather they were the foundation and constituted a form of limited political and legal agreement to address specific political circumstances, in the case of Magna Carta later being recognized in the course of early modern debates about rights.

Many of the basic ideas that animated the human rights movement developed in the aftermath of the Second World War and the atrocities of The Holocaust, culminating in the adoption of the Universal Declaration of Human Rights in Paris by the United Nations General Assembly in 1948. Ancient peoples did not have the same modern-day conception of universal human rights.

Starke while talking on ‘Human Rights and Fundamental Freedoms’ says that there are many principal instruments to guarantee human rights standards like The United Nations Charter, The Paris Peace Treaties of 1946 with Italy Rumania, Bulgaria, Hungary and Finland, The Universal Declaration of Human Rights, adopted by the United Nations General Assembly in December 1948, The European Convention for the Protection of Human Rights and Fundamental Freedoms signed by the member states of the Council of Europe at Rome, 4 November 1950 but he says that for a long time, the formulation and due implementation of binding general rules of international law for the protection of human rights and fundamental freedoms by adequate machinery for their enforcement have remained more a promise than achievement.However he further says that one material achievement is the general recognition today that a state, qua the protection of the human rights of its subjects, does not possess in this regard an absolute sphere of reserved jurisdiction into which international law or outside diplomacy may not penetrate.

Overall he is sceptical about their implementation when he says that it is true that in Europe there have been established an international administrative body and an international court for the purpose of protecting human rights, namely the European Commission of Human Rights and the European Court of Human Rights, but these two organs operate under jurisdictional and procedural restrictions, and in respect to that limited number of states only which have accepted their competence. One can agree with Starke when he says that ‘there has been limited concrete progress in the direction of establishing effective international machinery to protect individual rights beyond the point of proclaiming conceptions, attempting definitions, making programmatic statements or hortatory declarations, establishing organs with limited powers of promotion, investigation, bringing pressure to bear on governments, or recommendation, and encouraging the mass communication of the aims and ideals to be realised.’

Right to Food precedes Right to Education

When we talk of ‘human rights’ we cry hoarse on concepts of equality, freedom, self determination, torture, sexual harassment, and lofty ideals of liberty but we forget the basic things such rights are pegged on. Take ‘right to food’ out of scenario and you land in grave or become handful of ashes yet we don’t see that hullabaloo over this fundamental right, fundamental to concept of ‘right to life’ itself. Not all are lucky to manage two meals everyday and perhaps we take it for granted that it’s so. We keep on glossing the debates on ‘human rights’ with our elitist rhetoric brushing under the carpet all that should be debated and discussed right away. Perhaps we assume all is hunky dory because we have eaten a full stomach, to our fill, to put it that way. We may discuss defence issues and all that goes with it in warm TV Studios after we had taken that brewing mug of coffee with our daily toast. I don’t say we as a country should not compete with others in strategic affairs or militarily or in nuclear affairs but our basic issues which stare us in face need attention. Before all other realities poverty is a reality, malnutrition and hunger are. But how much do we care discussing that in prime TV shows or in seminars and debates?

The right to food is a human right protecting the right for people to feed themselves in dignity, implying that sufficient food is available, that people have the means to access it, and that it adequately meets the individual’s dietary needs. The right to food protects the right of all human beings to be free from hunger, food insecurity and malnutrition.

Although achieving ‘zero hunger’ target is easy said than done and governments can’t be expected to feed each and everyone but efforts should be to minimise situations of hunger and starvation, efforts should be towards ensuring a ‘food democracy’.

International Covenant on Economic, Social and Cultural Rights lay down about this right too. We know that states that are signatories to this covenant have agreed to take steps to the maximum of their available resources to achieve progressively need of right to adequate food but it should not only remain confined to being a signatory for the sake of it that is being reduced to a signatory on paper but every concrete step needs to be taken toward the realisation of achieving targets set as signatories.

At the 1996 World Food Summit, governments reaffirmed the right to food and committed themselves the half the number of hungry and malnourished from 840 to 420 million by 2015. However, the number has increased over the past years, reaching an infamous record in 2009 of more than 1 billion undernourished people worldwide. Furthermore the numbers who suffer from hidden hunger – micronutrient deficiencies that may cause stunted bodily and intellectual growth in children amounts to over 2 billion people worldwide.

The right to food is recognised under international human rights and humanitarian law. Article 25 of the Universal Declaration of Human Rights 1948 recognises right to food as part of the right to an adequate standard of living. It is also enshrined in International Covenant on Economic, Social and Cultural Rights, as mentioned earlier, under its Article 11.In 2012, the Food Assistance Convention was adopted, making it the first legally binding international treaty on food aid.

Horrendous Picture of Malnutrition and Starving Millions – Where Do Fundamental Human Rights like Right to Education Fit?
India faces the stark reality of starving millions especially children who can’t afford having two time meals a day not to think of having a balanced and nutritious diet. Thousands of children fall prey to Kwashiorkor and Marasmus like serious forms of undernutrition. Adequate nutrition should be first guarantee and only after government fulfils this requirement with not a single children facing undernutrition should they jump into framing gracious legislative policies by guaranteeing them free education.

Utsa Patnaik presents this horrendous picture in words in her book by saying that on an average, a family of 5 consume 100 kilograms of grain less per year as compared to the consumption during the Second World War. This is the spectre of starving India.

The World Bank estimates that India is one of the highest ranking countries in the world for the number of children suffering from malnutrition. The prevalence of underweight children in India is among the highest in the world, and is nearly double that of Sub Saharan Africa with dire consequences for mobility, mortality, productivity and economic growth.

The 2015 Global Hunger Index (GHI) Report ranked India 20th amongst leading countries with a serious hunger situation. Amongst South Asian nations, it ranks third behind only Afghanistan and Pakistan with a GHI score of 29.0 ("serious situation").

Deficiencies in nutrition inflict long-term damage to both individuals and society. Compared with their better-fed peers, nutrition-deficient individuals are more likely to have infectious diseases such as pneumonia and tuberculosis, which lead to a higher mortality rate. In addition, nutrition-deficient individuals are less productive at work. Low productivity not only gives them low pay that traps them in a vicious circle of under-nutrition, but also brings inefficiency to the society, especially in India where labour is a major input factor for economic production.

Subodh Varma, writing in The Times of India, states that on the Global Hunger Index India is on place 67 among the 80 nations having the worst hunger situation which is worse than nations such as North Korea or Sudan. 25% of all hungry people worldwide live in India. Since 1990 there have been some improvements for children but the proportion of hungry in the population has increased. In India 44% of children under the age of 5 are underweight. 72% of infants and 52% of married women have anaemia. Research has conclusively shown that malnutrition during pregnancy causes the child to have increased risk of future diseases, physical retardation, and reduced cognitive abilities.

From all these statistical data supporting our argument, we can say that we need to prioritise ‘adequate nutrition’ before taking measures with educating poor and lower classes. We cannot fill empty stomachs with shimmering gloss of ‘free education’. Sound mind in a sound body is the principle we should remember.

Supreme Court laid down on similar lines in People’s Union for Civil Liberties v Union of India and Others popularly known as the “right to food” case, after PUCL argued that article 21 – "right to life" of the Indian constitution when read together with articles 39(a) and 47, makes the right to food a derived fundamental right which is enforceable by virtue of the constitutional remedy provided under article 32 of the constitution. The PUCL argued that excess food stocks with the Food Corporation of India should be fed to hungry citizens. This included providing mid day meals in primary schools. The scheme came into force with the Supreme Court order dated 28 November 2001, which requires all government and government-assisted primary schools to provide cooked midday meals.

Although Midday Meal Scheme was designed to improve the nutritional status of school-age children nationwide but it too failed like all other governmental measures because of poor handling and miscalculations. Child hunger as problem persists in India as said above also. Corruption entered into this sphere too and there also hungry stomachs of anganwadi workers and helpers asked for more and preyed on rights of poor children by selling dal chawal, meant for midday meals of poor children, for their own benefits. Anganwadi workers can’t be blamed however wholly and solely because government never cared to pay them satisfactory monthly pay to keep them from corruption. This scheme may have been intended for good but met its own fault line depriving millions of children of their basic “right to food”.

Right to Education Not a Success Too
Keeping it up with International standards, Right to Education became a fundamental right in India (which was otherwise there as a directive principle under Article 45 of the Constitution) by incorporation of Article 21-A in Indian Constitution via 86th Amendment to it. India passed Right to Education Act, 2009 to concretise what was contained in Article 21-A of the Constitution. Supreme Court too had emphasised on the “right to education” in many judgements like Mohini Jain v. State of Karnataka that ‘the right to education flows directly from the right to life. The right to life and the dignity of an individual cannot be assured unless it is accompanied by the right to education.’ And then it was reiterated in Unnikrishnan v. State of Andhra Pradesh with further elaboration that ‘The right to education further means that a citizen has a right to call upon the State to provide educational facilities to him within the limits of its economic capacity and development.’

But RTE Act, 2009 too met failure as government here also tried to pass buck, in respect of poor and unprivileged children, to private schools by keeping reservation of 25% for them in private aided and unaided schools. On one side you want to show this gracious attitude toward poor and on other you do it by making others shoulder your burden of graciousness.

The fancily named ‘Right to Free and Compulsory Education Act (2009)’ is a classic case study in the short-sightedness of the previous UPA government and a sobering lesson in how long the repercussions of bad policy can last. First, the act doesn’t address the root of the problem in India. By some estimates, private schools attendance accounts for only about 30 per cent. So, 70 per cent of the country’s school students still depend on inadequate government schools – where teacher quality is abysmal, attendance is poor, infrastructure non-existent, and corruption rampant. The RTE does nothing to address this gaping and urgent problem. Under the RTE Act, these institutions are being forced to replace 25 per cent of their fee paying students with (essentially) free students. To make up for the loss in revenue, the school must either collect the difference from the remaining 75 per cent of parents (who may not be able to afford it), or because fee hikes are restricted by law in many Indian states, cut down on their curriculum and/or their quality of teachers. A 25 per cent budget cut would devastate any school and over time, many of these schools are being forced to shut down or are seeing drastic reductions in the quality of their output. The RTE is riddled with poorly conceived conditions. A requirement for a minimum plot size of 2000 square meters means that it is impossible to build small, affordable schools in slums or villages. The act’s insistence that all schools be officially “recognised” means that lakh of small schools doing good work in poor areas are now illegal. And of course, the new layer of bureaucracy created to “inspect” the schools has become another source of corruption and extortion.

Right to Education Act, 2009 got marred too because of poor implementation on ground. Problem is no legislative measure; howsoever honestly intended, will yield results until basic calculations are done. Policies need a backing and we know privileged lot, elitist children don’t need free education, they go for Harvard and Oxford. Free Education is for poor lot who can’t take it without there being a guarantee of basic facilities like food, shelter, Medicare and sanitation first.

‘Right to Education’ as a basic human right and its guarantee as a fundamental right is a laudable measure and worth praise if states assure it for their subjects and any such measure can’t be wished away just because it couldn’t land off that well but we should make sure to work out things which went wrong in its implementation and became hurdles on its path. There is need to work on loopholes in Right to Education Act, 2009 so that every poor child out there receives the benefits of education. Education as we know can pave way for a slum child to become world sensation. But more than that throughout this paper my effort was to argue that ‘education’ is not the be all and end all of it – cure-all to all ills – as we like to believe but there are many a measures which need attention before ‘education’ in a developing country like India. Malnutrition is one such grey area we tend to overlook but which stares in seemingly sparkling face of seemingly shining India, presenting its other dark side to world in matters of basic human rights. We should work on this underbelly of hunger we tend to hide and ignore else it strikes us with a huge force. It doesn’t require genius to understand that free education can’t do wonders on hungry mind. It can’t work wonders on hungry stomachs but alone sound mind can avail of benefits of ‘free education’.We can’t back ‘empty bellies’ by fodder of ‘free education’.

We can’t expect a street child with protruding ribs and drowning eyes to become president of country by free education. This way it’s sheer mockery with human rights. But yes hope of betterment is there and if we work first on grey areas of malnutrition, poor Medicare, poor sanitation, no shelters, and then support it with worthy cause of free education we are there. If this happens alone then can we expect that poor street kid to turn a good academician, scholar, writer or an intellectual. So measures of government and its initiatives regarding education are laudable but we must understand that when we talk of free ‘education’ we don’t tag children of privileged class in it, as said earlier, that their parents without qualms will prefer posh educational institutions than the government aided ones. Education for upper classes and rich classes is not a luxury in that sense but a posh necessity they can afford. So when we talk about ‘free’ education, we talk about all street kids out there who fight to death for a single loaf of bread or who we see on traffic terminals in metropolitan cities begging for a rupee or some drops of water (if they see you with a water bottle in hand) and for them before education, food is a priority. Education for them is a luxury which they can’t prefer over food. They can’t do any better with free education if they go without food for days. Governments can’t afford bragging about free schemes for poor without making basic calculations and brushing under carpet the real needs that poor confront every single day of their life. Let us first take honest steps toward making India a ‘hunger free’ country and then and then only we can think of prosperity and development through educational schemes. For development we have to take all along and cater to each and everyone’s basic needs.

# The United Nations, Office of the High Commissioner of Human Rights, What are human rights?
# Beitz, Charles R., The idea of human rights (Oxford: Oxford University Press 2009) 1.
# Shaw, Malcolm, International Law (6th edn, Cambridge University Press 2008) 265.
# Burns H. Weston, Encyclopaedia Britannica, ‘human rights’.
# Macmillan Dictionary, ‘human rights - definition’, "the rights that everyone should have in a society, including the right to express opinions about the government or to have protection from harm".
# Nickel, James, ‘Human Rights’, The Stanford Encyclopaedia of Philosophy (Fall edn, 2010)
# Nickel, James, ‘Human Rights’, The Stanford Encyclopaedia of Philosophy (Fall edn, 2010)
# The United Nations, Office of the High Commissioner of Human Rights, What are human rights?
# Sepúlveda, Magdalena; van Banning, Theo; Gudmundsdóttir, Gudrún; Chamoun, Christine; van Genugten, Willem J.M, Human rights reference handbook (3rd ed. rev. ed., Ciudad Colon, Costa Rica: University of Peace 2004)
# Burns H. Weston, Encyclopaedia Britannica, ‘human rights’.
# The United Nations, Office of the High Commissioner of Human Rights, What are human rights?
# Nickel, James, ‘Human Rights’, The Stanford Encyclopaedia of Philosophy (Fall edn, 2010)
# Francis Coralie v Union Territory of Delhi AIR (1978) SC 597
# AIR (1978) SC 597
# Nelson Mandela, Long Walk to Freedom p.155 para 2.
# Nickel, James, ‘Human Rights’, The Stanford Encyclopaedia of Philosophy (Fall edn, 2010)
# Ishay, Micheline R., The history of human rights : from ancient times to the globalization era. Berkeley, Calif, (University of California Press 2008) 64.
# Freeman, Michael , Human rights : an interdisciplinary approach (Cambridge: Polity Press 2002) 15-17.
# Danny Danziger & John Gillingham, ‘1215: The Year of Magna Carta’ (paperback edn, 2004) 278.
# Freeman, Michael, Human rights : an interdisciplinary approach (Cambridge: Polity Press 2002) 18-19.
# Gary J. Bass (book reviewer), Samuel Moyn (author of book being reviewed), The New Republic, The Old New Thing
# Freeman, Michael, Human rights: an interdisciplinary approach (Cambridge: Polity Press 2002) 18-19.
# I.A.Shearer, Starke’s International Law (Eleventh edn, Oxford University Press 2009) 328-329.
# ibid 329.
# I.A.Shearer, Starke’s International Law (Eleventh edn, Oxford University Press 2009) 328-329.
# ibid
# Jean Ziegler “What is the right to food?” (2012).
# The Food Assistance Convention is an international treaty relating to food assistance. It was adopted on 25 April 2012 in London.
# Professor Utsa Patnaik, The Republic of Hunger & Other Essays (2007).
# The World Bank, ‘World Bank Report on Malnutrition in India’ (2009).
# ‘2015, Global Hunger Index Report’, International Food Policy Research Institute (IFPRI).
# ‘Turning the Tide of Malnutrition’, World Health Organisation.
# ‘A call for reform and action’, The World Bank.
# Subodh Varma, ‘Superpower? 230 million Indians go hungry daily’, The Times of India, 15 January, 2012.
# AIR (2001) SC
# (1992) 3 SCC 666
# (1993) 1 SCC 645
# Rohan Parikh, ‘Failure of Right To Education Act: Is it time to privatise education?’, The Indian Express, January 26, 2016.
# Rohan Parikh, ‘Failure of Right To Education Act: Is it time to privatise education?’, The Indian Express, January 26, 2016.


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