Cyclone Amphan - The State's 'minimum core' obligations during a natural disaster

Cyclone Amphan has caused widespread damage in Orissa and West Bengal. The damage has been more severe for those who live in kachha houses, huts, and in slum areas – where there has been a loss of shelter and livelihood. In areas such as the Sunderbans, there has been widespread destruction of livestock and uprooting of trees. The cyclone has hence had a tremendous impact on two basic socio-economic rights, which are shelter and livelihood. Both shelter and livelihood are socio-economic rights that fall within the ambit of Article 21 of the Constitution.

In earlier posts (see here and here), we have discussed the State’s ‘minimum core’ obligation to secure access to socio-economic rights, during situations such as a nationwide lockdown. To recall, this concept of ‘minimum core’, finds mention in General Comment No. 3 of the International Covenant on Economic, Social and Cultural Rights, and states that the minimum essential levels of each right should be immediately realized by the State. Indian Courts have used this ‘minimum core’ doctrine in certain situations, such as while determining the State’s obligation under the right to health, which is part of Article 21.

In Mohd Ahmed v. Union of India, the Delhi High Court held that providing access to life-saving drugs is part of the State’s ‘minimum core’ obligation under the right to health. The Court here emphasized that the ‘minimum core’ should be interpreted in a manner that secures access to the basic essential levels of a socio-economic right, through which deprived sections of society can live with dignity. The key aspect to be noted here is that for obligations that fall under the ‘minimum core’ standard, the State cannot say that it lacks financial resources to fulfill the same. Financial paucity is not a justification for failing to secure access to those elements of a right that fall within the ambit of the ‘minimum core’. This ‘minimum core’ standard may vary based on the prevailing situation and surrounding circumstances.

Now, due to Cyclone Amphan, many residents have been affected by a loss of shelter and livelihood. This natural disaster has hence reduced access to these socio-economic rights, for certain segments of the population. This loss of access can only be compensated for by the State (i.e. the Central Government along with the State Governments of Orissa and West Bengal). Hence, in this situation of a natural disaster, the State should focus on securing the ‘minimum core’ of the right to shelter and livelihood. Applying the test laid down in Mohd Ahmed, the minimum core should be devised in a manner that would ensure that deprived sections of society get access to the basic essential levels of each of these rights, that would enable them to live with dignity.

This would imply that for the right to shelter, the ‘minimum core’ obligation would mandate the State to ensure that those who have lost their homes to the cyclone are provided with alternative accommodation, or with the resources needed to reconstruct the same. With respect to the loss of livelihood (caused due to destruction of livestock, markets, shops etc.) the State can provide income support or other financial resources that would enable affected persons to survive, and live with dignity. This grant of resources that are necessary to live with dignity forms the ‘core’ of the right to shelter and livelihood, in a situation where there has been a natural disaster. Paucity of financial resources cannot be an excuse that the State can make for failing to secure access to the ‘minimum core’ element of each of these rights.

This ‘minimum core’ element only lays down the constitutional benchmark that should be satisfied, and the State can decide the set of relief measures through which the ‘minimum core’ can be enforced. While the State has the flexibility to devise relief measures in a manner that it deems fit, the minimum core doctrine highlights that such relief measures are part of the State’s constitutional obligation under Article 21, and are not acts of charity undertaken through allocation of resources. While Cyclone Amphan was ephemeral, let us hope that the damage it causes is not permanent. This hinges on whether the State can ensure that its relief and assistance measures live up to constitutional obligations.