Swaraj Abhiyan Vs Union of India

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (C) NO. 857 OF 2015

Swaraj Abhiyan (V) .…Petitioner

versus

Union of India & Ors. …Respondents

J U D G M E N T

Madan B. Lokur, J.

1. Our Constitution provides a simple answer to one disturbing question

that has arisen in this case: What can the Government of India do to require

the State Governments and Union Territories to make functional those

bodies and authorities that are mandated by a law passed by Parliament

(such as the National Food Security Act, 2013)? The answer to this is

provided in Article 256 of our Constitution – perhaps a forgotten provision

– which reads as follows:

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“256. Obligation of States and the Union – The executive power of every State shall be so exercised as to ensure compliance with the laws made by Parliament and any existing laws which apply in that State, and the executive power of the Union shall extend to the giving of such directions to a State as may appear to the Government of India to be necessary for that purpose.”

In other words, the Government of India cannot plead helplessness in

requiring State Governments to implement parliamentary laws.

Another question that arises is : What remedy does a citizen of India

have if the Government of India does not issue such a direction and the

State Government or the Union Territory does not implement a law passed

by Parliament?

2. These two questions arise in the context of the seriousness with

which the National Food Security Act, 2016 - a welfare legislation – is and

should be implemented.

3. Initially the National Food Security Ordinance, 2013 was

promulgated by the President on 5th July, 2013. Thereafter, the National

Food Security Bill, 2013 was introduced in Parliament with, amongst

others, the following objectives:

“(k) impose obligation upon the State Governments to put in place an internal grievance redressal mechanism which may include call centers, help lines, designation of nodal officers, or such other mechanism as may be prescribed by the respective Governments; and for expeditious and effective redressal of grievances of the aggrieved person in matters relating

W.P. (C) No. 857 of 2015 Page 2 of 24

to distribution of entitled foodgrains or meals under Chapter II of the proposed legislation, a District Grievance Redressal Officer, with requisite staff, to be appointed by the State Government for each District, to enforce these entitlements and investigate and redress grievances;

(l) make provision for State Food Commission to be constituted by every State Government for the purpose of monitoring and review of implementation of the proposed legislation;

(o) conduct or cause to be conducted by every local authority, or any other authority or body, as may be authorized by the State Government, periodic social audits on the functioning of fair price shops. Targeted Public Distribution System and other welfare schemes, and cause to publicise its findings and take necessary action, in such manner as may be prescribed by the State Government;”

4. The National Food Security Bill was passed by both Houses of

Parliament and received the assent of the President on 10 th September,

2013. Almost four years have gone by but the authorities and bodies

mandated to be set up under the National Food Security Act, 2013 (for short

‘the NFS Act’) have not yet been made functional in some States. This is

despite the fact that Section 14 of the NFS Act requires that “Every State

Government shall put in place an internal grievance redressal

mechanism….”

5. Similarly, Section 15 of the NFS Act provides that “The State

Government shall appoint or designate, for each district, an officer to be the

District Grievance Redressal Officer…..”

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6. Section 16 of the NFS Act provides that “Every State Government

shall, by notification, constitute a State Food Commission……..”

7. Section 28 of the NFS Act provides that “Every local authority, or

any other authority or body, as may be authorized by the State Government,

shall conduct or cause to be conducted periodic social audits……”

8. Similarly Section 29 of the NFS Act provides that “For ensuring

transparency and proper functioning of the Targeted Public Distribution

System and accountability of the functionaries in such system, every State

Government shall set up Vigilance Committees……”

9. The provisions in the NFS Act mentioned above are mandatory and

yet almost four years down the line they have not been fully implemented

by some States.

10. Food security is undoubtedly extremely important and as observed by

this Court in People’s Union for Civil Liberties (PDS Matters) v. Union of

India and ors.1 “Mere schemes without any implementation are of no use.”

Similarly, one may ask what use is a law passed by Parliament if State

Governments and Union Territories do not implement it at all, let alone

implement it in letter and spirit.

1 (2013) 2 SCC 688 W.P. (C) No. 857 of 2015 Page 4 of 24

11. These questions have been troubling us since this matter was listed

on 24th October, 2016 subsequent to our order dated 13th May, 2016 in

Swaraj Abhiyan (II). We had expected the concerned State Governments to

implement the provisions of the NFS Act with all due seriousness since it is

a social welfare legislation enacted by Parliament.

12. Unfortunately, during the hearing we were informed by learned

counsel for the petitioner that Section 15 and Section 16 of the NFS Act

were not being complied with by the State Governments in letter and spirit.

13. In so far as Section 15 of the NFS Act is concerned this mandates the

State Government to appoint or designate, for each district, an officer to be

the District Grievance Redressal Officer for expeditious and effective

redressal of grievances of aggrieved persons in matters relating to the

distribution of entitled foodgrains or meals under Chapter II of the NFS Act

and to enforce the entitlements under the said Act.

14. We were informed that no rules had been framed as required by

Section 15 of the NFS Act for the appointment or designation of the District

Grievance Redressal Officer nor had any qualifications been prescribed for

the appointment of such officers. All that had been done by the State

Governments was that some officials were given additional responsibility as

W.P. (C) No. 857 of 2015 Page 5 of 24

a District Grievance Redressal Officer. However, since those very officers

were in charge of implementation of the NFS Act, designating them as

District Grievance Redressal Officers to whom grievances could be

addressed against them did not serve any purpose at all. We suggested to

the learned Attorney General that since the States before us did not seem to

be fully on board with regard to the implementation of a law enacted by

Parliament, an extremely unfortunate situation had arisen. To get over this

stalemate created by the State Governments it might be appropriate for the

Central Government to consider framing Model Rules under Section 15 of

the NFS Act so that it would make things easier for the State Governments

and also give some teeth to the law enacted by Parliament.

15. In so far as Section 16 of the NFS Act is concerned this mandates the

State Government to constitute a State Food Commission for the purpose of

monitoring and review of implementation of the NFS Act.

16. We were informed that some of the State Governments had appointed

the Consumer Disputes Redressal Commission constituted under the

provisions of the Consumer Protection Act, 1986 as the State Food

Commission under Section 16 of the NFS Act. We were of the view that

this was unsatisfactory and not in consonance with the provisions of the law

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particularly the letter and spirit of the NFS Act. We therefore suggested to

the learned Attorney General to frame Model Rules under Section 16 of the

NFS Act also for the reasons mentioned above.

17. On 1st December, 2016 the learned Attorney General informed us that

the Secretary in the Ministry of Food and Public Distribution pursuant to an

order passed by us on 28th October, 2016 held a meeting on 9th November,

2016. The Minutes of that meeting were placed before us. Paragraph 6 of

the Minutes state, inter alia, as follows:

“...... As regards SFC [State Food Commission], she stated that ideally State Governments should set up independent Commission as per provisions of the Act and make Rules prescribing method and terms & conditions of appointment of Chairperson and Members of the Commission, its powers, procedures and periodicity of its meeting (at least once in six months), procedure for hearing appeals and timelines for their disposal. However, the Act also provides flexibility to State Governments for designating some existing Commission to act as SFC and many States have opted for this flexibility. In such scenario also, State Government should frame Rules to be followed by the designated Commissions in its role as SFC. Further, Chairman and such Member (s) of the designated Commission who will specifically perform the functions of SFC should be clearly indicated, and such Commission should be provided additional staff to handle the additional work.”

18. It was noted that the NFS Act provides some flexibility to the State

Governments in designating an existing Commission to act as the State

Food Commission. It was noted that many of the State Governments had

W.P. (C) No. 857 of 2015 Page 7 of 24

opted for this flexibility. We expressed the view that while flexibility was

certainly provided by the NFS Act, the constitution of the State Food

Commission must nevertheless meet the requirements of the law and its

members must meet the eligibility criteria. In other words it is not as if any

statutory body or authority could be given additional charge as a State Food

Commission even though the members of that statutory body or authority

did not meet the requirements of Section 16 of the NFS Act.

19. We also expressed the view that it would be more appropriate if a

State Food Commission is constituted under Section 16 of the Act with the

necessary expertise and qualifications to function as such. We expressed

the view that it would be appropriate if the State Food Commission is

constituted at the earliest.

20. Unfortunately, our expectations were belied in as much as when this

matter was taken up on 22nd March, 2017 we noted with regret that

generally speaking the provisions of the NFS Act had not been faithfully

and sincerely implemented by the State Governments before us. With

regard to the implementation of Section 16 of the NFS Act we were

informed that the State Food Commission had not yet been appointed. We

noted that on an earlier occasion we were informed that many State

W.P. (C) No. 857 of 2015 Page 8 of 24

Governments had appointed the Consumer Redressal Commission

constituted under the Consumer Protection Act, 1986 as the State Food

Commission under Section 16 of the NFS Act. We had heard the learned

Attorney General in this regard and had expressed the view that giving

“additional charge” to the Consumer Disputes Redressal Commission to

function as the State Food Commission under Section 16 of the NFS Act

appeared incongruous. This is because the qualifications required for both

the bodies were quite different but that apart we found it odd that the

Consumer Disputes Redressal Commission which performs judicial or

quasi-judicial functions should be asked to perform administrative and

quasi-judicial functions as a State Food Commission under the NFS Act.

21. We drew attention to our order dated 24th October, 2016 and the fact

that we had heard the learned Attorney General and the learned Additional

Solicitor General and learned counsel for the States before we had passed

the order on 24th October, 2016.

22. We were informed during the course of hearing on 22nd March, 2017

that many of the State Governments have in fact framed the necessary rules

and that the Central Government had also prepared Model Rules and

circulated them to the State Governments. Notwithstanding this and even

W.P. (C) No. 857 of 2015 Page 9 of 24

though considerable time had elapsed a State Food Commission has not yet

been constituted in the following States:

1. Madhya Pradesh

2. Karnataka

3. Andhra Pradesh

4. Telangana

5. Maharashtra

6. Gujarat

7. Jharkhand

8. Bihar

9. Haryana

10.Chhattisgarh

23. As far as the State of Haryana is concerned we were informed that

although the State Food Commission had been constituted, it had not been

provided with any infrastructure, office space or budget and it was

apparently requested not to perform any function with the result that it was

compelled to approach the Punjab and Haryana High Court for relief.

24. Since it appeared that the State Governments were not at all inclined

to implement the provisions of a law enacted by Parliament for the benefit

W.P. (C) No. 857 of 2015 Page 10 of 24

of the people of the country, we were compelled and constrained to require

the presence of the Chief Secretaries of the above mentioned States to

inform us whether the law passed by Parliament is intended to be

implemented by the State Governments or not. We also required the

concerned Chief Secretaries to ensure the appointment of the State Food

Commission in accordance with the provisions of the Act, assuming the

State Governments would be willing to implement the law enacted by

Parliament. We also required details of the appointment of independent

District Grievance Redressal Officers under Section 15 of the NFS Act, that

is to say persons independent of those against whom complaints are made

and persons who are not subordinate to the officers against whom

complaints are made. We further required the concerned Chief Secretaries

to inform us whether any social audit had been conducted under the

provisions of Section 28 of the Act which reads as follows:

“Conduct of social audit – (1) Every local authority, or any other authority or body, as may be authorized by the State Government, shall conduct or cause to be conducted, periodic social audits on the functioning or fair price shops, Targeted Public Distribution System and other welfare schemes, and cause to publicise its findings and take necessary action, in such manner as may be prescribed by the State Government.

(2) The Central Government may, if it considers necessary, conduct or cause to be conducted social audit through independent agencies having experience in conduct of such audits.”

W.P. (C) No. 857 of 2015 Page 11 of 24

25. On 26th April, 2017 most of the Chief Secretaries appeared in Court

and some had genuine reasons for not appearing. On our asking, we were

informed about the constitution, establishment and appointment of the State

Food Commission as follows:

1. Madhya Pradesh – Appointments not made. 2. Andhra Pradesh – Appointments not made. 3. Telangana – Appointments made.

4. Maharashtra – Appointments made but no member belonging to any Scheduled Caste or Scheduled Tribe has been appointed.

5. Gujarat - Appointments made. 6. Jharkhand – Appointments made. 7. Bihar - Appointments made but there are still two vacancies. 8. Chhattisgarh – Appointments made. 9. Karnataka (informed on 27th April, 2017) – Constituted and

established. However, the affidavit of the Chief Secretary states that appointments have not yet been made.

10. Haryana – Matter is pending in the Punjab and Haryana High Court.

26. This compliance with the NFS Act is pathetic to say the least and it is

in this background that we are required to consider this case.

27. It was submitted by learned counsel for the petitioner that in so far as

the appointment of a District Grievance Redressal Officer is concerned, an

independent person should be appointed and not the District Collector or

the Deputy Commissioner of the district. The reason advanced by learned

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counsel was that these officers are already extremely busy, they may not be

able to address the grievance of the people within their district and are

directly concerned with the implementation of the NFS Act. As such, they

might not be independent enough to deal with the grievances.

28. In this context, our attention was drawn to a letter dated 14 th March,

2017 sent by the Economic Advisor in the Ministry of Consumer Affairs,

Food and Public Distribution addressed to the Principal Secretary/

Secretary, Department of Food and Civil Supplies of all the States and

Union Territories. In this letter, attention was drawn to the necessity of

establishing a Grievance Redressal Mechanism under the NFS Act and the

draft Model Rules circulated on 21st November, 2016. A request was made

to keep the directions issued by this Court in mind while framing the rules

which could differ from the draft Model Rules prepared by the Central

Government. For guidance a copy of the rules notified by the State

Government of Tripura were enclosed.

29. In the letter, it was stated inter alia as follows:-

“4. While taking further action to (i) notify rules on GRM (ii) appoint DGRO and (iii) constitute State Food Commission, following may be kept in view:

(a) In order to maintain transparency and independence of the grievance redressal machinery, it must be ensured that no officer of the

W.P. (C) No. 857 of 2015 Page 13 of 24

Government dealing with delivery of entitlements under the Act is designated/appointed as DGRO.

(b) The States/UTs which have already designated an existing statutory commission to function as State Food Commission should review the matter to ensure that its constitution is in accordance with the provisions of Section 16 of the Act.

(c) The States/UTs intending to designate any existing statutory commission to function as State Food Commission should ensure that as mandated by Hon’ble Supreme Court, the constitution of existing commission is in accordance with the provisions of Section 16 of the Act.

(d) Keeping in view the State specific requirements and the broad provisions of Model Rules on GRM, the State Governments/UT Administrations may finalize their own Rules and notify the same in consultation with the State Legal Department, and in accordance with the provisions of Section 40 of the Act.”

30. In our view, the draft Model Rules circulated by the Central

Government need serious consideration by the State Governments before us

as well as by other State Governments and Union Territories. As advised by

the Central Government, the grievance redressal machinery should be

independent and its functioning should be transparent. As long as this is

achieved, it hardly matters that some officer of the government is appointed

as the District Grievance Redressal Officer. However, as emphasized in the

letter dated 14th March, 2017 it would be appropriate if an officer dealing

with delivery of entitlements under the NFS Act is not appointed or

designated as the District Grievance Redressal Officer since he or she might

not be able to entertain a complaint against his or her own functioning. In W.P. (C) No. 857 of 2015 Page 14 of 24

view of the circulation of the draft Model Rules, it is now really up to the

Central Government and the Governments of the States and Union

Territories to ensure that a transparent and accountable Grievance Redressal

Mechanism is put in place through notified rules so that the advantages of

the NFS Act can be passed on to those who need the benefit of this social

welfare legislation.

31. With regard to the constitution and establishment of the State Food

Commission, it was submitted by learned counsel for the petitioner that it is

unfortunate that even though the NFS Act has been in force for about four

years, only a few of the State Governments before us had taken its

provisions seriously. It is a pity that legislation enacted by Parliament for

the benefit of the people should be kept on the backburner by some of the

State Governments before us. It was submitted that this apathy is all

pervasive and there are other State Governments and Union Territories that

have not taken the provisions of the NFS Act seriously enough for their

implementation.

32. We are in general agreement with learned counsel for the petitioner

and the fact that even after prodding by the Central Government and our

prodding, many of the State Governments have not yet established a

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working State Food Commission, this is a clear indication that there is

hardly any commitment to the implementation of the NFS Act.

33. In the letter dated 14th March, 2017 referred to above, it has been

mentioned that the States and Union Territories intending to designate any

existing statutory commission to function as the State Food Commission

should ensure that the provisions of Section 16 of the NFS Act are complied

with. In our opinion, while it is theoretically possible to have a statutory

commission or body function as a State Food Commission, provided that

statutory commission or body is constituted and established in accordance

with the provisions of Section 16 of the NFS Act, there might be several

practical difficulties in the actual working of one statutory commission

performing two disparate functions under two different statutes. This is

more than likely to compromise the efficiency of that statutory commission

or body with the result that the beneficiaries of the multifarious functions of

the statutory commission or body would suffer at both ends. This is hardly

conducive to good administration and reduces the importance of a basic

right to wholesome and nutritious food particularly for women and children

which is really the objective of the NFS Act.

W.P. (C) No. 857 of 2015 Page 16 of 24

34. The importance of the State Food Commission cannot be minimized

by the State Government if the NFS Act is to be faithfully implemented. In

this regard, we are pained to read in the affidavit filed by the State of

Haryana that there is hardly any work for the State Food Commission.

With such an attitude, it is very unlikely that any progress will ever be made

either by the State of Haryana or the State Food Commission in Haryana in

the matter of food security. One can only feel sorry for the people in

Haryana.

35. In so far as conducting a social audit is concerned, this is provided

for in Section 28 of the NFS Act and was strongly recommended by learned

counsel for the petitioner.

36. It was pointed out by learned counsel and there was general

agreement with his submission on behalf of the Central Government that

the draft Report of the Working Group on Developing Social Audit

Standards, which has been accepted by the Central Government, should be

implemented with necessary modifications in so far as the NFS Act is

concerned. The reason for the modifications is that the Working Group had

prepared its Report and developed the protocol for conducting a social audit

in consultation with the Comptroller and Auditor General of India in the

W.P. (C) No. 857 of 2015 Page 17 of 24

context of the Mahatma Gandhi National Rural Employment Guarantee

Act, 2005 (for short ‘the MGNREG Act’). In terms of the draft Report the

overall arrangement is as follows:-

“1. Social audit is to be conducted every 6 months by Gram Sabhas.

2. Financial audit of accounts of panchayats and State Employment Guarantee Fund is to be conducted annually by Directors of Local Fund Audit/chartered accountants who send account together with audit certificates to State Governments.

3. The accounts of MGNREG Act Schemes, as certified, together with the audit report on them are sent to the Central Government which causes them to be tabled in each House of Parliament.

4. A copy is also sent by State Governments to CAG who audits the schemes periodically as per his independent judgment and powers under CAG’s (DPC) Act, 1971 read with provisions of Section 24 of the MGNREG Act, 2005.”

37. The social audit standards have been framed with the support of

certain fundamental principles as is apparent from paragraph 1.6 of the draft

Report which reads as follows:-

“These social audit standards have been framed with the support provided by the fundamental principles of Public Sector Auditing (ISSAI 100) and the operational guidelines for coordination and cooperation between SAIs and internal auditors in the public sector (ISSAI 9150), issued by INTOSAI. The national legal framework has been borne in mind, especially taking into account provisions of MGNREG Act 2005, MGNREG Audit of Scheme Rules 2011, Local Fund Audit Acts of the State Governments and CAG’s (DPC) Act, 1971 along with the Regulations, 2007 notified by CAG.”

W.P. (C) No. 857 of 2015 Page 18 of 24

38. The draft Report is exhaustive and we were informed that it has been

accepted by the Central Government and social audits under the MGNREG

Act are being conducted in accordance with the guidelines laid down as

well as the statutory rules framed under the provisions of the MGNREG

Act. The requirement of a social audit is undoubtedly salutary and since it

has been accepted by the Central Government as well as by the Comptroller

and Auditor General of India, we see no reason why it should not be put in

place in so far as the NFS Act is concerned, particularly since a social audit

is mandated under Section 28 of the NFS Act.

39. It was brought to our notice by learned counsel for the petitioner that

Section 29 of the NFS Act requires setting up of Vigilance Committees for

ensuring transparency and proper functioning of the Targeted Public

Distribution System and accountability of the functionaries in such system.

Section 29 of the NFS Act reads as follows:-

“Setting up of Vigilance Committees – (1) For ensuring transparency and proper functioning of the Targeted Public Distribution System and accountability of the functionaries in such system, every State Government shall set-up Vigilance Committees as specified in the Public Distribution System (Control) Order, 2001 made under the Essential Commodities Act, 1955 (10 of 1955), as amended from time to time, at the State, District, Block and fair price shop levels consisting of such persons, as may be prescribed by the State Government giving due representation to the local authorities, the Scheduled Castes, the Scheduled Tribes, women and destitute persons or persons with disability.

W.P. (C) No. 857 of 2015 Page 19 of 24

(2) The Vigilance Committees shall perform the following functions, namely:-

(a) regularly supervise the implementation of all schemes under this Act;

(b) inform the District Grievance Redressal Officer, in writing, of any violation of the provisions of this Act; and

(c) inform the District Grievance Redressal Officer, in writing, of any malpractice or misappropriation of funds found by it.”

40. There can hardly be any doubt that there is a necessity to set up

Vigilance Committees under the NFS Act and the fact that they have not

been set up in spite of the passage of four years after the enactment of the

NFS Act is yet another indication of the lack of the concern shown by the

State Governments and the Union Territories to respect a law enacted by

Parliament.

41. Learned counsel for the petitioner insisted that we appoint Food

Commissioners or Ombudsman who would oversee the functioning and

implementation of the NFS Act since the State Governments before us and

indeed other State Governments and Union Territories were not

implementing the provisions of the NFS Act. For the present, we are not

inclined to appoint any Food Commissioner or Ombudsman to oversee the

functioning and implementation of the NFS Act. In our opinion, it is more

important that each State Government and Union Territory realizes and

W.P. (C) No. 857 of 2015 Page 20 of 24

appreciates their statutory and constitutional obligations and ensures that

the will of Parliament which enacted the National Food Security Act, 2013

is given full effect to in letter and spirit. If the State Governments and

Union Territories decide that they do not wish to abide by a law enacted by

Parliament for the benefit of the people, perhaps some other solution may

have to be found but we hope that no State Government or Union Territory

disregards the will of Parliament.

42. In view of our discussion above, it is quite clear that the NFS Act, a

social justice and social welfare legislation, is not being implemented as it

should be. That is the bane of our society and therefore, in keeping with

our constitutional obligation we are of opinion that the following directions

need to be issued for the effective implementation of the National Food

Security Act, 2013:

1. The Secretary in the Ministry of Consumer Affairs, Food and Public

Distribution of the Government of India should convene one or more

meetings on or before 31st August, 2017 of the concerned Secretaries of

all the State Governments and Union Territories to take stock of the

implementation of the NFS Act and brainstorm over finding ways and

means to effectively implement the provisions of the NFS Act in letter

W.P. (C) No. 857 of 2015 Page 21 of 24

and spirit. A law enacted by Parliament as a part of its social justice

obligation must be given its due respect and must be implemented

faithfully and sincerely and positively before the end of this year.

2. The Secretary in the Ministry of Consumer Affairs, Food and Public

Distribution of the Government of India should emphatically request and

commend to every State Government and Union Territory to notify

appropriate rules for a Grievance Redressal Mechanism under the

provisions of the NFS Act and designate appropriate and independent

officials as the District Grievance Redressal Officer within a fixed time

frame and in any case within this year. Adequate publicity should be

given to the appointment and designation of District Grievance

Redressal Officers so that any aggrieved person can approach them

without any fear and with the expectation that the grievance will be

redressed.

3. The Secretary in the Ministry of Consumer Affairs, Food and Public

Distribution of the Government of India will emphatically request and

commend to the State Governments and Union Territories to constitute,

establish and make fully functional a State Food Commission under the

provisions of the NFS Act before the end of the year. The NFS Act

specifies a very large number of functions that a State Food Commission

W.P. (C) No. 857 of 2015 Page 22 of 24

is required to perform - there is no dearth of work for the State Food

Commission. Therefore the said Secretary should require the Chief

Secretary to ensure that adequate arrangements are made by each State

Government and Union Territory to provide adequate infrastructure, staff

and other facilities for the meaningful functioning of the State Food

Commission including preparation of annual reports required to be laid

before the State Legislature. In our opinion, it would not be appropriate

for reasons that we have already indicated to appoint another statutory

commission or body to function as the State Food Commission unless it

is absolutely necessary and completely unavoidable and only as a last

resort.

4. The Secretary in the Ministry of Consumer Affairs, Food and Public

Distribution of the Government of India will emphatically commend and

request every State Government and Union Territory to constitute and

establish a functioning Vigilance Committee in terms of Section 29 of

the NFS Act before the end of the year for the purposes of carrying out

the duties and responsibilities mentioned in that Section.

5. The Secretary in the Ministry of Consumer Affairs, Food and Public

Distribution of the Government of India will ensure that the social audit

machinery postulated by Section 28 of the NFS Act and which is already

W.P. (C) No. 857 of 2015 Page 23 of 24

in place in so far as the MGNREGA Act is concerned is established at

the earliest with appropriate modifications to enable every State

Government and Union Territory so that a periodic social audit is

conducted and the NFS Act is purposefully implemented for the benefit

of the people.

……………………………J (Madan B. Lokur)

July 21, 2017 New Delhi;

W.P. (C) No. 857 of 2015 Page 24 of 24

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (C.) NO. 857 OF 2015

SWARAJ ABHIYAN (V) …PETITIONER

VERSUS

UNION OF INDIA & ORS. … RESPONDENTS

J UDGMENT

N. V. RAMANA, J.

1. I have had the privilege of going through the judgment of my

learned brother, Justice Madan B. Lokur. In the facts and

circumstances of this case, I agree with the conclusions and

directions. However considering the larger constitutional

question relating to noncompliance of laws by the States, I

W.P. (C) No. 857 of 2015 Page 25 of 24

REPORTABLE

feel it necessary to add on certain aspects which are involved

in this case.

2. As enforcement determines the distance between the law in

text and law in action, therefore what concerns us, in this

case, is the implementation of National Food Security Act,

2013 [hereinafter ‘Act’ for brevity] by various State

Governments.

3. Broadly we are concerned with five areas in which certain

State Governments have been found deficient in implementing

the Act, they are 1. Formulation of Rules under Section 40 of the Act for

effective implementation. 2. Constitution of District Grievance Redressal Officer

[hereinafter ‘DGRO’ for brevity] under Section 15 of the Act. 3. Constitution of Food Commission under Section 16 of the

Act.

4. Conducting ‘Social Audit’ under Section 28 of the Act.

5. Constitution of Vigilance Committee under Section 29 of

the Act.

4. Before we deal with various aspects it would be necessary to

notice the status of implementation by some of the States in

the above mentioned areas. The table given below indicates

W.P. (C) No. 857 of 2015 Page 26 of 24

the status of implementation of the Act as revealed from the

record

W.P. (C) No. 857 of 2015 Page 27 of 24

Table No. 1 –Table indicating the implementation of the Act

STATE

DATE OF

IMPLE MENTA

TION

OF

THE

ACT

STAT US OF RULE

S

STATUS CONCERNING

SECTION 15

(DGRO)

STATUS CONCERNING SECTION 16 (STATE FOOD

COMMISSION)

STATUS CONCERNING

SECTION 28

(SOCIAL AUDIT)

STATUS CONCERNING SECTION 29

(VIGILANCE COMMITTEE)

ANDHRA PRADESH

Not availa ble on record

Form ulate d

from 18.04 .2017

Joint CollectorII

and Additional District

magistrate of the District

Not appointed. A notification has been issued constituting the State Food Commission under Section 16 of the National Food Security Act, 2013, vide G.O.MS No. 6, Consumer Affairs, Food & Civil Supplies

Social audit of Fair Price shops and targeted PDS has been

entrusted to SSAAT,

Department

Needs to be reconstituted in

terms of Rule 9 of the Andhra Pradesh Food Security Rules, 2017

is designated as the District

Grievance Redressal Officer (DGRO)

under Rule 6 of the Andhra Pradesh Food

Security Rules, 2017

Department dated: 12.04.2017.

of Rural Developmen

t.

BIHAR

Not availa ble on record

Form ulate d in 2014

Vide order 432

dt.23.01.201 4, a separate

DGRO (above the

Constituted State Food Commission as a separate entity vide notification no.

386 dt. 21.02.2014. Currently post of

Chairman is vacant.

Not in place.

Not available on record

level of Addl. Collector) is in places

CHHATTI SGARH

Not availa ble on record

Not frame d

Appointed Chief

Executive Officers,

Panchayat in 27 districts

on 22.03.2017.

Constituted Commission vide notification

dt.13.12.2016. Chairman and five members were

appointed on 31.03.2017.

No rules are notified or social audit in terms of Section 28 is being

carried out.

Not available on record

GUJARAT 01.04. 2016

Not frame d

Earlier had appointed District Supply

Officer as DGRO vide

GTH 2016/1/PDS /10.2016/1

Constituted Commission vide Notification No.

GTH/2017/PDS/10.2016 /1667/C1 dt.21.03.2017

and appointed the Chairman and members.

That the Government has decided to give the social audit to Gujarat Social Audit Society.

Not available on record

51/C1 dt.27.01.201 6. Further revised and appointed Residential Additional Collector (Additional District

magistrate) as DGRO

HARYANA

Not availa ble on record

Not frame d

That the State

Government has already designated all the deputy

Commission

Sub judice before the High Court. Earlier additional charge was given to Right to Service Commission.

None conducted

so far Not constituted

ers as District

Grievance Redressal Officer vide Notification

dated 03.10.2013.

JHARK HAND

Augus t,

2015

Form ulate d on Dece mber, 2015

Addl. Collector is designated as District Grievance Redressal Officer (DGRO)

State Food Commission under Section 16 of the Act was constituted vide

Memo No.kha.pra. 1/ja.wi.pra(ra.kha.su/ra.k

ha.aa.)75/2014 1632/1633 dt.13.04.2017. Further the Government has appointed Chairman and other five members.

Gram Sabha for rural areas and Nagar Palika (Urban

Local Body) for urban areas have

been entrusted for Social

Not available on record

Audit

MADHYA PRADESH

Not availa ble on record

Draft Rules Form ulate d

from 07.04 .2017

Not constituted

Not constituted. Notification bearing No. F 7352013XXIX1calling for appointment of the

Commission on 11.04.2017.

A notification (Notification bearing No. F62017 XXIX1) to implement Social Audit in terms of Section 28 of the Act was issued

on 03.04.2017.

Not Constituted

MAHARA SHTRA

Not availa ble on

Not frame d

Additional Collectors

Separate commission is constituted vide

Notification dt.11.04.2017,

Vide Government Resolution

Not available on record

record

who are not concerned with PDS have been

appointed as DGRO vide Notification dt.07.04.201

7

wherein earlier State Consumer Commission

was designated. Appointment are to be

done.

dt.30.07.20 16, Social audit is in place.

TELANGA NA

Oct., 2015

Form ulate d

from 25.02 .2016

Joint Collector of district

under Rule 4 of Telangana

Food Security

Rules, 2015

State Food Commission under Section 16 of the Act was constituted vide G.O.Ms. No.2, (CS.ICCS)

dt.10.04.2017 and subsequently constituted. Further the Government has appointed Chairman, five members and Smt. G. Jamuna, Addl. Secretary to Government (Non

Social audit of Fair Price shops and targeted PDS has been

entrusted to SSAATTS under the MGNERGA platform.

Vigilance committee setup under Rule 10 of Telangana Food

Security Rules, 2015, wherein the District collector is to be the

Chairman, Chairperson, Zilla Parishad to be Co Chairman, Joint collector to be the ViceChairman. District Supply

cadre), PR& RD Dept. as member secretary for period of two years.

Officer shall be the convener and other existing members there shall be other members as per the

National Food Security Act.

5. It is apparent from the above tabulated data that various

State Governments seem to be not so prompt in

implementing the Act in its true letter and spirit. Therefore

the question for adjudication is, what is the remedy for

Union Government as well as the citizens against non

implementing States?

6. The Act was made in furtherance of India’s commitment to

multilateral treaties and this Court’s persistence to alleviate

the condition of rampant malnutrition prevalent in the

country. In Swaraj Abhiyan (II)2 this Court explained the

need and importance of this enactment for India. The

unique feature of this Act is that the Center has de

centralized the regulatory aspects within the Act by

empowering the institutions at the bottom of the pyramid. It

would be important to reproduce Section 38 of the Act

which gives power to the Central Government to give

binding directions to the State Governments in the following

manner

The Central Government may, from time to time, give such directions, as it may consider necessary, to the State Governments for the

2 Swaraj Abhiyan (II) v. Union of India and otr., AIR 2016 SC 2953

36

effective implementation of the provisions of this Act and the State Governments shall comply with such directions.

7. One thing which stands out from a plain reading of the Act

is that for its success it requires cooperation at three levels.

It is to be noted that at every stage of decision making the

Central Government has a very important role to play and

has been envisaged as a check on the working of the State

Governments. This Act elaborates on the nature of

federalism as a functional arrangement for cooperative

action. In order to ensure uniformity for enforcement of

such an Act, consultation needs to be carried out between

various State Governments, individually as well as

collectively, with the Union for effective implementation of

the Act.

8. It is to be noted that State enforcement of Union laws

usually gives rise to difficult questions concerning the

sustainability of cooperative federalism, which we have

accepted as our core constitutional ethos. In Jindal

Stainless Steel v. State of Haryana3, a nine judge bench

3 AIR 2016 SC 5617

37

of this Court has reiterated the principles of cooperative

federalism in India in the following manner

‘185. The Union and the States are coequal in the Indian Federal structure. Our framers created a unique federal structure which cannot be abridged in a sentence or two. The nature of our federalism can only be studied having a thorough understanding of all the provisions of the Constitution. Confirmation that the Union and States are coequals in the Indian federal structure. can be found in the speeches of Hon’ble P.S. Deshmukh, Shri T. T. Krishnamachari and Hon’ble Dr. B. R. Ambedkar before the Constituent Assembly. Common philosophy which runs through our Constitution is that both Center and States have been vested with the substantial powers which are necessary to preserve our unique federation with clear demarcation of power. Calling India as quasi federal might not be advisable as our features are unique and quite different from other Countries like United States of America etc. Courts in India should strive to preserve this unique balance which our framers envisaged, any interference into this balancing act would be detrimental for grand vision proscribed by our makers. Amphibious nature of our federalism has been even noted by the Sarkaria Commission Report on CenterState relationship. Cooperative federalism envisaged under our Constitution is a result

38

of pick and choose policy which our framers abstracted from the wisdom of working experience of other Constitutions’

(emphasis supplied)

9. The principle of federalism as present in India cannot be

explained in a sentence or two; rather a detailed study of

the each and every provision of the Constitution would

inevitably point that India has divided sovereignty in the

form of Center on one hand and States on the other. Each

power house is independent in its own terms. The

constitutional scheme invariably leads to the conclusion

that at times these institutions meet and interact at various

levels to achieve the cherished constitutional goal of co

operative federalism.

10. It is to be noted that our Constitutional setup mandates

that Center is not powerless which is apparent from various

Articles of the Constitution. Further, it is not proper on the

part of the States to ignore the plight of the common man in

enforcing such important legislations, more so when such

legislation is a welfare legislation. From the table provided

above we have seen more breaches than compliance which

39

compelled us to call the Chief Secretaries of all the States to

appear before us. I am of the opinion that for now a

meaningful dialogue between the Center and the State

should resolve the issues which have emerged in this case

in the spirit of cooperative federalism. Record indicates that

a combined effort, both by Center and States, needs to be

taken for effective implementation of the Act especially in

the draught affected areas so as to save people from abject

poverty and poor quality of life. States should take up this

matter with much more seriousness and implement the Act

in its true letter and spirit.

………..………..J. (N. V. RAMANA)

NEW DELHI

DATED – JULY 21, 2017

40

SWARAJ ABHIYAN Vs UNION OF INDIA

SWARAJ ABHIYAN Vs UNION OF INDIA