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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (C) NO. 857 OF 2015

Swaraj Abhiyan – (II)               .…Petitioner

versus

Union of India & Ors.                             .…Respondents  

J U D G M E N T

Madan B. Lokur, J.

1. In  our  judgment  dated  11th May, 2016  we  had  adverted  to  the

drought or the drought-like conditions prevailing in several parts of our

country  and  had  issued  certain  directions  for  compliance.  In  this

judgment, we will  deal with the prayer made by the petitioner Swaraj

Abhiyan relating to  the implementation of  the National  Food Security

Act, 2013 (for short ‘the NFS Act’).   

Implementation of the National Food Security Act, 2013

2. It is submitted by the petitioner that it is necessary to ensure food

security  to  the  persons  affected  by  the  drought.  In  this  regard,  the

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petitioner made four suggestions and they are:

(i) All households should be provided with 5 kg food grains

per person per month irrespective of whether or not they fall in the

category of priority households as defined in Section 2(14) of the NFS

Act read with Section 10 thereof. The provision for food grains should

be in addition to and not in derogation of any other entitlement in any

other government scheme. (ii) Households  that  do  not  have  a  ration  card  or  family

members left out of existing ration cards should be issued special and

temporary coupons on production of an appropriate identity card or

any other proof of residence.  (iii) Each household affected by the drought should be provided

2 kg of dal (lentil) per month at Rs. 30 per kg and one litre of edible

oil  per  month  at  Rs.  25  per  litre  through  the  Public  Distribution

System. In this regard, reference was made to a similar scheme which

is said to be working quite well in Tamil Nadu. (iv) Children affected by the drought should be provided one

egg or 200 gms of milk per day (6 days a week) under the Mid-Day

Meal Scheme. In addition to this, the Mid-Day Meal Scheme should

continue during the summer vacation period in schools so that children

are not deprived of their meals,  including eggs or milk, as the case

may be.  

3. The Union of India has explained in its response that in terms of

Section 3 of the NFS Act the monthly entitlement of food grains is 5 kg

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per person for eligible households under ‘priority’ category and 35 per kg

per family under the Antyodaya Anna Yojna for rice, wheat and coarse

grains.  Coverage  under  the  NFS Act  has  been  delinked  from poverty

estimates and is substantially above the percentage of population living

below the poverty line. It is submitted that coverage under the NFS Act

has to be determined by each State and the criteria for identification of

priority households and their actual identification is the responsibility of

the State Government. It is further stated that the State Government is

expected to digitize the beneficiary database and also set up a ‘grievance

redressal mechanism’.  

4. For  implementation  of  the  NFS  Act,  the  State  Government  is

required to complete all preparatory steps for which guidelines have been

issued by the Government of India. In this context, it is stated that the

implementation  of  the  NFS  Act  has  started  in  32  States  and  Union

Territories and as far as Gujarat is concerned it will implement the NFS

Act from 1st April 2016.  During the course of hearing, we were informed

that thankfully Gujarat is now implementing the NFS Act.  

5. It is also stated that since drought is a temporary phenomenon,

additional food grains are made available on request basis from the State

Government. It is further stated that for 2015-16, only Maharashtra made

a request for additional food grain allocation for drought affected people

and the Government of India made available 1.63 lakh tons of rice and

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2.44 lakh tons of wheat, as requested.    

6. With regard to the supply of dal/lentil and edible oils, it is stated

by the Union of India that under the NFS Act there is no provision to

supply these items. In the absence of sufficient domestic availability of

these items, their supply under the Public Distribution System is difficult

to ensure and there are fiscal constraints on stretching the food subsidy

bill  by including the supply of dal/lentil and edible oils.  However, the

State Governments are at liberty to distribute additional items out of their

own  resources.  In  fact,  Andhra  Pradesh,  Chhattisgarh,  Haryana,

Karnataka  and  Telangana  are  distributing  dal/lentil  or  edible  oils  to

sections  of  society  while  Chhattisgarh  is  distributing  chana  (gram)  in

scheduled areas.  

7. With  regard  to  the  Mid-Day  Meal  Scheme,  it  is  stated  by  the

Union of India that there is no special provision for the supply of eggs or

milk  but  there  is  a  requirement  of  minimum calorific  and  nutritional

contents. These are as follows:

Components Primary Upper Primary Calories 450 Cal 700 Cal Protein 12 gm 20 gm

Micronutrients Adequate  quantities  of  micronutrients  like  Iron, Folic Acid, Vitamin A etc.

8. It is further stated by the Union of India that the menu under the

Mid-Day Meal Scheme is locally decided and of the 12 States that we are

concerned with, only 5 States that is Andhra Pradesh, Karnataka, Madhya

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Pradesh,  Odisha  and Telangana provide either  eggs or  milk under  the

Mid-Day  Meal  Scheme.  According  to  Swaraj  Abhiyan,  additional  or

different items like chana (for example) is provided by 4 other States,

Chhattisgarh,  Gujarat,  Jharkhand and Maharashtra.  Admittedly, neither

eggs nor milk nor any other additional item is provided by 3 States, that

is, Bihar, Haryana and Uttar Pradesh.  

9. With regard to continuing the Mid-Day Meal Scheme during the

summer vacations in the drought affected areas, the Union of India says

that only 3 of the States that we are concerned with, that is, Karnataka,

Maharashtra and Uttar Pradesh made such a proposal during 2015-16 and

that  was  sanctioned  by  the  Performance  Appraisal  Board.  As  far  as

2016-17 is concerned, only Chhattisgarh, Karnataka and Madhya Pradesh

have made a request and that is under consideration by the Performance

Appraisal Board.  

10. The monitoring and implementation of the NFS Act is really the

duty and responsibility of the State Food Commission under Section 16

of the NFS Act. We are told that not every State has established such a

Commission making it difficult for any corrective or remedial measures

in respect of the review and implementation of the NFS Act. It is high

time  that  the  machinery  under  the  NFS  Act  is  put  in  place  by  all

concerned otherwise the enactment of social justice legislations will have

no meaning at all.  

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Discussion and conclusions

11. We are quite surprised that with regard to the implementation of

the NFS Act, even though the statute was passed by Parliament and it

extends to the whole of India and is deemed to have come into force on

5th July  2013,  some States  have  not  implemented it.  As per  the  chart

provided to us by learned counsel for the petitioner in the Note, the State

of Uttar Pradesh has partially implemented the NFS Act in the sense that

it  has  been  implemented  only  in  28  of  its  75  districts.  Gujarat  has

admittedly implemented the NFS Act only from 1st April 2016.  

12. It  is  surprising  that  the  implementation  of  a  law  enacted  by

Parliament such as the NFS Act is left to the whims and fancies of the

State Governments, and it has taken more than two years after the NFS

Act came into force for Gujarat to implement it and Uttar Pradesh has

only implemented it partially. This is rather strange. A State Government,

by  delaying  implementation  of  a  law  passed  by  the  Parliament  and

assented to by the President of India, is effectively refusing to implement

it  and  Parliament  is  left  a  mute  spectator.  Does  our  Constitution

countenance  such  a  situation?  Is  this  what  ‘federalism’ is  all  about?

Deliberate inaction in the implementation of a parliamentary statute by a

State Government can only lead to utter chaos or worse. One can hardly

imagine what  the  consequence  would be if  a  State  Government,  on a

similar  logic,  decides  that  it  will  not  implement  other  parliamentary

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statutes meant for the benefit of vulnerable sections of society. Hopefully,

someone,  somewhere,  sometime  will  realize  the  possible  alarming

consequences.

13. We find force in the submission of the learned Additional Solicitor

General  that  no  mandamus  can  be  issued  by  this  Court  to  the  State

Governments to implement the NFS Act beyond what is required by the

terms and provisions of the statute. In other words, it is not possible for

us  to  issue  a  positive  direction  to  the  State  Governments  to  make

available to needy persons any item over and above what is mandated by

the NFS Act, such as dal/lentil and edible oil (or any other item for that

matter)  to  all  households in  the drought  affected areas.  Today, Swaraj

Abhiyan prays for the supply of dal/lentil and edible oils; tomorrow some

other NGO might pray for the supply of some other items. This might

become an endless  exercise  and would require  us  to  go beyond what

Parliament  has  provided.  While  this  Court  or  any other  constitutional

court can certainly intervene, to a limited extent, in issues of governance

it has also to show judicial restraint in some areas of governance, and this

is one of them.  

14. In  State of Himachal Pradesh v. Umed Ram Sharma1 the High

Court had treated a letter as a public interest petition received from some

poor and mostly Harijan residents of a village complaining of the failure

of the State Government to complete the construction of a road due to

1 (1986) 2 SCC 68

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collusion between the residents of another village and the administrative

authorities. The High Court heard the matter and gave directions,  inter

alia, for early completion of the road. This was challenged by the State

before this Court. This Court took resort to Article 21 of the Constitution

and observed that for residents of hilly areas, access to roads is access to

life itself. This Court held:

“The entire State of Himachal Pradesh is in hills and without workable roads, no communication is possible. Every person is entitled to life as enjoined in Article 21 of the Constitution and in the facts of this case read in conjunction with  Article  19(1)(d)  of  the  Constitution  and in  the  background of  Article 38(2) of the Constitution every person has right under Article 19(1)(d) to move freely throughout the territory of India and he has also the right under Article 21  to  his  life  and  that  right  under  Article  21  embraces  not  only  physical existence of life but the quality of life and for residents of hilly areas, access to road is access to life itself. These propositions are well settled. We accept the proposition  that  there  should  be  road  for  communication  in  reasonable conditions in view of our constitutional imperatives and denial of that right would be denial of the life as understood in its richness and fullness by the ambit of the Constitution. To the residents of the hilly areas as far as feasible and  possible  society  has  constitutional  obligation  to  provide  roads  for communication.”

15. After  referring  to  Article  38(2)  of  the  Constitution,  this  Court

observed that “access to life should be for the hillman an obligation of the

State  but  it  is  primarily  within  the  domain  of  the  legislature  and  the

executive  to  decide the priority  as  well  as  to  determine the urgency.”

There  had  been  allocation  of  funds  and  the  “court  has  directed  the

executive to bring it to the notice of the legislature if some reallocation

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was feasible amongst the sanctioned expenditure for roads leaving the

priorities to the discretion of the competent authorities.”

16. In State of H.P. v. High Court of H.P.2 the High Court acted on a

newspaper report and directed the construction of a certain road during

the current financial year and the State Government was directed to make

the  funds  available  for  the  purpose.  This  Court  found  it  extremely

difficult  to uphold the order of the High Court.  Two principal  reasons

were  given:  firstly,  it  is  for  the  State  Government  to  determine  its

priorities and allocate funds, even though it might be necessary to lay a

communication network; secondly, the necessity could be fulfilled only

on  the  availability  of  funds. “Any  interference  of  this  nature  would

require  diversion  of  funds  carefully  allocated  on  the  basis  of  priority

requirements and thereby disturb the programme of development chalked

out by the State Government.”

17. In matters involving financial issues and prioritization of finances,

this Court should defer to the priorities determined by the State, unless

there is a statutory obligation that needs to be fulfilled by the State. It is

for this reason that in the matter of construction of roads (for example)

this Court has left the prioritization to the State.

18. In State  of  Uttaranchal  v. Balwant Singh Chaufal3 this  Court

observed that public interest litigation in India has travelled through three

2  (2000) 10 SCC 646 3 (2010) 3 SCC 402

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phases. These are:   

Phase I. - It deals with cases of this Court where directions and orders were passed  primarily  to  protect  fundamental  rights  under  Article  21  of  the marginalised  groups  and  sections  of  the  society  who  because  of  extreme poverty,  illiteracy  and  ignorance  cannot  approach  this  Court  or  the  High Courts.

During this phase, the courts relaxed the traditional rule of  locus standi

and broadened the definition of aggrieved persons and gave directions

and orders to preserve and protect the fundamental rights of marginalized,

deprived and poor sections of society.  

Phase  II.  -  It  deals  with  the  cases  relating  to  protection,  preservation  of ecology,  environment,  forests,  marine  life,  wildlife,  mountains,  rivers, historical monuments, etc. etc.

This hardly needs any elucidation. This Court has been in the forefront in

issues  relating  to  the  environment,  forests  and  historical  movements,

amongst others. There are several decisions of this Court in this regard.  

Phase III. - It deals with the directions issued by the Courts in maintaining the probity, transparency and integrity in governance.

In  the  third  phase,  the  constitutional  courts  “broadened  the  scope  of

public interest litigation and also entertained petitions to ensure that in

governance  of  the  State,  there  is  transparency  and  no  extraneous

considerations are taken into consideration except the public interest.”

19. As far  as  the present  case is  concerned,  there is  no doubt that

provision  of  food  grains  as  per  the  provisions  of  the  NFS  Act  is  a

statutory obligation on the State. This Court can certainly direct the State

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to  faithfully  implement  the  provisions  of  the  NFS Act.  Unfortunately,

there is no statutory or constitutional obligation on the State to provide

edible oils and dal/lentil to people in distress. If these items were vital for

the survival of the people, this Court would have surely directed their

distribution. But there is nothing to suggest that without edible oils and

dal/lentil the fundamental right of the people in drought affected areas

guaranteed under Article 21 of the Constitution is violated. We therefore

cannot reasonably read into the Constitution or the law something that is

not there. That apart, although the number of affected households is not

available with us, we can only assume the number to be sizeable given

the fact that drought has been declared in vast areas of the country. Even

on a conservative estimate,  more than 33 crore people are affected by

drought with varying degrees of distress and intensity. The estimate of

Swaraj Abhiyan is between about 40 crore and over 50 crore people being

affected by drought. All that we can say and do say in this regard is that at

least 1/4th of the country’s population (if not 1/3rd) is affected by drought

and the State Governments must take appropriate steps to ensure that at

least the statutory requirement of  food grains is made available to the

people in the drought affected areas of the country. In addition, and to the

extent possible, the State Government should take appropriate measures

to provide dal/lentil and an appropriate cooking medium and any other

items of necessity to persons affected by the drought and if a request is

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made by a State Government to the Government of India, it must consider

the request with compassion.  

20. We would like to draw attention to Article 47 of the Constitution

which provides that one of the primary duties of the State is to raise the

level  of  nutrition  and the  standard  of  living of  the  people.4 Although

Article  47  is  not  enforceable  being  a  Directive  Principle,  there  is

considerable moral force and authority in this provision to persuade the

State Governments and the Government of India to attempt at ensuring

that the people, particularly those in drought affected areas, are provided

adequate food grains and a cooking medium for the preparation of their

meals.   

21. Similarly, the entitlement of food grains at 5 kg per person per

month (as per the NFS Act) is a goal that must be achieved by the State at

the earliest particularly in drought affected areas. In fact, statute or no

statute and implementation or non-implementation of a law enacted by

Parliament,  the State  ought  to  appreciate  and realize  that  an  adequate

supply  of  food  grains  must  be  made  available  without  much  fuss  to

people in drought affected areas. As it is,  because of the drought such

persons  undergo  immense  hardship  mainly  for  reasons  beyond  their

control and if there is a scarcity of food, it would only add to their misery

4 47. Duty of the State to raise the level of nutrition and the standard of living and to improve public health - The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public  health  as  among  its  primary  duties  and,  in  particular,  the  State  shall endeavour to bring about prohibition of the consumption, except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.

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and adversity if not multiply it. The State being a welfare State must take

these factors into consideration and strain every nerve to ensure that the

mandate of the NFS Act is adhered to.

22. In  this  context,  it  would  be  inappropriate  for  the  State

Governments to deprive any household in drought affected areas of  the

requisite food grains merely because they do not have a ration card.  We

find substance in the contention of learned counsel for Swaraj Abhiyan

that in grave and emergent situations such as those in the drought affected

areas, the requirement of a ration card for obtaining food grains can only

be considered a procedural requirement and that requirement should be

substituted  with  a  valid  identity  card  or  any  appropriate  proof  of

residence that is acceptable to the functionaries in the State Governments,

who need to construe such a condition open-handedly and without being

tight-fisted.

23. We reject the contention on behalf of the Union of India that fiscal

constraints or an increase in the food subsidy bill  can be a reason for

denying relief  to  persons  in  drought  affected areas.  Our  constitutional

jurisprudence has travelled an enormous distance over the years to even

think of attempting a roll-back.  

24. In Municipal Council, Ratlam v. Vardichan5 this Court took the

view that a plea of financial inability cannot be an excuse for disregarding

statutory duties. It was held in paragraph 12 of the Report:   

5 (1980) 4 SCC 162

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“The statutory setting being thus plain, the municipality cannot extricate itself from its responsibility. Its plea is not that the facts are wrong but that the law is not right because the municipal funds being insufficient it cannot carry out the duties under Section 123 of the Act. This “alibi” made us issue notice to the State which is now represented by counsel, Shri Gambhir, before us. The plea  of  the  municipality  that  notwithstanding the  public  nuisance  financial inability validly exonerates it from statutory liability has no juridical basis. The  criminal  procedure  code  operates  against  statutory  bodies  and  others regardless of the cash in their coffers, even as human rights under Part III of the  Constitution have  to  be respected by the  State  regardless  of  budgetary provision. Likewise, Section 123 of the Act has no saving clause when the municipal  council  is  penniless.  Otherwise,  a  profligate  statutory  body  or pachydermic governmental agency may legally defy duties under the law by urging  in  self-defence  a  self-created  bankruptcy  or  perverted  expenditure budget. That cannot be.”

25. Similarly, in Khatri (II) v. State of Bihar6 this Court referred to a

constitutional obligation (as against a statutory obligation) of providing

free legal services to an indigent person and had this to say in paragraph 5

of the Report:  

“Mr K.G. Bhagat on behalf of the State agreed that in view of the decision of this Court the State was bound to provide free legal services to an indigent accused but he suggested that the State might find it difficult to do so owing to financial constraints. We may point out to the State of Bihar that it  cannot avoid  its  constitutional  obligation  to  provide  free  legal  services  to  a  poor accused by pleading financial or administrative inability. The State is under a constitutional mandate to provide free legal aid to an accused person who is unable  to  secure  legal  services  on  account  of  indigence  and  whatever  is necessary for this purpose has to be done by the State. The State may have its financial constraints and its priorities in expenditure but, as pointed out by the court  in  Rhem v.  Malcolm7 “the  law  does  not  permit  any  Government  to deprive its citizens of constitutional rights on a plea of poverty” and to quote the words of Justice Blackmun in Jackson v. Bishop8 “humane considerations and constitutional requirements are not in this day to be measured by dollar considerations.”

6 (1981) 1 SCC 627 7 377 F Supp 995 8 404 F Supp 2d 571

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26. Finally,  in  Paschim  Banga  Khet  Mazdoor  Samity  v.  State  of

W.B.9 this Court referred to another constitutional obligation of providing

adequate medical services to the people and held in paragraph 16 of the

Report as follows:  

“It  is  no doubt true that financial  resources are needed for providing these facilities. But at the same time it cannot be ignored that it is the constitutional obligation of the State  to  provide adequate medical  services to  the people. Whatever is necessary for this purpose has to be done. In the context of the constitutional obligation to provide free legal aid to a poor accused this Court has held that the State cannot avoid its constitutional obligation in that regard on account of financial constraints. [See: Khatri (II) v. State of Bihar] The said observations would apply with equal,  if  not  greater, force in  the matter  of discharge of constitutional obligation of the State to provide medical aid to preserve human life. In the matter of allocation of funds for medical services the said constitutional obligation of the State has to be kept in view.”

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.10]  In  any

event,  even  if  the  right  to  food  is  a  statutory  right,  it  would  be  the

obligation of  the State to make all  possible  efforts  and some more to

ensure that to the extent possible, adequate food grains are available to all

and particularly to those in drought affected areas. There can hardly be

any  dispute  on  this.  In  this  context,  it  would  be  worth  recalling  the

Preamble to the NFS Act which states that it is “An Act to provide for

food and nutritional security in human life cycle approach, by ensuring

9 (1996) 4 SCC 37 10 (1990) 1 SCC 520

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access to adequate quantity of quality food at affordable prices to people

to  live  a  life  with  dignity  and  for  matters  connected  therewith  or

incidental thereto.”

27. As far  as  the provision of  eggs or  milk for  Mid-Day Meals  is

concerned, there is no dispute that calorific and nutritional contents for

children have been prescribed under the Mid-Day Meal Scheme. How

that standard is to be met is for each State Government to decide and no

direction can be given in this regard by this Court. Apart from milk and

eggs, there are other nutritional items that can be provided, such as chana

or gram. However, it is unfortunate that neither milk nor eggs or anything

else is provided under the Mid-Day Meal Scheme in Bihar, Haryana and

Uttar Pradesh. Even in the States that we are concerned with, eggs or

milk is not being provided to the beneficiaries on a daily basis or 5 days

in a week, except in Chhattisgarh where eggs are provided for 6 days in a

week. In other States that provide eggs or milk, the provision varies from

one day to three days per week.  

28. No one can doubt that children are the future of our country and if

there is some stinginess in providing them with adequate nutrition, the

country as a whole is deprived in future of taking the benefit  of their

potential. Therefore, the calorific and nutritional requirements mentioned

by the Union of India cannot be treated as the maximum requirements but

only as the minimum requirements.   

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29. As regards the provision of extending the Mid-Day Meal Scheme

during the summer vacations, it is a pity that for the year 2016-17 only

three States, that is Karnataka, Madhya Pradesh and Chhattisgarh have

submitted a proposal for consideration to the Government of India. Is it

that  the  States  expect  the  children  and  their  families  to  fend  for

themselves  during  the  summer  months?  Maharashtra  had  submitted  a

proposal in 2015-16 to the Union of India and that was accepted as it is

by the Performance Appraisal  Board  but  no  proposal  appears  to  have

been made by Maharashtra for 2016-17. Is it that the drought conditions

have improved in Maharashtra over the last one year? We do not know.

We have not been given any reason for not extending the Mid-Day Meal

Scheme  into  the  summer  vacation  in  respect  of  some  of  the  drought

affected States before us, nor is there any opposition to the prayer for

extension made by Swaraj Abhiyan in this regard. In fact the Guidelines

of September 2006 for the Mid-Day Meal Scheme provide in Chapter 5

thereof (paragraph 5.1(4)(iii) as follows:

“In case notification declaring an area as ‘drought-affected’ is issued at a time when summer  vacation  has  already commenced or  is  about  to  commence, State Govt. should provide mid-day meal in primary schools located in such areas in anticipation of release of Central assistance.”

Accordingly, we take it, that the State Government of each of the drought

affected States before us (other than the three States mentioned above)

are not averse to extending the Mid-Day Meal Scheme into the vacation

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period for schools in the drought affected areas.  

Directions

30. In view of the discussion and the conclusions arrived at by us, we

issue the follow directions:

1. Each of the States before us shall establish an internal grievance

mechanism and  appoint  or  designate  for  each  district  a  District

Grievance  Redressal  Officer  as  postulated  by  Section  14  and

Section 15 respectively of  the NFS Act  within one month from

today, unless these provisions have already been complied with.

The  said  Officer  would  also  be  entitled  to  address  grievances

relating to non-supply of food grains due to the absence of a ration

card.

2. Each  of  the  States  before  us  shall constitute  a  State  Food

Commission  for  the  purpose  of  monitoring  and  reviewing  the

implementation of the NFS Act as postulated by Section 16 thereof

within two months from today, unless a State Food Commission

has already been constituted.  

3. In  the  States  in  which  drought  has  been  declared  or  might  be

declared in the future, all households should be provided with their

monthly  entitlement  of  food  grains  in  terms  of  the  NFS  Act

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regardless of whether they fall in the category of priority household

or not. The provision made under the NFS Act shall be in addition

to and not in derogation of any other entitlement under any other

government scheme.

4. No household in a drought affected area shall be denied food grains

as required under the NFS Act only because the household does not

have a ration card. The requirement of a household having a ration

card is directed to be substituted by an appropriate identification or

proof of residence that is acceptable to the State Government.

5. It is made clear that each of the States before us is fully entitled to

provide  any  food  grains  or  other  items  over  and  above  and  in

addition  to  the  entitlement  of  a  household  under  the  NFS  Act.

There is no restriction in this regard.

6. The  States  of  Bihar,  Haryana  and  Uttar  Pradesh  must  within  a

month from today make adequate provision for the supply of eggs

or milk or any other nutritional substitute for children under the

Mid-Day Meal Scheme. Eggs, milk or another nutritional substitute

should be made available preferably five days in a week or at least

three  days  in  a  week.  The other  States  before  us  must  make  a

similar  provision  for  the  supply  of  eggs  or  milk  or  any  other

nutritional substitute preferably five days in a week or at least three

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days  in  a  week.  Keeping  in  mind  the  children  of  this  country,

financial constraints shall not be an excuse for not complying with

this direction.  It is a sad commentary that we should have to say

this but we need to in the interest of the children of our country.  

7. The  States  before  us  are  directed  to  extend  the  Mid-Day  Meal

Scheme for  the  benefit  of  children  during the  summer  vacation

period in schools, if the extension has not yet been made, within a

week from today. The Union of India shall immediately approve

any such a proposal in consultation with these State Governments.

This  direction  is  being  passed  in  the  interest  of  children  in

drought-affected areas.

31. We might  mention that  the  Union of  India  usually  brings  into

force a statute without putting in place the implementation machinery.

This is clearly demonstrated by the fact that the mechanism for enforcing

several provisions of the NFS Act has not been established or constituted.

This  is  completely  inexplicable.  We fail  to  understand  how  a  statute

enacted by Parliament can be given effect to without appropriate rules

and  regulations  being  framed  for  putting  in  place  the  nuts  and  bolts

needed to give teeth to the law or setting up mechanisms in accordance

with the provisions of the statute. It is perhaps this tardiness in execution

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that enables some State Governments to take it easy and implement the

law whenever it is convenient to do so.  

..……………………..J (Madan B. Lokur)

New Delhi;          ………………………J May 13, 2016                     (N.V. Ramana)

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (C) NO. 857 OF 2015

Swaraj Abhiyan – (III)               .…Petitioner

versus

Union of India & Ors.                             .…Respondents  

J U D G M E N T

Madan B. Lokur, J.

1.  In our judgment dated 11th May, 2016 we had considered the

issue of the drought or drought-like conditions prevailing in some parts of

the  country  and  had  issued  certain  directions  for  compliance.

Subsequently,  in  a  related  matter  in  our  judgment  pronounced  today,

we have dealt  with the provisions of  the National  Food Security  Act,

2013 and the Mid-Day Meal Scheme announced by the Government of

India and issued directions for the effective implementation of the statute

and the  Mid-Day Meal  Scheme to  benefit  people  (including children)

particularly those affected by the drought or drought-like conditions.  

2. In this judgment we deal with the implementation of the Mahatma

Gandhi  National  Rural  Employment  Guarantee  Act,  2005  and  the

Mahatma Gandhi National Rural Employment Guarantee Scheme framed

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under the provisions of Section 4 of the said Act.11              

Implementation of the MGNREG Scheme

3. The Mahatma Gandhi National Rural Employment Guarantee Act,

2005 (for short the ‘NREG Act’) has a very simple and straightforward

Preamble which says that it is:

“An  Act  to  provide  for  the  enhancement  of  livelihood  security  of  the households in rural areas of the country by providing at least one hundred days of guaranteed wage employment in every financial year to every household whose adult members volunteer to do unskilled manual work and for matters connected therewith or incidental thereto.”

For the effective implementation of the NREG Act, the Mahatma Gandhi

National Rural Employment Guarantee Scheme (for short ‘the Scheme’)

has been announced and is implemented throughout the country.

4. Learned  counsel  for  the  petitioner  submits  that  the  Scheme  is

demand driven and in terms of Section 3(1) read with Section 3(3) of the

NREG Act, every rural household registered for employment is entitled

as a  matter  of  right  to have one adult  person provided with unskilled

11 4. Employment Guarantee Schemes for rural areas - (1) For the purposes of  giving effect  to  the  provisions  of  Section  3,  every State  Government  shall, within six months from the date of commencement of this Act, by notification, make a Scheme, for  providing not less than one hundred days of  guaranteed employment in a financial  year to every household in the rural  areas covered under the Scheme and whose adult  members,  by application,  volunteer to do unskilled manual work subject to the conditions laid down by or under this Act and in the Scheme :

Provided that until any such Scheme is notified by the State Government, the Annual Action Plan or Perspective Plan for the Sampoorna Grameen Rozgar Yojana (SGRY) or the National Food for Work Programme (NFFWP) whichever is in force the concerned areas immediately before such notification shall be deemed to be the action plan for the Scheme for the purpose of this Act.

(2) The State Government shall publish a summary of the Scheme made by it in at least two local newspapers, one of which shall be in a vernacular language circulating in the area or areas to which such Scheme shall apply.

(3) The Scheme made under sub-section (1) shall provide for the minimum features specified in Schedule I.

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manual work and adequate wages under the Scheme for a minimum of

100 days in a year.12 In other words, if an adult member of a registered

rural household is voluntarily desirous of doing unskilled manual work,

he/she is guaranteed work for at least 100 days in a year.  

5. The first  submission of the petitioner in this context is that the

Government of India and the concerned State Governments are obliged to

ensure  that  adequate  budgetary  provision  is  made  for  the  financial

implementation of the Scheme. It is submitted that in addition to ensuring

adequate  financial  provision,  the  Government  of  India  as  well  as  the

concerned State Governments should not place any budgetary limit under

the Scheme if employment is sought over and above 100 days. The first

prayer, therefore,  is  for  issuing appropriate  directions to  the Union of

India in this behalf. While the guarantee is for 100 days in a year, the

State should encourage employment for more than that.

6. The second prayer made in this context is that even if there is no

budgetary limit, there is an informal cap on funds under the Scheme and

that  should  be  done  away  with.  To appreciate  what  is  sought  to  be 12 3. Guarantee of rural employment to households - (1) Save as otherwise provided, the State Government shall, in such rural area in the State as may be notified by the Central  Government,  provided to every household whose adult members volunteer to do unskilled manual work not less than one hundred days of such work in a financial year in accordance with the Scheme made under this Act.

(2) Every person who has done the work given to him under the Scheme shall be entitled to receive wages at the wage rate for each day of work.

(3) Save as otherwise provided in this Act, the disbursement of daily wages shall be made on a weekly basis or in any case not later than a fortnight after the date on which such work was done.

(4) The Central Government or the State Government may, within the limits of its  economic  capacity and development,  make provisions for  securing work to every adult member of a household under a Scheme of any period beyond the period guaranteed under sub-section (1), as may be expedient.

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conveyed  by  this  prayer  requires  an  understanding  of  the  procedure

followed  by  the  Government  of  India  in  the  implementation  of  the

Scheme.  

7. Reference  is  made  by  learned  counsel  to  the  “Operational

Guidelines  for  NREGA”  issued   in  2013  particularly  paragraph  6.9

thereof.13 This paragraph provides that the Labour Budget (or LB) should

be finalized by each State by 31st December for all Gram Panchayats (or

GP) in the State and placed before an Empowered Committee chaired by

the  Secretary  in  the  Ministry  of  Rural  Development.  This  projected

Labour  Budget  is  then  slashed  and  an  “agreed  to”  Labour  Budget  is

prepared which is only a percentage of the Labour Budget presented by

the State Government.  It is submitted that in the financial year 2014-15

the “agreed to” Labour Budget was 78% of the Labour Budget and for the

financial year 2015-16 the “agreed to” Labour Budget was 75% of the

Labour Budget. This is the informal cap on funds adverted to by learned

13 6.9.  SUBMISSION  OF  LABOUR  BUDGET  TO  MINISTRY  OF  RURAL DEVELOPMENT AND ITS SCRUTINY

The MIS entry made in regard to the LB at GP level will get aggregated at different levels.  The aggregated LB at District level is required by the Ministry by 31st December each year in format as per Annexure -10. Therefore, it needs to be ensured that all  data entry work for LB is completed in all  respect by 31 st December for all GP’s in State.  The LB entered in the MIS (as given in para 6.6 above) will be analysed by the Ministry and put up to the Empowered Committee chaired by Secretary, Ministry of Rural Development.  The Empowered committee will discuss the projected LB with the Secretary of the Rural Development of the concerned State and a final LB for the State as a whole will be agreed to.  The implication  of  this  is  that  district/Block/GP  wise  LBs  as  prepared  earlier  and submitted to the Ministry are required to be revised by the State Government and communicated  to  respective  districts/blocks  and  GPs.   The  LB  agreed  to, disaggregated district and month wise shall be entered at the State/District level in the MIS appropriately.  States are required to complete this exercise within 15 days from the date the decision regarding agreed to LB is conveyed to them.    

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counsel.

8. It is submitted that the consequence of this informal cap is that the

State Governments do not have an adequate fund at their disposal and

because  of  a  lack  of  funds,  they  are  unable  to  encourage  voluntary

unskilled manual labour.  Resultantly, they cannot reach the target of 100

days of employment per household per year. Since there is a shortage of

the ‘workforce’ caused by a lack of  funds,  the State Governments are

compelled  to  drop  some  development  works.   In  other  words,  fiscal

constraints result in a vicious cycle adversely impacting employment and

development.

9. The third prayer therefore relates to an additional consequence of

a  shortage  of  funds  and  a  depleted  ‘workforce’.  The  consequence,  as

projected  by  learned  counsel,  is  that  due  to  fiscal  constraints,  the

unskilled manual labour put in is not duly compensated by payment of

wages in time, the excuse of the State Governments being a lack of funds.

Consequently, the pending wage bill continues to rise and that increasing

liability  actually  makes  a  complete  mockery  of  the  Scheme  and  the

NREG Act since the dues are cleared much later than required by law.

This is a modern form of begar and is contrary to the spirit of Article 23

of the Constitution.

10. The fourth prayer made under this heading is for the Government

of  India  to  increase  the  minimum  statutory  obligation  of  100  days

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employment per rural household by another 50 days for drought affected

States  for  the  year  2016-17  and  to  release  the  additional  financial

requirements well in time.

11. Responding on behalf of the Union of India, the Joint Secretary in

the Ministry of Rural Development ably assisted us on facts on this issue.

She  is  extremely  well-versed  in  the  subject  and  we  acknowledge  her

valuable assistance in understanding the point of view of the Government

of India.

12. The  Government  of  India  acknowledges  that  the  minimum

guaranteed employment is 100 days in a year in terms of the NREG Act,

but  that  it  is  voluntary.  That  apart,  it  is  submitted  that  given  the

magnitude of the effort required, it is not easy to achieve the target. It is

not  denied  that  job  cards  have  been  issued  to  about  13.26  crore

households all  over the country and the number of active job cards is

about  5.72  crores  and  the  total  households  that  have  worked  in  the

financial  year  2015-16  is  about  4.77  crores.   The  total  number  of

households that have been provided 100 days of employment in the year

2015-16 is said to be 47,06,129 (as on 19th April, 2016) and in the drought

affected States the number of such households is said to be 27,64,508 (as

on 19th April, 2016). The petitioner has different figures as on a different

date but it is not necessary to decide which set of figures is correct since

the Government of India believes that in view of the large numbers, the

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implementation of the Scheme is dependent upon the efforts of the State

Governments.  The  Government  of  India  can  only  persuade  the  State

Governments  to  reach  the  minimum  statutory  guarantee  of  100  days

employment.  It  is  submitted  that  as  a  result  of  this  persuasion,

employment  provided  per  household  at  the  national  level  is  47  days

which is the highest achieved in the last six years. As far as the drought

affected States are concerned, the average days of employment provided

per household is 46.4 days. Based on this, it is submitted that all efforts

are being made to faithfully implement the Scheme in spirit and no effort

is spared in this regard.

13. With regard to the informal capping of the Labour Budget, it is

submitted that in terms of Section 14(6) of the NREG Act14 the District

Programme Coordinator  (who is  usually  the  Collector  in  the  district),

prepares a district specific budget in December for the coming financial

year.  This budget contains the details of anticipated demand for unskilled

manual work in the district. The district budgets for the State are then

collated at the State level and the State Government prepares its Labour

Budget. This is then communicated and presented to the Government of

India in the Ministry of Rural Development which then examines it in the

Programme Division in the Ministry in consultation with the concerned

14 14. District Programme Coordinator – (1) to (5) xxx (6)  The  District  Programme  Coordinator  shall  prepare  in  the  month  of

December every year a labour budget for the next financial year containing the details of anticipated demand for unskilled manual work in the district and the plan for engagement of labourers in the works covered under the Scheme and submit it to the district panchayat.

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State Governments. Thereafter, the budget is finalized by an Empowered

Committee  headed  by  the  Secretary  in  the  Ministry  of  Rural

Development.  It is submitted that the Labour Budget is essentially a tool

for the financial management of funds released and is purely indicative.

What the Empowered Committee does is to prepare a budget based on the

performance of the State Government and other related criteria and arrive

at a somewhat more realistic budget, which too is indicative.

14. It is submitted that there is no cap on the expenditure and States

may exceed the  budget  approved by the  Empowered Committee after

seeking  approval  of  the  said  Ministry.  A  comparative  statement  of

expenditure incurred over the last four financial years has been placed

before  us  and  a  perusal  thereof  does  show  that  there  has  been  a

fluctuation in expenditure over the years as follows:

YEAR BUDGET PROVISION

(in crores)

ACTUAL

EXPENDITURE  

(in crores) 2011-12 31,000.00 37,072.82 2012-13 30,287.00 39,778.29 2013-14 33,000.00 38,601.59 2014-15 33,000.00 36,032.48 2015-16 37,345.95 42,253.75

15. With  regard  to  the  shortage  of  funds,  it  is  submitted  that  the

Ministry of Rural Development has been in touch with the Ministry of

Finance to ensure that there is no such shortage.  While a request  was

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made for the release of Rs. 5,000 crores to the Ministry of Finance what

was in fact released is only Rs. 2,000 crores. There is therefore a tacit

admission that the Ministry of Finance does not release funds in adequate

amounts or in time for the effective implementation of the Scheme. In her

presentation, the Joint Secretary in the Ministry of Rural Development

submitted  that  efforts  are  also  being  made  through  the  Ministry  of

Agriculture for the release of funds.

16. It is submitted that notwithstanding this, some States have in fact

exceeded the budget approved by the Empowered Committee. There is

therefore no question of any informal capping of funds.

17. With  regard  to  the  pending  wage  bill  under  the  Scheme,  it  is

admitted that till 31st March, 2016 there is a pending balance of about Rs.

8,000 crores.  However, it  is  stated  in  the  fourth affidavit  filed by the

Government of India on or about 11th April, 2016 that an amount of Rs.

11,030 crores will be released to the States within one week subject to

fulfillment of standard conditions by the States. This will take care of the

pending wage liability of Rs. 7,983 crores as on 31st March, 2016 for the

financial  year  2015-16.  This  includes the wage liability of  Rs.  2,723

crores in the ten drought affected States that we are concerned with where

the Ministry of  Rural  Development  has allowed additional  50 days of

employment  to  the  concerned  households.  It  is  further  stated  in  the

affidavit that an amount of Rs. 3,047 crores will be released to the States

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for  implementing  the  Scheme  in  April  2016  (inclusive  of  wages  and

material component). The pending liability of the material component of

Rs. 4,359 crores for the financial year 2015-16 (as on 31st March, 2016)

will be released in June, 2016.  In other words, it is admitted that for the

financial year 2015-16 there is an existing wage and material component

liability in excess of Rs.12,000 crores.   

18. As  far  as  the  release  of  funds  for  2016-17  is  concerned,  it  is

submitted by learned counsel for the petitioner that in terms of the Master

Circular  under  the  Scheme,  funds  are  required  to  be  released  in  two

tranches,  the first  tranche in the first  week of April  (for the period 1st

April  to  30th September)  and  the  second  tranche  in  the  first  week  of

October (for the period 1st October to 31st March).  It is submitted that

therefore the release of Rs. 3,047 crores for implementing the programme

only for April 2016 is contrary to the Master Circular.

19. It is explained in the fourth affidavit of the Government of India

that the first tranche is actually released in two parts. The first part of the

first tranche is released in the first week of April because of the vote on

account while the second part of the first tranche is released in June after

the regular budget is passed in Parliament. It is, therefore, submitted that

while there has been a delay in the release of funds, that has now been

taken care at least for the financial year 2015-16 (with regard to the wage

bill) and for the month of April (both wage bill and material component)

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in the financial year 2016-17.

20. With regard to implementing and extending the Scheme for  an

additional  50  days  in  drought  affected  States  (over  and  above  the

guarantee of 100 days) we are informed by the Joint Secretary that in the

drought affected States, employment is guaranteed for 150 days in a year

and  funds  will  be  made  available  to  every  household  whose  adult

members volunteer to do unskilled manual work under the Scheme. The

extension of the Scheme for a period of 50 days over and above 100 days

is therefore now not an issue.  

Discussion and conclusions

21. A review  of  the  NREG  Act  indicates  that  under  Section  3(3)

thereof after the work is done, the disbursement of wages shall be on a

weekly basis and in any event within a fortnight after the date on which

the work is done. However, if no work is provided to an applicant within

15 days, then as per Section 7 of the NREG Act the applicant shall be

entitled to receive an unemployment allowance. Consequently, the NREG

Act provides for a guarantee of employment, payment for the work within

a week and in any event within a fortnight,  and if  employment is not

provided  then  a  payment  of  unemployment  allowance.  What  if  the

payment of wages is delayed in the first instance?  

22. The  Guidelines  on  Compensation  for  delayed  wage  payment

circulated  by  a  letter  dated  12th June,  2014  by  the  Ministry  of  Rural

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Development  draws  attention  to  paragraph  29  of  Schedule  II  of  the

NREG Act which provides that the workers are entitled to receive ‘delay

compensation’ at a rate of 0.05% of the unpaid wages per day for the

duration  of  the  delay  beyond  the  sixteenth  day  of  the  closure  of  the

Muster Roll.  Guideline No.2 in this regard reads as follows:-

“2. Compensation due to delay in payment of wages  

Para 29, Schedule II of MGNREGA 2005 has laid down a detailed procedure for establishing a delay compensation system.  As per the system MGNREGA workers are entitled to receive delay compensation at a rate of 0.05% of the unpaid wages per day for the duration of the delay beyond the sixteenth day of the closure of the MR.”

The relevant part of paragraph 29 of Schedule II of the NREG Act reads

as follows:  

29. Wage payment (1) In case the payment of wages is not made within fifteen days from the date of closure of the muster roll, the wage seekers shall be entitled to receive payment of compensation for the delay, at the rate of 0.05% of the unpaid wages per day of delay beyond the sixteenth day of closure of muster roll.  (a)  Any delay in payment of compensation beyond a period of fifteen days from the date it becomes payable, shall be considered in the same manner as the delay in payment of wages.    (b) to (f)  xxxx (2) Effective implementation of sub-paragraph (1) shall be considered necessary for the purposes of the section 27 of the Act.  

23. The meat of the matter lies in three issues: (i) Informal capping of

funds through the Labour Budget and the ‘agreed to’ budget process; (ii)

Delayed  release  of  payments  both  for  wages  and  materials;  and  (iii)

Ineffective monitoring of the Scheme.   

24. As  far  as  the  informal  cap  on funds  is  concerned,  no  doubt  a

process has to be followed by the Government of India for the release of

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funds. The issue really is one of accepting a budget presentation as it is

made by the State Government. The Government of India believes that

the budget presentation cannot be accepted as it is and the Empowered

Committee must consider the totality of facts and take a final decision.  

25. It  seems to us  that  a  comparative  table  on the annual  demand

made by the States and the final decision of the Empowered Committee

must be available, but the relevant figures have not been placed before us.

However, during the course of hearing, it was the admitted position that

there is a reduction from the demand made to the actual approval and that

is  based,  inter  alia,  on  the  performance  of  the  State  Government  in

implementing  the  Scheme.  This  is  also  apparent  from  a  reading  of

paragraph  7.1.1  of  the  Master  Circular  (FY 2016-2017)  Guidance  for

Programme Implementation issued by the Ministry of Rural Development

of the Government of India.15

26. There is, therefore, a chicken and egg situation – the release of

funds by the Government of India is low because the performance of the

State Government is poor and the performance of the State Government

is poor because the release of funds by the Government of India is low.

The  suffering  is  of  the  unemployed  unskilled  manual  labourer  as  an

individual and the society as a whole.   

27. Regarding  the  informal  cap  on  funds,  learned  counsel  for  the

15 7.1.1 Funds are released to the States/UTs normally in two tranches on the basis of agreed to Labour Budget (LB) and the performance of the States/UTs during the year till NEFS comes into effect.  

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petitioner  sought  to  substantiate  his  contention  by  referring  to  the

Minutes of the meeting of the Empowered Committee held on 21st March,

2016 for the State of Madhya Pradesh for FY 2016-17. Paragraph 4 of the

Minutes is illustrative of the view of the Government of India and this

records:  “Under  no  circumstances,  the  State  will  cross  the  approved

Labour Budget for 2016-17 without the prior approval of the Ministry.”

28. It seems to us that the petitioner is perhaps reading too much into

these Minutes. The reason we say so is because the learned Additional

Solicitor General has drawn out attention to a subsequent letter dated 11th

April, 2016 sent by the Secretary in the Ministry of Rural Development to

the  Chief  Secretary  of  about  10  States  (including  Madhya  Pradesh)

wherein it is categorically stated that: “the agreed to Labour Budget for

2016-17 does not imply that work cannot be provided beyond the Labour

Budget  if  there  is  a  genuine  demand  for  work.”  Also,  in  the  fourth

affidavit filed by the Union of India it is stated as follows:

“8. That there has been no restriction on registration of demand for work and states have been allowed to go beyond estimated labour budget in FY 2015-16. The labour budget is just a rough estimation of the demand and is one of the tools for financial management.

9.  That  13 States i.e.  West Bengal,  Uttarakhand, Odisha,  Meghalaya,  Uttar Pradesh,  Assam, Rajasthan, Nagaland,  Kerala,  Sikkim, Gujarat,  Punjab and Tripura have generated persondays beyond the estimated labour budgets for FY  2015-16.   These  states  include  three  drought  affected  states  namely Odisha, Uttar Pradesh and Rajasthan.”

29. Keeping the above in mind and the submissions made, it appears

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to us that there is no informal capping of funds although it does appear

that the Government of India is not prone to easily release funds for the

projects  under  the  Scheme.  This  really  takes  us  to  the  second  issue

namely the delayed release of payments both for wages and materials.

30. According to the petitioner delayed release of payments has an

adverse impact in the sense that it acts as a disincentive to a person taking

on any work under the Scheme. If a person does some work under the

Scheme and is not sure when he or she is likely to get the payment, there

will definitely be some reluctance to seek employment under the Scheme.

31. With reference to FY 2016-17 the Union of  India states  in the

fourth  affidavit  filed  on  or  about  11th April,  2016  that  an  amount  of

Rs.11,030 crore will be released to the States within one week subject to

certain  conditions  and the release  will  take  care  of  the  pending wage

liability  of  Rs.7,983  crore  (as  on  31st March,  2016)  pertaining  to  FY

2015-16.  This is a clear admission on the part of Government of India

that huge amounts remain unpaid towards wages The unfortunate part is

that an amount of Rs.2,723 crore from this is with respect to 10 drought

affected States where the unemployed perhaps need their wages the most.

32. In  Sanjit  Roy  v.  State  of  Rajasthan16 this  Court  held  that

providing  labour  for  less  than  the  minimum wage  amounts  to  forced

labour and as such violates of Article 23 of the Constitution. It was said

by Justice Bhagwati as follows:

16 (1983) 1 SCC 525

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“…where  a  person provides  labour  or  service  to  another  for  remuneration which is less than the minimum wage, the labour or service provided by him clearly falls within the meaning of the words “forced labour” and attracts the condemnation of Article 23. Every person who provides labour or service to another is entitled at the least to the minimum wage and if anything less than the  minimum  wage  is  paid  to  him,  he  can  complain  of  violation  of  his fundamental right under Article 23 and ask the court to direct payment of the minimum wage to him so that the breach of Article 23 may be abated.”

What we are concerned with in the present case is not strictly payment

less than the minimum wage but delayed payment to crores of people. We

can understand delayed payment of a few days or weeks to a few people,

but in this case it is delayed payment of a few weeks (if not more) to

lakhs of people. Given the enormous number of persons involved, this is

really unfortunate.

33. In Sanjit Roy, a strange submission was made by the State. It was

submitted  that  it  would not  be possible  to  pay the minimum wage to

persons  undertaking  famine  relief  work  and  to  persons  affected  by

drought and scarcity conditions since that would cripple the potential to

provide employment to the affected persons. Rejecting this contention,

Justice Bhagwati held:

“…when the State undertakes famine relief  work with a view to providing help to the persons affected by drought and scarcity conditions, it would be difficult for the State to comply with the labour laws, because if the State were required  to  observe  the  labour  laws,  the  potential  of  the  State  to  provide employment to the affected persons would be crippled and the State would not be able to render help to the maximum number of affected persons and it was for this reason that the applicability of the Minimum Wages Act, 1948 was excluded  in  relation  to  workmen  employed  in  famine  relief  work.  This contention, plausible though it may seem is, in my opinion, unsustainable and cannot be accepted.  When the State undertakes famine relief  work it  is no

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doubt  true that it  does so in  order to provide relief  to persons affected by drought and scarcity conditions but, nonetheless, it is work which enures for the benefit  of the State representing the society and if  labour or service is provided by the affected persons for carrying out such work, there is no reason why the State should pay anything less than the minimum wage to the affected persons. ……Whenever any labour or service is taken by the State from any person, whether he be affected by drought and scarcity conditions or not, the State must pay, at the least, minimum wage to such person on pain of violation of Article 23….”

34. Justice Pathak concurred with the view of Justice Bhagwati but

preferred to rest his decision on a breach of Article 14 of the Constitution

and not Article 23 thereof. Justice Pathak held:  

“The circumstance that employment has been given to persons affected by drought and scarcity conditions provides only the reason for extending such employment. In other words, the granting of relief to persons in distress by giving them employment constitutes merely the motive for giving them work. It cannot affect their right to what is due to every worker in the course of such employment. The rights of all the workers will be the same, whether they are drawn from an area affected by drought and scarcity conditions or come from elsewhere. The mere circumstance that a worker belongs to an area effected by drought and scarcity conditions can in no way influence the scope and sum of those  rights.  In  comparison  with  a  worker  belonging  to  some  other  more fortunate area and doing the same kind of work, is he less entitled than the other to the totality of those rights? Because he belongs to a distressed area, is he liable, in the computation of his wages, to be distinguished from the other by the badge of his misfortune? The prescription of equality in Article 14 of the Constitution gives one answer only, and that is a categorical negative.”

35. It  is  quite  clear,  therefore,  that  when  the  rights  of  tens  of

thousands of people are affected by delayed payment of their legitimate

dues, there is a clear constitutional breach committed by the State – be it

the Government of India or a State Government.  

36. As  mentioned  above,  a  worker  is  entitled  to  compensation  @

0.05% per  day  for  delayed  payment  of  the  wages  due.  We are  quite

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pained to note that the Government of India has made no provision for

this compensation while releasing the wages for 2015-16 of Rs. 7,983

crores.  This  is  extremely unfortunate  and certainly does not  behove a

welfare  State  in  any  situation,  more  so  in  a  drought  situation.  Social

justice has been thrown out of the window by the Government of India.   

37. To make matters worse, the Union of India has admitted in the

fourth affidavit that the material component of FY 2015-16 (as on 31st

March, 2016) is Rs. 4,359 crore for the entire country which includes the

material  liability of  Rs.  1,995 crore in the 10 drought  affected States.

This amount, according to Government of India will be released in June

2016. Why should there be a delay in this?

38. We are unable to appreciate the unconscionable delay on the part

of the Government of India in the release of funds both under the wage

component as well as under the material component.  It is quite clear, and

there  is  no  worthwhile  justification  forthcoming  from  the  learned

Additional Solicitor General,  that delay in payment of wages acts as a

disincentive to those persons who are intending to take the benefit of the

Scheme.  We have  not  been  given  any  explanation  whatsoever  why a

person  would  want  to  work  without  wages  or  at  least  work  with  an

uncertainty in timely receipt of wages. It just does not stand to reason.

39. The Union of India has also stated in the fourth affidavit that an

amount of Rs. 3,047 crore will be released to the States for implementing

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the Scheme in April 2016 and that this amount would be inclusive of both

the wage and material components.

40. In terms of the Master Circular (2016-17) the first tranche of the

“agreed to” Labour Budget is required to be released in April 2016 (for

the  period  ending  in  September).  In  terms  of  paragraph  7.1.2  of  the

Master Circular the release would be made after adjusting for unspent

balance available with the Districts/States and considering the pending

liabilities if any.17  As is apparent from the fourth affidavit filed by the

Government of India the possibility of any unspent balance perhaps does

not exist  but what does exist is the pending liabilities.   Therefore, the

amount that is released in the first tranche would actually be much less

than the required amount for the first  six months of the financial year

since the pending liabilities themselves are more than Rs. 12,000 crore.

Clearly the implementation of the Scheme in the first six months of the

financial year 2016-17 would begin with a deficit and the actual amount

required for the first  six months of the financial year (even as per the

“agreed to” Labour Budget) would not be fulfilled.  In our opinion, this is

hardly any encouragement to persons willing to take advantage of the

Scheme.

41. The fourth affidavit goes on to say that the first tranche will be

17 1st tranche is released to States/Districts in the month of April. The quantum of 1st tranche is based on the number of person days projected by the State/UT for the first six months of the year (up to September) in the Labour Budget. However, it would not exceed 50 percent of the total person days agreed to in the Labour Budget.  The first  tranche is released after adjusting unspent balance available with the districts/States and considering the pending liabilities, if any.

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released in two installments – the first installment being released in April

2016  which  would  apparently  take  care  of  the  implementation  of  the

Scheme for the month of April and the second tranche would be released

in June 2016 after the regular budget is passed in Parliament.  The reason

given in the fourth affidavit  for  the release of the first  tranche in two

installments is because of the vote on account.  It is a matter of common

knowledge that the annual budget is presented every year on the last day

of February and it  naturally takes time for the budget proposals to be

accepted by Parliament and hence the need for a vote on account. That

being so it is rather odd that the Master Circular proceeds on the basis

that the entire quantum of the first tranche will be released in April 2016

– something that is apparently not possible. There is no mention of any

vote on account in the Master Circular  and to this extent an incorrect

picture of the release of funds is held out.  All that we can say is that this

is an unfortunate way of implementing a social welfare Scheme intended

for the benefit of unemployed persons.

42. We are informed by the Joint Secretary that the Labour Budget for

2016-17 is calculated on 314 crore person days of employment.  This has

been scaled down by the Empowered Committee and the “agreed to”

Labour  Budge for  2016-17 is  calculated  on 217 crore  person days  of

employment.   Therefore,  (roughly) only 70% of the Labour Budget is

accepted by the Empowered Committee based on the past performance of

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the States.  On this basis, (roughly) about Rs. 20,000 crores ought to be

released by the Government of India in the first tranche towards financial

implementation of the Scheme. The amount actually released is only Rs.

3047 crores. The implicit assurance is that the balance amount of about

Rs.  17,000  crores  will  be  made  over  the  States  in  June,  2016  in  the

second installment of the first tranche after the annual budget is approved

by Parliament. We can only wait and hope.   

43. As far as the third issue of monitoring the Scheme is concerned

the NREG Act makes adequate provision in this regard. Section 10 of the

NREG Act  provides for  constituting a  Central  Employment Guarantee

Council (for short ‘the CEGC’).18  As per Section 11 of the NREG Act, 18 10. Central Employment Guarantee Council - (1) With effect from such date as the Central Government may, by notification specify, there shall be constituted a Council to be called the Central Employment Guarantee Council to discharge the functions, and perform the duties, assigned to it by or under this Act.

(2) The headquarters of the Central Council shall be at Delhi. (3) The Central Council shall consist of the following members to be appointed

by the Central Government, namely:— (a) a Chairperson; (b) not more than such number of representatives of the Central Ministries  including the Planning Commission not below the rank of Joint Secretary to the Government of India as may be determined by the Central Government; (c) not more than such number of representatives of the State Governments  as may be determined by the Central Government; (d) not more than fifteen non-official members representing Panchayati Raj  Institutions, organisations of workers and disadvantaged groups : Provided that  such non-official  members  shall  include two chairpersons of

District Panchayats nominated by the Central Government by rotation for a period of one year at a time :

Provided  further  that  not  less  than  one-third  of  the  non-official  members nominated under this clause shall be women :

Provided also that not less than one-third of the non-official members shall be belonging to the Scheduled Castes,  the Scheduled Tribes,  the Other Backward Classes and Minorities;

(e) such number of representatives of the States as the Central Government may, by rules, determine in this behalf;

(f)  a  Member-Secretary  not  below  the  rank  of  Joint  Secretary  to  the Government of India.

(4)  The terms and conditions  subject  to  which the  Chairperson and other members  of  the  Central  Council  may  be  appointed  and  the  time,  place  and procedure of the meetings (including the quorum at such meetings) of the Central

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the functions of the CEGC include, amongst others, establishing a central

evaluation and monitoring system; advising the Central Government in

all matters concerning the implementation of the NREG Act; monitoring

the implementation of the NREG Act; and preparing annual reports to be

laid before Parliament by the Central Government on the implementation

of the Act. It is not clear to us whether the CEGC is in existence and

whether any monitoring mechanism is in place. A  visit  to  the  official

website of the NREG Act19 indicates that as of now there is no CEGC in

place.   

44.  Similarly, the State Government is required to constitute a State

Employment  Guarantee  Council  under  Section  12  of  the  Act.20  The Council shall be such as may be prescribed by the Central Government. 19 nrega.nic.in  20 12. State Employment Guarantee Council - (1) For the purposes of regular monitoring and reviewing the implementation of this Act at the State level, every State Government shall  constitute a State Council  to be known as the ………. (name of the State) State Employment Guarantee Council with a Chairperson and such number of official members as may be determined by the State Government and  not  more  than  fifteen  non-official  members  nominated  by  the  State Government  from  Panchayati  Raj  institutions,  organisations  of  workers  and disadvantaged groups :

Provided that not less than one-third of the non-official members nominated under this clause shall be women :

Provided further that not less than one-third of the non-official members shall be belonging to the Scheduled Castes, the Scheduled Tribes, the Other Backward Classes and Minorities.

(2) The terms and conditions subject to which the Chairperson and members of the State Council may be appointed and the time, place and procedure of the meetings (including the quorum at such meetings) of the State Council shall be such as may be prescribed by the State Government.

(3) The duties and functions of the State Council shall include— (a) advising the State Government on all matters concerning the Scheme and its implementation in the State; (b) determining the preferred works; (c) reviewing the monitoring and redressal mechanism from time to time and recommending improvements; (d) promoting the widest possible dissemination of information about this Act and the Schemes under it; (e) monitoring the implementation of this Act and the Schemes in the State and coordinating such implementation with the Central Council; (f) preparing the annual report to be laid before the State Legislature by the State Government;

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duties  and  functions  of  the  State  Council  include  advising  the  State

Government  on  all  matters  concerning  the  Scheme  and  its

implementation in the State, monitoring the implementation of the NREG

Act and preparing an annual report to be laid before the State Legislature

by  the  State  Government.   Again  we  have  not  been  informed  of  the

existence of any such State Council or whether the NREG Act is being

faithfully implemented both by the Government of India and by the State

Government.

45. At  this  stage,  we  may  mention  that  the  Joint  Secretary  in  the

Ministry of Rural Development informed us that the Government of India

has  introduced  a  potentially  exciting  Scheme  for  prompt  payment  of

wages to the persons availing the benefit of the Scheme. A system called

the National Electronic Fund Transfer System or Ne-FMS system is in

place in about a dozen States.  The objective of this system is to ensure

that  the wage component under the Scheme is released directly to the

account of the person concerned based on a Funds Transfer Order to be

generated by the implementing agencies of the States. The benefit of the

system is that the person will be assured of timely payment of wages after

the  pay  order  generation.  We have  been  informed  that  the  Ne-FMS

system is  in place in several  States  with effect  from 12 th April,  2016.

(g) any other duty or function as may be assigned to it by the Central Council or the State Government. (3) The State Council shall have the power to undertake an evaluation of the

Schemes operating in the State and for that purpose to collect or cause to be collected statistics pertaining to the rural economy and the implementation of the Schemes and Programmes in the State.

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Although it is early days, we are told by the learned Additional Solicitor

General that the system is working quite satisfactorily, although this is

disputed by the petitioner who says that the system was first introduced in

Kerala  from 1st January, 2016 but  even then there are  huge delays  in

making the payment of wages.   

Directions

46. On the basis of the provisions of the NREG Act and the material

placed before us, it is appropriate that the following directions are issued:

1. The State Governments ought to present a realistic budget which

should  then  be  pragmatically  considered  by  the  Empowered

Committee. This procedure will avoid any unnecessary controversy

between the State Governments and the Government of India about

the release of funds under the Scheme.  

2. The  Government  of  India  is  directed  to  release  to  the  State

Governments adequate funds under the Scheme in a timely manner

so  that  the  ‘workforce’  is  paid  its  wages  well  in  time.  It  is

regrettable that the pending wage bill for 2015-16 was cleared only

during  the  pendency  of  this  petition.  The  Government  of  India

must shape up in this regard.

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3. The Government of India is directed to ensure that compensation

for  delayed payment  is made over to  the workers whose wages

have been delayed beyond 15 days as postulated by paragraph 29

of  Schedule  II  of  the  NREG  Act  and  the  Guidelines  for

Compensation formulated pursuant thereto.            

4. Both  the  State  Governments  and  the  Government  of  India  are

directed to make all efforts to encourage needy persons to come

forward and take advantage of the Scheme. A success rate below

50% is nothing to be proud of.  

5. The Government  of  India  is  directed  to  ensure  that  the  Central

Employment Guarantee Council is immediately constituted under

Section  10  of  the  NREG  Act.   In  any  event,  the  Central

Employment  Guarantee  Council  should  be  constituted  within  a

maximum of 60 days from today.        

6. The  Government  of  India  is  directed  to  proactively  request  the

State Governments to establish the State Employment Guarantee

Council under Section 12 of the Act within a period of 45 days

from today.  The effective implementation of the NREG Act will

certainly not  be possible  unless these  monitoring and reviewing

authorities faithfully and urgently established by the Government

of India and the State Governments.      

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7. Since  the  NREG  Act  is  a  social  welfare  and  social  justice

legislation the Government of India must ensure that its provisions

are faithfully implemented by all concerned.  

.……………………..J  (Madan B. Lokur)

New Delhi               ……………....………J May 13, 2016                     (N.V. Ramana)

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 857 OF 2015

Swaraj Abhiyan – (IV)               .…Petitioner

versus

Union of India & Ors.                             .…Respondents  

J U D G M E N T

Madan B. Lokur, J.

1. In  three  earlier  decisions  concerning  the  prevailing  drought  or

drought-like situation, we had stressed the obligation of the Government

of  India  complying  with  all  the  provisions  of  the  laws  enacted  by

Parliament,  namely, the Disaster  Management  Act,  2005,  the  National

Food  Security  Act,  2013  and  the  Mahatma  Gandhi  National  Rural

Employment  Guarantee  Act,  2005.  This  will,  of  necessity,  require

establishing and constituting bodies and authorities provided for by law

and  making  available  the  necessary  finances  for  implementing  and

abiding by the law. The State cannot say that it is not bound to follow the

law and cannot adhere to statutory provisions enacted by Parliament and

create a smokescreen of a lack of finances or some other cover-up. The

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rule of law binds everyone, including the State.  

2. In  this  decision,  we  concern  ourselves  with  the  remaining

substantive issues raised by the petitioner Swaraj Abhiyan.

Relief for Crop Loss

3. The grievance of Swaraj Abhiyan is that the ‘Crop Input Advance’

or the ‘Agricultural Input Subsidy’ offered by the Government of India is

far  too  low  and  in  the  event  of  a  drought,  the  monetary  relief

(compensation or ex gratia) received by a farmer does not even cover the

cost of cultivation of crops.  Reference is made to the cost of cultivation

of some principal crops in India relating to 2015-16 (average 2010-11 to

2012-13)  obtained  from the  Comprehensive  Scheme  for  Studying  the

Cost  of  Cultivation  of  Principal  Crops  in  India  by  the  Directorate  of

Economics  and  Statistics  in  the  Ministry  of  Agriculture.  By  way  of

illustration, it has been pointed out that in respect of some Kharif crops

such as paddy, the cost  per  hectare  is  Rs.  42,441; for  maize it  is  Rs.

31,492 per hectare; for jowar it is Rs. 27,292 per hectare; for bajra it is

Rs. 19,558 per hectare.   

4. According to the petitioner, in terms of the norms of assistance

from  the  States  Disaster  Response  Fund  (SDRF)  and  the  National

Disaster Response Fund (NDRF) the input subsidy where the crop loss is

33%  and  above  for  agriculture  crops,  horticulture  crops  and  annual

plantation crops is Rs. 6,800/- per hectare in rainfed areas and restricted

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to sown areas; Rs.13,500/- per hectare in assured irrigated areas, subject

to  minimum assistance not  less  than Rs.  1,000 and restricted to sown

areas. Reference in this regard is made to a letter dated 8 th April, 2015

issued by the Ministry of Home Affairs (Disaster Management Division).

This is said to be clearly insufficient.   

5. On these broad facts, the first prayer made by the petitioner is that

the relief or subsidy is extremely low and only where the crop loss is 33%

and above.  The amount should be realistic and there is no reason why an

arbitrary figure of 33% of crop loss should be fixed.  It is submitted that

the subsidy is a safety net for farmers in times of distress and therefore

the compensation should be far  more realistic  in the event of  a failed

crop.  

6. The second prayer is connected with the first prayer and is to the

effect that farmers should be given immediate relief for crop loss for the

year  2015-16.  The  relief  or  subsidy  should  not  be  only  adequate  but

should also be given timely with the entire process being transparent so

that there is no allegation of corruption.  

7. In response, the Union of India submits that under Section 46 of

the  Disaster  Management  Act,  2005,  the  Central  Government  has

constituted a National Disaster Response Fund (NDRF) for meeting any

threatening  disaster  situation  or  disaster.   This  is  exclusively  for  the

purposes of alleviating the adverse impact of a disaster.  Similarly, under

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Section 48 of the Disaster Management Act, the State Governments have

constituted a fund called the State Disaster Response Fund (SDRF).

8. The 14th Finance Commission has recommended an allocation of

Rs. 61,219 crores as the aggregate corpus for the SDRF for the period

2015-20. The norms for providing financial assistance have been revised

on  8th April,  2015  (as  mentioned  above)  and  the  Agricultural  Input

Subsidy that was earlier Rs. 4,500 per hectare with the crop loss being

50% and above has since been revised upward by an order dated 8th April,

2015 to Rs. 6,800 per hectare where a crop loss is 33% and above in

respect of rainfed areas.  Similarly, there has been an upward revision in

respect of irrigated areas and perennial areas.  It is therefore submitted

that  adequate  provision  has  been  made  in  this  regard  and  the  State

Governments, even in the drought affected States, are entitled to utilize

the funds available in terms of the norms laid down.

9. It is further submitted that in addition to the amount recommended

by the 14th Finance Commission towards the SDRF, the Government of

India has also approved a sum of about Rs. 12,774 crores from the NDRF

to the State Governments in the grip of drought.  This amount is also

considerably enhanced from the amount made available in previous years.

10. It  is  further  submitted  that  the  norms  are  not  a  compensatory

measure but  are  a measure of  immediate relief.   Therefore,  to require

payment of the exact amount of subsidy as determined by the Directorate

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of Economics and Statistics in the Ministry of Agriculture would not be

appropriate.

11. With regard to the funds in the NDRF, it  is  submitted that  the

basis of the fund is the estimated tax revenue collection in the form of

National  Calamity  Contingency  Duty  imposed  on  Union  Excise  and

Customs and releases are made to the State Governments by the Ministry

of Finance of the Government of India from this provision.

Fodder Banks

12. The grievance of the petitioner in this regard is that even though a

Fodder Bank has been established under the Centrally Sponsored Fodder

and  Feed  Development  Scheme and  the  National  Mission  for  Protein

Supplements  for  the  areas  notified  as  drought  affected  in  2012,  the

benefits under this Scheme and Mission have not been extended to all

drought affected areas in the country for the year 2015-16 and 2016-17. It

is prayed that the Scheme and Mission be extended to all drought affected

areas and there should be no financial cap on support for this component.

It is further submitted that in anticipation of drought the Union of India

had issued a detailed Advisory on 12th September, 2012 and that should

be implemented in letter and spirit.

13. The purpose of the Fodder Bank is to meet the requirement of

livestock  in  areas  notified  as  drought  affected.   Fodder  Banks  are

expected  to  facilitate  procurement  and storage  of  fodder  from surplus

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areas or areas where rainfall is satisfactory and this fodder can be than

distributed to cattle camps and deficient  areas.   To reduce the cost  of

establishment of a Fodder Bank, it appears to have been recommended

that low capacity tractor mountable fodder block machine should be used

as far as feasible.   

14. The prayer  of  the  petitioner  in  this  respect  is  for  the  effective

management of the Fodder Banks in the drought affected areas and for

the  establishment  of  Fodder  Banks  where  no  such  bank  has  been

established in a drought affected area.

15. The  response  of  the  Union  of  India  is  that  apart  from  the

above-mentioned  Scheme  and  Mission,  the  Department  of  Animal

Husbandry, Dairying and Fisheries  is  implementing the  National  Live

Stock Mission and one of the sub-missions of this Mission is feed and

fodder  development.  The  State  Governments  can  avail  financial

assistance under the sub-mission.  

16 In addition, the Central Government has approved an Additional

Fodder Development Programme as a special  scheme of the Rashtriya

Krishi Vikas Yojna for the year 2015-16 to mitigate the adverse impact of

drought in drought affected districts/blocks of the country.  Funds have

been allocated for this purpose to various States as per the cost norms.

Crop Loan Re-structuring and Relief

17. In this regard, the submission of the petitioner is that deferment of

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arrears and re-structuring of loans is an important aspect of relief for the

drought  affected  farmers  and  necessary  directions  should  be  given  to

Rural  and  Cooperative  Non-Scheduled  Banks,  Scheduled  Banks

including Nationalized Banks etc. to abide by the guidelines issued by the

Reserve  Bank  of  India.   The  State  Level  Bankers  Committees  have

considerable  discretion  in  the  matter  of  deferment  of  arrears  and

re-structuring of  loans with the result  that  re-structuring has not  taken

place as per the guidelines in several States.  The prayer of the petitioner

therefore  is  to  have  a  more  realistic  deferment  of  arrears  and

re-structuring of loans by all the concerned banks, particularly in respect

of farmers in drought affected areas.

18 In response, it is stated by the Union of India that the Reserve

Bank of India has issued a Master Circular on 1st July, 2015 (updated up

to  21st August,  2015)  while  NABARD  has  issued  a  circular  on  26th

August,  2015 addressed to  all  Cooperative  Banks and Regional  Rural

Banks  recommending  a  moratorium  of  one  year  in  re-structuring  the

loans of borrowers affected by a natural calamity.  However, over-due

loans are not included since they are not attributed to a natural calamity.

Notwithstanding  this,  there  is  no  prohibition  on  any  bank  from

re-structuring  any  loan  including  any  over-due  loan  subject  to  the

guidelines  of  the  Reserve  Bank of  India  and in  accordance with their

internal policy guidelines.   

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Discussion and conclusions

19. It  is  quite  apparent  from the submissions made and the reliefs

claimed that  essentially  the  concerns  raised  pertain  to  policy, whether

economic  and  fiscal  policy  or  policy  impacting  on  drought  effected

persons. We are certainly not equipped to commend the view expressed

by the petitioner or  the view expressed by the State on issues of  this

nature.  It is really for experts in the field to take a call, for example, on

what percentage of crop loss deserves to be addressed, whether the crop

loss  should  be  33% and  above  or  50% and  above.   The  quantum of

monetary relief to be given to a farmer is again a matter of policy.

20. Similarly,  issues  regarding  establishing  fodder  banks  or

restructuring  bank  loans,  the  extent  to  which  restructuring  should  be

carried out are all issues that are required to be decided by experts.  Even

then, within the community of experts, there are likely to be differences

of opinion.  While one set of experts might fix crop loss for relief at 50%

another set  of experts might consider the crop loss for relief above or

below  50%.   This  being  the  position,  there  cannot  be  any  judicially

manageable standards for determining issues of policy and it would be

hazardous if not dangerous for us to venture into such areas when we lack

the expertise to do so.

21. This Court has, on several occasions, dealt with issues of policy

whether having an economic and fiscal flavour or even mundane matters

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of policy including, for example, transfer of government servants from

one place to another.  This Court has not interfered in such matters unless

the policy is demonstrably perverse.   

22. Fairly recently, in Essar Steels Ltd. v. Union of India21 this Court

summed up the position in law as follows:

“Broadly, a  policy  decision  is  subject  to  judicial  review on  the  following grounds: (a) if it is unconstitutional; (b) if it is de’hors the provisions of the Act and the Regulations; (c) if the delegatee has acted beyond its power of delegation; (d) if the executive policy is contrary to the statutory or a larger policy.”

23. There  are  several  decisions  to  the  same  effect  including,  for

example, another recent decision of this Court Centre for Public Interest

Litigation v. Union of India22 and some earlier decisions such as  M.P.

Oil  Extraction  v.  State  of  Madhya  Pradesh23,  Villianur  Iyarkkai

Padukappu Maiyam v. Union of India24 and of course the Constitution

Bench decision in Peerless General Finance and Investment Co. Ltd. v.

Reserve  Bank  of  India25.  For  the  present  purposes,  the  summation

provided in Essar Steels is quite clear:

“Executive  policies  are  usually  enacted  after  much  deliberation  by  the Government. Therefore, it would not be appropriate for this Court to question the wisdom of the same, unless it is demonstrated by the aggrieved persons that the said policy has been enacted in an arbitrary, unreasonable or mala fide manner, or that it offends the provisions of the Constitution of India.”

21 2016 (4) SCALE 267 = MANU/SC/0431/2016 22 2016 (3) SCALE 712 = MANU/SC/0372/2016 23 (1997) 7 SCC 592 24 (2009) 7 SCC 561 25 (1992) 2 SCC 343

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24. Therefore, the issues raised by the petitioner should actually be

looked  at  from the  point  of  view of  implementation  of  a  policy  and

monitoring  its  implementation.  In  our  opinion,  in  the  process  of

implementation and monitoring,  what is  important  is  for  the Union of

India  and  the  State  Governments  to  set  up  watch-dog  committees  or

ombudsmen to see that  the polices framed are  faithfully implemented.

There is little utility in knee-jerk reactions and stumbling along from one

situation to another.  

25. Ad hoc measures really do not serve any purpose and eventually

the consequence of an ad hoc reaction tends to travel to this Court for a

response. The one possible solution appears to be for the Union of India

and the States to set up their respective watch-dog committees that will

specialize in certain disciplines for the purposes of implementation and

monitoring the schemes and policies framed by the Union of India and

the State  Governments.  A policy might be acceptable  and worthy, but

often it is the effective implementation and monitoring that is lacking.

26. Under  the  circumstances,  we  are  inclined  to  issue  only  one

direction in respect of the three issues raised by the petitioner which is to

direct  the  concerned  authorities  in  the  Union  of  India,  the  State

Governments  and  the  Reserve  Bank  of  India  and  other  banks  to

religiously implement their policies since they are ultimately intended for

the benefit of the people of our country and not for the benefit of any

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stranger.  

Court Commissioners

27. Learned counsel for the petitioner insists on the appointment of

Court  Commissioners  to  oversee  the  implementation  of  the  various

directions issued by us.  Reference is made by learned counsel to what is

commonly  called  the  Right  to  Food  Campaign  which  resulted  in  the

appointment of Commissioners by this Court to report on the functioning

and improvement  of  the public  distribution system.  Some useful  and

valuable suggestions were certainly given by the Court Commissioners

and which were implemented under the directions of this Court.  Learned

counsel for the petitioner submits that it is necessary for us to direct the

appointment of Court Commissioners so that the provisions of the various

statutes under consideration are faithfully implemented and the various

schemes framed by the Government of India and the State Governments

are implemented in their true spirit.

28. Learned  Additional  Solicitor  General  vehemently  opposes  this

plea on the ground that the appointment would serve no useful purpose.

He submits that it is not as if the officers in the Government of India are

not doing their work.  While there may be some laxity or slackness on

occasion  but  that  cannot  be  generalized  to  necessitate  some  external

authorities  to  monitor  the  functions  of  the  officers  of  the  State.   He

submits  that  there  are  internal  checks within the administration which

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ensure that governance is carried out for the welfare of the people and in

a transparent and accountable manner.

29. We have  given  our  consideration  to  the  submissions  made  by

learned counsel  for  the petitioner  and the  learned Additional  Solicitor

General  and find that  the system of in-house checks has already been

statutorily recognized for all the issues that we have dealt with in this

case.   For  example,  the  Disaster  Management  Act,  2005  constitutes

authorities and bodies like the National Disaster Management Authority,

the National Executive Committee etc. to ensure that the Act is faithfully

implemented and measures taken are reviewed and monitored from time

to  time.   Similarly,  the  National  Food  Security  Act,  2013  and  the

Mahatma Gandhi National Rural Employment Guarantee Act, 2005 also

mandate  the  constitution  and  establishment  of  bodies  and  authorities

under the statute to review and monitor the implementation of the statute

and the schemes or programs thereunder.

30. It  is  another  matter  altogether  that  some  provisions  of  these

statues  have  been converted  into  a  dead letter  and various  authorities

under  these  statutes  have  not  yet  been  constituted  compelling  us  to

comment on the failure of the Executive branch of the Government of

India and the State Governments to faithfully implement the law enacted

by  Parliament.   We have  also  given  directions  in  this  regard  and  we

certainly expect a favourable response to the directions issued and their

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compliance.  For the present, therefore, we do not see the need for the

appointment of any Court Commissioner.

Continuing mandamus

31. We  are  firmly  of  the  view  that  the  principle  of  continuing

mandamus is  now an integral  part  of  our  constitutional  jurisprudence.

There are any number of public interest petitions in which this Court has

continued to monitor the implementation of its orders and on occasion

monitor investigations into alleged offences where there has been some

apparent stonewalling by the Government of India.  A few years ago, one

of us had occasion to advert to the requirement of a continuing mandamus

as a part of our jurisprudence.26 It is not necessary to repeat the views

expressed therein.

32. Under these circumstances, we agree with learned counsel for the

petitioner that this petition ought not be disposed of but should be kept

pending and the possibility of a continuing mandamus being issued ought

to be kept open to ensure that the directions that have been given are

complied  with  by  the  Government  of  India  as  well  as  the  State

Governments.

33. We adjourn this case to 1st August, 2016 at 2.00 p.m. and direct

the Union of  India  to file a status report  on or  before 25 th July, 2016

26 Manohar Lal Sharma v. Union of India, (2014) 2 SCC 532  

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stating  the  action  taken  by  the  Government  of  India  on  the  various

directions that we have given in this case on different dates.

………………………..J ( Madan B. Lokur )

New Delhi; ……………………….J May 13, 2016          ( N.V. Ramana )

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