REPORTABLE

 IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (C) NO. 857 OF 2015

Swaraj Abhiyan  (V)                .…Petitioner

versus

Union of  India & Ors.                              …Respondents  

J U D G M E N T

Madan B. Lokur, J.

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

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

the  State  Governments  and  Union  Territories  to  make  functional  those

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

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

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

– which reads as follows:

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

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

requiring State Governments to implement parliamentary laws.

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

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

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

by Parliament?

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

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

should be implemented.

3. Initially  the  National  Food  Security  Ordinance,  2013  was

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

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

others, the following objectives:

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

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

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

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

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

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

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

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

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

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

Government  shall put  in  place  an  internal  grievance  redressal

mechanism….”  

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

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

District Grievance Redressal Officer…..”

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

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

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

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

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

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

transparency  and  proper  functioning  of  the  Targeted  Public  Distribution

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

Government shall set up Vigilance Committees……”

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

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

by some States.   

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

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

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

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

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

implement it in letter and spirit.  

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

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

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

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

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

a social welfare legislation enacted by Parliament.

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

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

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

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

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

the  District  Grievance  Redressal  Officer  for  expeditious  and  effective

redressal  of  grievances  of  aggrieved  persons  in  matters  relating  to  the

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

and to enforce the entitlements under the said Act.

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

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

Grievance Redressal Officer nor had any qualifications been prescribed for

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

Governments was that some officials were given additional responsibility as

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

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

District  Grievance  Redressal  Officers  to  whom  grievances  could  be

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

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

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

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

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

Central Government to consider framing Model Rules under Section 15 of

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

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

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

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

monitoring and review of implementation of the NFS Act.

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

the  Consumer  Disputes  Redressal  Commission  constituted  under  the

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

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

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

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

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

NFS Act also for the reasons mentioned above.

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

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

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

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

the Minutes state, inter alia, as follows:

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

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

Governments  in  designating  an existing  Commission to  act  as  the  State

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

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

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

Commission must  nevertheless meet the requirements of  the law and its

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

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

Commission even though the members of that statutory body or authority

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

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

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

necessary expertise and qualifications to function as such.  We expressed

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

constituted at the earliest.

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

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

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

and  sincerely  implemented  by  the  State  Governments  before  us.  With

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

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

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

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Governments  had  appointed  the  Consumer  Redressal  Commission

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

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

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

“additional  charge”  to  the  Consumer  Disputes  Redressal  Commission to

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

appeared incongruous.   This is because the qualifications required for both

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

Consumer  Disputes  Redressal  Commission  which  performs  judicial  or

quasi-judicial  functions  should  be  asked  to  perform  administrative  and

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

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

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

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

the order on 24th October, 2016.

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

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

and  that  the  Central  Government  had  also  prepared  Model  Rules  and

circulated them to the State Governments.  Notwithstanding this and even

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

been constituted in the following States:

1. Madhya Pradesh

2. Karnataka

3. Andhra Pradesh

4. Telangana

5. Maharashtra

6. Gujarat

7. Jharkhand

8. Bihar

9. Haryana

10.Chhattisgarh

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

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

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

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

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

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

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

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

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

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

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

concerned Chief Secretaries to ensure the appointment of the State Food

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

State  Governments  would  be  willing  to  implement  the  law  enacted  by

Parliament.   We also required details of  the appointment of  independent

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

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

and  persons  who  are  not  subordinate  to  the  officers  against  whom

complaints are made.  We further required the concerned Chief Secretaries

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

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

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

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

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

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

informed about the constitution, establishment and appointment of the State

Food Commission as follows:

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

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

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

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

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

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

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

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

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

independent person should be appointed and not the District Collector or

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

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

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

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

might not be independent enough to deal with the grievances.

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

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

Food  and  Public  Distribution  addressed  to  the  Principal  Secretary/

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

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

establishing a Grievance Redressal Mechanism under the NFS Act and the

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

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

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

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

Government of Tripura were enclosed.

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

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

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

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

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

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

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

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

Government need serious consideration by the State Governments before us

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

the  Central  Government,  the  grievance  redressal  machinery  should  be

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

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

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

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

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

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

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

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

Central  Government  and  the  Governments  of  the  States  and  Union

Territories to ensure that a transparent and accountable Grievance Redressal

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

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

welfare legislation.

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

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

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

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

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

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

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

pervasive and there are other State Governments and Union Territories that

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

implementation.

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

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

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

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

hardly any commitment to the implementation of the NFS Act.

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

mentioned that the States and Union Territories intending to designate any

existing statutory commission to function as the State Food Commission

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

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

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

statutory commission or body is constituted and established in accordance

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

practical  difficulties  in  the  actual  working  of  one  statutory  commission

performing two disparate functions under two different  statutes.   This is

more than likely to compromise the efficiency of that statutory commission

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

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

conducive to good administration and reduces the importance of  a basic

right to wholesome and nutritious food particularly for women and children

which is really the objective of the NFS Act.  

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

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

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

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

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

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

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

Haryana.

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

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

counsel for the petitioner.

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

agreement with his submission on behalf of the Central Government that

the  draft  Report  of  the  Working  Group  on  Developing  Social  Audit

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

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

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

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

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

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context  of  the  Mahatma  Gandhi  National  Rural  Employment  Guarantee

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

overall arrangement is as follows:-

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

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

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

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

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

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

Report which reads as follows:-

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

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

accepted by the Central Government and social audits under the  MGNREG

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

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

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

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

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

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

is mandated under Section 28 of the NFS Act.

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

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

ensuring  transparency  and  proper  functioning  of  the  Targeted  Public

Distribution System and accountability of the functionaries in such system.

Section 29 of the NFS Act reads as follows:-

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

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

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

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

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

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

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

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

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

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

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

Parliament.

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

Commissioners  or  Ombudsman who would  oversee  the  functioning  and

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

indeed  other  State  Governments  and  Union  Territories  were  not

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

inclined to appoint any Food Commissioner or Ombudsman to oversee the

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

important   that  each State  Government  and Union Territory realizes and

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

appreciates  their statutory and constitutional obligations and ensures that

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

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

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

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

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

disregards the will of Parliament.

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

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

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

our constitutional obligation we are of opinion that the following directions

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

Security Act, 2013:

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

Distribution of the Government of India should convene one or more

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

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

implementation of the NFS Act and brainstorm over finding ways and

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

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

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

obligation  must  be  given  its  due  respect  and  must  be  implemented

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

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

Distribution of the Government of India should emphatically request and

commend  to  every  State  Government  and  Union  Territory  to  notify

appropriate  rules  for  a  Grievance  Redressal  Mechanism  under  the

provisions of the NFS Act and designate appropriate and independent

officials as the District Grievance Redressal Officer within a fixed time

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

given  to  the  appointment  and  designation  of  District  Grievance

Redressal  Officers  so  that  any  aggrieved  person  can  approach  them

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

redressed.

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

Distribution of the Government of India will emphatically request and

commend to the State Governments and Union Territories to constitute,

establish and make fully functional a State Food Commission under the

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

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

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

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

Commission.  Therefore  the  said  Secretary  should  require  the  Chief

Secretary to ensure that adequate arrangements are made by each State

Government and Union Territory to provide adequate infrastructure, staff

and other  facilities  for  the  meaningful  functioning of  the  State  Food

Commission including preparation of annual reports required to be laid

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

for reasons that we have already indicated to appoint another statutory

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

is absolutely necessary and completely unavoidable and only as a last

resort.

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

Distribution of the Government of India will emphatically commend and

request every State Government and Union Territory to constitute and

establish a functioning Vigilance Committee in terms of Section 29 of

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

the duties and responsibilities mentioned in that Section.

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

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

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

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

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

the  earliest  with  appropriate  modifications  to  enable  every  State

Government  and  Union  Territory  so  that  a  periodic  social  audit  is

conducted and the NFS Act is purposefully implemented for the benefit

of the people.

……………………………J   (Madan B. Lokur)  

              July 21, 2017 New Delhi;    

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

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (C.) NO. 857 OF 2015    

SWARAJ ABHIYAN (V)                                       …PETITIONER

VERSUS

UNION OF INDIA & ORS.                   … RESPONDENTS

J UDGMENT    

N. V. RAMANA, J.    

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

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

circumstances of this case, I agree with the conclusions and  

directions. However considering the larger constitutional  

question relating to non­compliance of laws by the States, I  

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

REPORTABLE

feel it necessary to add on certain aspects which are involved  

in this case.

2. As enforcement determines the distance between the law in  

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

case, is the implementation of National Food Security Act,  

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

Governments.  

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

State Governments have been found deficient in implementing

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

effective implementation. 2. Constitution of District Grievance Redressal Officer  

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

Act.

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

5. Constitution of Vigilance Committee under Section 29 of  

the Act.

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

notice the status of implementation by some of the States in  

the above mentioned areas. The table given below indicates  

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

the status of implementation of the Act as revealed from the  

record­

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

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

STATE

DATE OF

IMPLE MENTA

TION

OF

THE

ACT

STAT US OF RULE

S

STATUS CONCERNING

SECTION 15

(DGRO)

STATUS CONCERNING SECTION 16 (STATE FOOD

COMMISSION)

STATUS CONCERNING

SECTION 28

(SOCIAL AUDIT)

STATUS CONCERNING SECTION 29

(VIGILANCE COMMITTEE)

ANDHRA PRADESH

Not availa ble on record

Form ulate d

from 18.04 .2017

Joint Collector­II

and Additional District

magistrate of the District

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

Social audit of Fair Price shops and targeted PDS has been

entrusted to SSAAT,

Department

Needs to be reconstituted in

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

is designated as the District

Grievance Redressal Officer (DGRO)

under Rule 6 of the Andhra Pradesh Food

Security Rules, 2017

Department dated:­ 12.04.2017.

of Rural Developmen

t.

BIHAR

Not availa ble on record

Form ulate d in 2014

Vide order 432

dt.23.01.201 4, a separate

DGRO (above the

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

386 dt. 21.02.2014. Currently post of

Chairman is vacant.

Not in place.

Not available on record

level of Addl. Collector) is in places

CHHATTI SGARH

Not availa ble on record

Not frame d

Appointed Chief

Executive Officers,

Panchayat in 27 districts

on 22.03.2017.

Constituted Commission vide notification

dt.13.12.2016. Chairman and five members were

appointed on 31.03.2017.

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

carried out.

Not available on record

GUJARAT 01.04. 2016

Not frame d

Earlier had appointed District Supply

Officer as DGRO vide

GTH­ 2016/1/PDS /10.2016/1

Constituted Commission vide Notification No.

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

and appointed the Chairman and members.

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

Not available on record

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

magistrate) as DGRO

HARYANA

Not availa ble on record

Not frame d

That the State

Government has already designated all the deputy

Commission

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

None conducted

so far Not constituted

ers as District

Grievance Redressal Officer vide Notification

dated 03.10.2013.

JHARK HAND

Augus t,

2015

Form ulate d on Dece mber, 2015

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

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

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

ha.aa.)7­5/2014­ 1632/1633 dt.13.04.2017. Further the Government has appointed Chairman and other five members.

Gram Sabha for rural areas and Nagar Palika (Urban

Local Body) for urban areas have

been entrusted for Social

Not available on record

Audit

MADHYA PRADESH

Not availa ble on record

Draft Rules Form ulate d

from 07.04 .2017

Not constituted

Not constituted. Notification bearing No. F­ 7­35­2013­XXIX­1calling for appointment of the

Commission on 11.04.2017.

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

on 03.04.2017.

Not Constituted

MAHARA SHTRA

Not availa ble on

Not frame d

Additional Collectors

Separate commission is constituted vide

Notification dt.11.04.2017,

Vide Government Resolution

Not available on record

record

who are not concerned with PDS have been

appointed as DGRO vide Notification dt.07.04.201

7

wherein earlier State Consumer Commission

was designated. Appointment are to be

done.

dt.30.07.20 16, Social audit is in place.

TELANGA NA

Oct., 2015

Form ulate d

from 25.02 .2016

Joint Collector of district

under Rule 4 of Telangana

Food Security

Rules, 2015

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

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

Social audit of Fair Price shops and targeted PDS has been

entrusted to SSAAT­TS under the MGNERGA platform.

Vigilance committee set­up under Rule 10 of Telangana Food

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

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

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

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

National Food Security Act.

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

State Governments seem to be not so prompt in  

implementing the Act in its true letter and spirit.  Therefore  

the question for adjudication is, what is the remedy for  

Union Government as well as the citizens against non­

implementing States?  

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

multilateral treaties and this Court’s persistence to alleviate  

the condition of rampant malnutrition prevalent in the  

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

need and importance of this enactment for India. The  

unique feature of this Act is that the Center has de­

centralized the regulatory aspects within the Act by  

empowering the institutions at the bottom of the pyramid. It

would be important to reproduce Section 38 of the Act  

which gives power to the Central Government to give  

binding directions to the State Governments in the following

manner­

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

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

36

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

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

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

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

Central Government has a very important role to play and  

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

Governments. This Act elaborates on the nature of  

federalism as a functional arrangement for co­operative  

action. In order to ensure uniformity for enforcement of  

such an Act, consultation needs to be carried out between  

various State Governments, individually as well as  

collectively, with the Union for effective implementation of  

the Act.

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

usually gives rise to difficult questions concerning the  

sustainability of co­operative federalism, which we have  

accepted as our core constitutional ethos. In Jindal  

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

3 AIR 2016 SC 5617  

37

of this Court has reiterated the principles of co­operative  

federalism in India in the following manner­  

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

38

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

(emphasis supplied)

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

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

the each and every provision of the Constitution  would

inevitably  point that India  has  divided sovereignty in the

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

power house is independent in its own terms. The

constitutional scheme invariably leads to the conclusion

that at times these institutions meet and interact at various

levels to achieve the cherished constitutional goal of co­

operative federalism.  

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

that Center is not powerless which is apparent from various

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

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

enforcing such important legislations, more so when such

legislation is a welfare legislation. From the table provided

above we have seen more breaches than compliance which

39

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

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

meaningful dialogue between the Center and the State

should resolve the issues which have emerged in this case

in the spirit of co­operative federalism. Record indicates that

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

taken for effective  implementation of  the Act especially  in

the draught affected areas so as to save people from abject

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

matter with much more seriousness and implement the Act

in its true letter and spirit.

………..………..J. (N. V. RAMANA)

NEW DELHI

DATED – JULY 21, 2017

40