Case: DIPIKA JAGATRAM SAHANI Vs. UNION OF INDIA AND OTHERS

2. The Constitution of India with the object of securing to all its citizens social and economic justice contains various Articles which empower making of special law in favour of women and children. Article 47 of the Constitution which forms the part of Directive Principles of the State Policy provides that 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. The Government of India with the above objective launched a welfare scheme, namely, Integrated Child Development Services Scheme in the year 1975. The Scheme was designed as an early childhood development programme aimed to address health, nutrition and development needs of young children who are future of India and pregnant and nursing mothers. The Scheme was designed to promote holistic development of children under 6 years of age. This Court in a Public Interest Litigation in Writ Petition No.196 of 2001, Peoples Union for Civil Liberties vs. Union of India and others, had issued various directions for protection of right to food of the poor and the underprivileged sections including children and women. This Court has been pro-actively directing the Central Government and the State Governments to effectively implement the Integrated Child Development Services Scheme. Various directions were issued by this Court from time to time.3. The Parliament enacted the National Food Security Act, 2013 (hereinafter referred to as the Act, 2013) to provide for food and nutritional security in human life cycle approach, by ensuring access to adequate quantity of quality food at affordable prices to people to live a life with dignity and for matters connected therewith. The Statement of Objects and Reasons of the Act apart from containing various other objects, proposed to provide following also in paragraph 4(c), (d) and (e):4. In view of the preceding paragraphs, it is proposed to enact a new legislation, namely, the National Food Security Bill, 2011, to-...... ...... ...... ......(c) entitle every pregnant woman and lactating mother to meal, free of charge, during pregnancy and six months after child birth, through the local anganwadi, so as to meet the nutritional standards specified in Schedule II; and to provide to such women maternity benefit of rupees one thousand per month for a period of six months in accordance with a scheme, including cost sharing, payable in such instalments as may be prescribed by the Central Government.(d) entitle every child up to the age of fourteen years-(i) age appropriate meal, free of charge, through the local anganwadi so as to meet the nutritional standards specified in Schedule II in the case of children in the age group of six months to six years; and (ii) one mid day meal, free of charge, everyday, except on school holidays, in all schools run by local bodies, Government and Government aided schools, up to class VIII, so as to meet the nutritional standards specified in Schedule II in the case of children in the age group of six to fourteen years;(e) require the State Government to identify and provide meals through the local anganwadi, free of charge, to children who suffer from malnutrition, so as to meet the nutritional standards specified in Schedule II; and implement schemes covering entitlements of women and children in accordance with the guidelines, including cost sharing, between the Central Government and the State Governments in such manner as may be prescribed by the Central Government.4. The Act, 2013 by Section 4 creates a statutory right of every pregnant woman and lactating mother free meals during pregnancy and six months after the child birth. Section 5 provides for nutritional support to children, in the case of children in the age group of six months to six years, age appropriate meal, free of charge, through the local Anganwadi so as to meet the nutritional standards. Similarly, Section 6 providesSection 4. Nutritional support to pregnant women and lactating mothers.-Subject to such schemes as may be framed by the Central Government, every pregnant woman and lactating mother shall be entitled to—(a) meal, free of charge, during pregnancy and six months after the child birth, through the local anganwadi, so as to meet the nutritional standards specified in Schedule II; and(b) maternity benefit of not less than rupees six thousand, in such instalments as may be prescribed by the Central Government:Provided that all pregnant women and lactating mothers in regular employment with the Central Government or State Governments or Public Sector Undertakings or those who are in receipt of similar benefits under any law for the time being in force shall not be entitled to benefits specified in clause (b).5. Nutritional support to children.- (1) Subject to the provisions contained in clause (b), every child up to the age of fourteen years shall have the following entitlements for his nutritional needs, namely:—(a) in the case of children in the age group of six months to six years, age appropriate meal, free of charge, through the local anganwadi so as to meet the nutritional standards specified in Schedule II: Provided that for children below the age of six months, exclusive breast feeding shall be promoted;(b) in the case of children, up to class VIII or within the age group of six to fourteen years, whichever is applicable, one mid-day meal, free of charge, everyday, except on school holidays, in all schools run by local bodies, Government and Government aided schools, so as to meet the nutritional standards specified in Schedule II.(2) Every school, referred to in clause (b) of sub-section (1), and anganwadi shall have facilities for cooking meals, drinking water and sanitation:Provided that in urban areas facilities of centralised kitchens for cooking meals may be used, wherever required, as per the guidelines issued by the Central Government.6. Prevention and management of child malnutrition.- The State Government shall, through the local anganwadi, identify and provide meals, free of charge, to children who suffer from malnutrition, so as to meet the nutritional standards specified in Schedule II.5. The Anganwadi Centres which were running in the country since 1975 under the Integrated Child Development Services Scheme, now have been given statutory recognition under the Act, 2013. Section 2(1) defines Anganwadi in the following words:Section 2(1) anganwadi means a child care and development centre set up under the Integrated Child Development Services Scheme of the Central Government to render services covered under section 4, clause (a) of sub- section (1) of section 5 and 6.6. Anganwadi Centres which are manned by Anganwadi workers/helpers are entrusted with implementation of a large number of welfare schemes initiated by the Central Government as well as by the State Governments. The beneficiaries who are registered with Anganwadi are also provided following:a) providing supplementary nutrition;b) growth monitoring and counseling;c) pre-school education;d) immunization ande) referral services.7. After spread of pandemic Corona virus(COVID-19), Anganwadi Centres were closed throughout the country in March, 2020. The distribution of special nutrition and other benefits to be provided for beneficiaries being essential services were permitted to be conducted by Anganwadi staff by resorting to Take Home Ration.8. Under Section 7 of the Act, 2013 it is the obligation of the State Governments to implement schemes covering entitlements under Sections 4,5 and 6 of the Act, 2013 in accordance with the guidelines, including cost sharing, between the Central Government and the State Governments in such manner as may be prescribed by the Central Government. The Schedule II of the Act, 2013 provides for nutritional standards. Schedule II of the Act, 2013 is as follows:[See sections 4(a), 5(1) and 6]Nutritional standards: The nutritional standards for children in the age group of 6 months to 3 years, age group of 3 to 6 years and pregnant women and lactating mothers required to be met by providing Take Home Rations or nutritious hot cooked meal in accordance with the Integrated Child Development Services Scheme and nutritional standards for children in lower and upper primary classes under the Mid Day Meal Scheme are as follows:9. The lockdowns which were placed in the entire country in exercise of the power under the Disaster Management Act, 2005 were lifted by the competent authority in phased manner and gradually specified activities were permitted to be opened.10. In this writ petition we had issued notice on 21.09.2020 and also directed the petitioner to serve a copy of the petition to the learned Solicitor General of India. The counter-affidavits have been filed on behalf of Union of India. The Union of India has filed an affidavit dated 20.11.2020. It states that the Supplementary Nutrition Programme supplied under ICDS Scheme is of two types for different beneficiaries i.e. (a)Take Home Ration for pregnant women & lactating mothers and children in the age group of 6 months to 3 years; and (b) Morning Snacks and Hot Cooked Meal for children in the age group of 3-6 years. Since the Supplementary Nutrition Programme is implemented, managed and controlled by the respective State/UT, it is at their discretion to decide items of food to be supplied under the Supplementary Nutrition as per local food habits, regional preferences and availability of food in local area which, however, has to be done by keeping in view the overall guidelines, nutritional norms and food safety standards.11. It has been further pleaded that Government of India, Ministry of Women & Child Development has issued communication (Guidance Note) dated 11.11.2020 to States and Union Territories on operations of Anganwadi Services.12. After filing of the affidavit the matter was taken up by this Court on 27.11.2020 on which dated following order was passed by this Court:The affidavit has been filed on behalf of the Union of India. In the affidavit it has been stated that the decision has been taken on 11.11.2020 and guidelines issued on operation of Anganwadi services with operational guidance note for continuation of services in the context of COVID-19 which has been brought on the record as Annexure R-4.Let Government of India file a detailed affidavit with regard to implementation of the guidelines dated 11.11.2020. The States may also file an additional affidavit regarding the measures taken 3 with regard to guidelines dated 11.11.2020 issued by the Government of India.Mr. Colin Gonsalves, learned senior counsel has also submitted that for small children, upto 6 years, neither food nor any education is provided.With regard to the above aspect also, in the additional affidavit, details may be given by the Union of India as well as by the States. Two weeks time is granted. List in the week commencing from 14.12.2020.13. The Union of India as well as the States and Union Territories have filed affidavits in this writ petition bringing on record the steps taken by the respective States/UTs regarding implementation of the requirement as contained in Sections 4,5 and 6 of the Act, 2013.

Reasoning:
17. We have considered submissions of the learned counsel for the parties and have perused the records. Children are the next generation and therefore unless and until the children and the women have the nutritious food, it will affect the next generation and ultimately the country as a whole. 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.18. As observed above, it is now statutory obligation of the Centre and the States to provide for nutritional support to the pregnant women and lactating mothers, nutritional support to children and to take steps to identify and provide meals for children who suffer from malnutrition. Government has a constitutional obligation to preserve human life. Good health of its citizens is its primary duty. International covenants also aim at highest attainable standards of physical and mental health. This is in interest of social justice. Inadequate supply of nutritious food to the citizens, more particularly to the children and the women shall affect their health. Therefore, the same shall be in violation of their fundamental right to health/right to live with dignity guaranteed under Article 21 of the Constitution of India.19. The Centre as well as States are statutorily obliged to implement statutory obligation as imposed under Sections 4,5 and 6 of the Act, 2013. The nutritional support is required to be of the nutritional standards which have already been laid down to Schedule II of the Act, 2013 and all States/UTs are obliged to implement such Scheme and have to comply with Schedule II. The main emphasis in the writ petition being the issue of opening of Anganwadi Centres throughout the country, we need to first consider the above issue. Provision of foodgrains as per the provisions of the National Food Security Act, 2013 is a statutory obligation on the State. Article 47 of the Constitution 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.24. After issuing a guidance note on 11.11.2020, several States have taken decision to open Anganwadi Centres. The State of Meghalaya opened its Anganwadi Centres w.e.f. 03.12.2020. The State of Punjab opened its Anganwadi Centres w.e.f. 09.12.2020, the State of Rajasthan also opened its Anganwadi Centres w.e.f. 07.12.2020.25. Even before the order dated 11.11.2020, the State of Chhattisgarh had opened 12,593 Anganwadi Centres in the State w.e.f. September, 2020. It is relevant to notice the affidavit filed on behalf of the State of Arunachal Pradesh. The State of Arunachal Pradesh issued an order dated 18.06.2020 titled Strategy for opening of Anganwadi Centres and under the aforesaid strategies, Anganwadi Centres were to be reopened in two phases, first Phase-I from 15.07.2020 and phase-II from 01.08.2020. Standard Operating Procedure dated 18.06.2020 was issued by the Government of Arunachal Pradesh, Ministry of Women and Child Development department.26. On the other hand, there are few States who have taken decision not to reopen Anganwadi Centres.27. The paragraph 16 as noted above does not in any manner create any prohibition in opening of Anganwadi Centres. The above guidelines have been issued keeping in view the protection of vulnerable persons and which requires pregnant women, children below the age of 10 years to stay at home except for essential and health purposes. Services which are being provided by Anganwadi Centres are essential services.28. We have already noticed the guidance note dated 11.11.2020 issued by Government of India which permits reopening of Anganwadi Centres with consultation of States/Union Territories. State of Assam was thus fully empowered to take the decision regarding reopening of Anganwadi Centres and its stand taken in paragraph 7 to the following effect- All Anganwadi Centres will be opened as and when the permission is accorded by the Central Government in this regard is not correct. The State could have very well taken a decision for reopening the Anganwadi Centres in view of the guidance note issued by the Government of India dated 11.11.2020.30. All the States/Union Territories in their affidavits have given details of providing Take Home Rations(THR) as per guidelines and requirement contained in Act, 2013. Different cereals and other items have been referred to in the affidavits filed by the States/Union Territories which according to them complies with nutrition standards. Most of the States/Union Territories have mentioned cereals as Take Home Ration for the beneficiaries from 3 to 6 years of age. The State of Maharashtra claim to supply Wheat/Rice-62 grams, Masoor Dal-28 grams, Chana-30 grams, Mirchi Powder-4 grams, Turmeric Powder-4 grams, Salt-8 grams, Soybean Oil-10 gram per day per beneficiary.31. The State of Bihar for a few months has not supplied Take Home Rations rather it has directed for crediting the amount equivalent to Take Home Ration to the Bank Account of the beneficiaries or their parents. The State of Bihar, however, has started distributing cereals as Home Take Rations by orders issued by the State of Bihar in April, 2020. The State of Gujarat in its affidavit has stated that it is providing to Children (below 6 years of Age), 8 packets of Balshakti (500gm Packets) Take Home Ration per month to match up nutritional requirements. Take Home Ration is being distributed through the medium of Gujarat Cooperative Milk Marketing Federation. It further states that since June 2020, the ready to eat nutritional traditional sweet (Sukhadi) 1-Kilogram per week in lieu of hot cooked meals is provided to 3 to 6 years children. We are of the view that the State ought to have included certain cereals in Take Home Ration instead of providing only Balshakti and Sukhadi. The nutritional standard as provided in Schedule II of Act, 2013, has to be met by all States and Union Territories.32. There is no doubt that the Central Government as well as all the States and Union Territories have issued necessary guidelines for implementing statutory requirements of Act, 2013 and for meeting the nutritional standards. The big question however is as to what extent the implementation is on the ground and the benefits are extended to beneficiaries as required by the Statute. The beneficiaries which belong to vulnerable class are not equipped with suitable mechanisms to raise issues of non-implementation and not providing food articles complying with nutritional standards as provided in the Statute.33. It is the obligation of the State to ensure that pregnant women, lactating mothers and children in the age of 3 to 6 years and children who suffer from malnutrition are provided their dues. The State has to provide an appropriate mechanism for supervision and check, child development officers and other district level officers who are entrusted to monitor the functioning of Anganwadi Centres have to be extra vigilant and take steps so that no beneficiary is denied its dues. All States/Union Territories should evolve an appropriate mechanism for supervision so that dues are received by beneficiaries for whom schemes are in place. It is for the State to secure health to its citizens as its primary duty. No doubt, the Government is rendering this obligation through various schemes, such as, opening of Aanganwadis, providing nutritious food through Aanganwadis, Mid-day Meal Scheme, etc., but in order to make it meaningful, it has to be within the reach of its people, as far as possible, and the Government must supply the nutritious food in the real sense bearing in mind the provisions of National Food Security Act.34. The Government of India by its guidance note permitted all the States and Union Territories to open Anganwadi Centres, it is the obligation of the States/Union Territories to take decision for opening of Anganwadi Centres. As noted above, several States/Union Territories have already started running their Anganwadi Centres which is a positive step towards achievement of the goal for which Anganwadi Centres were envisaged. We are of the view that unless there are any specific reasons for not opening of Anganwadi Centres, all Anganwadi Centres beyond the containment zones should be made functional by all the States/Union Territories at an early date. All States may review the situation and take positive decisions on or before 31.01.2021 and unless there are specific decisions taken by the State Disaster Management Authority of a particular State, Anganwadi Centres be opened on or before 31.01.2021.