DIPIKA JAGATRAM SAHANI versus UNION OF INDIA AND ORS.
[2021] 1 S.C.R. 209, Supreme Court of India, 2021
Outcome: Case Allowed (Granted)
Segment: Ratio
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DIPIKA JAGATRAM SAHANI
v.
UNION OF INDIA AND ORS.
(Writ Petition (Civil) No. 1039 of 2020)
JANUARY 13, 2021
[ASHOK BHUSHAN, R. SUBHASH REDDY AND
M. R. SHAH, JJ.]
Anganwadi Centres – Writ petition filed as a Public Interest
Litigation questioning the closure of Anganwari centres across the
country – Petitioner stated that through Anganwari Centres
supplementary nutrition to pregnant women, lactating mothers,
adolescent girls and children upto the age of six years were being
provided and prayed for direction to Centre and States for reopening
all the Anganwadi Centres in the country and to provide Anganwari
services as were provided before the lockdown and in accordance
with ss.4 to 7 of National Food Security Act, 2013 – Held:
Government has a constitutional obligation to preserve human life
– The Centre as well as States are statutorily obliged to implement
statutory obligation as imposed under ss.4, 5 and 6 of the Act, 2013
– After spread of COVID-19, Anganwadi Centres were closed
throughout the country in March, 2020 – The Ministry of Women
and Child Development, Government of India had issued guidance
note dated 11.11.2020 providing for resumption of Anganwari
Services outside the containment zones – Therefore, in view of the
guidelines, all States/Union Territories are directed to take decision
in respect of opening Anganwadi Centres situated outside the
containment zones – The decision for  not opening  Anganwadi
Centres in any State/Union
Territories or any part of State/Union
Territory shall be taken only after the State Disaster Management
Authority of the State direct for not opening of Anganwadi Centres
in State/particular area of the  State situated outside containment
zone – Anganwadi Centres situated in the containment zone shall
not be opened till the containment continues – All States/Union
Territories shall ensure that  nutritional  standards  as provided in
Schedule II of National Food Security Act, 2013, is fulfilled by
providing nutritional support to pregnant women, lactating mothers,
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nutritional support to children who suffer from malnutrition – All
the States/Union Territories shall issue necessary orders  regarding
monitoring  and supervision of Anganwadi Centres to ensure that
the benefit reaches to the beneficiaries and a Complaint Redressal
Mechanism be put in place in each district – Constitution of India –
Art.47 – National Food Security Act, 2013 – ss.4 to 7.
Allowing the writ petition, the Court
HELD:  1. 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. 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.  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.
Provision of food grains as per the provisions of the 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.  [Paras
18, 19][220-E-H; 221-A-B]
2. 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
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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. 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.  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. 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. [Paras 33, 34][226-E-H; 227-A-B; 227-C]
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.
1039 of 2020.
(Under Article 32 of the Constitution of India)
Ms.
Aishwarya Bhati, ASG, Mr. Nalin Kohli, AAG, Colin Gonsalves,
Dr. Manish Singhvi, Sr. Advs., Sadiq Noor, Satya Mitra, V. G. Pragasam,
S. Prabu Ramasubramanian, Ms. Ruchi Kohli, Ms. Archana Pathak
Dave, Akshay Amritanshu, Ms. Chinmayee Chandra, B. K. Satija,
Gurmeet Singh Makker, Avijit Mani Tripathi, Upendra Mishra, Ms.
Deepanwita Priyanka, Ms. Vishakha, Ms. Garima Prashad, Abhinav S.
Agarwal, Ms. Diksha Rai, Ms. Palak Mahajan, S. Udaya Kumar Sagar,
Ms. Swati Bhardwaj, Ms. Uttara Babbar, Ms. Bhavana Duhoon, Manan
Bansal, Sachin Patil, Rahul Chitnis, Aaditya A. Pande, Geo Joseph,
Sandeep Kumar Jha, Abhimanyu Tewari, Ms. Eliza Bar, Ms. Priyanka
Prakash, Ms. Beena Prakash, G. Prakash, Abhinav Mukerji, Ms. Bihu
DIPIKA JAGATRAM SAHANI v. UNION OF INDIA
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Sharma, Ms. Pratishtha Vij, Siddhesh Kotwal, Ms. Ana Upadhyay,
Nirnimesh Dube, Raghvendra Kumar, Anand Kumar Dubey, Narendra
Kumar, Abhimanyu Jhamba, Ashish Jhamb, Ms. R. A. Thonpinao Thangal,
Samir Ali Khan, K. V. Jagdishvaran, Ms. G. Indira, Dr. Monika Gusain,
Chirag M. Shroff, Ms. Abhilasha Bharti, V. N. Raghupathy, Suhaan
Mukerji, Vishal Prasad, Nikhil Parikshith, Abhishek Manchanda,
Sayandeep Pahari, Shuvodeep Roy, Rahul Raj Mishra, M. Yogesh Kanna,
Raja Rajeshwaran S., Aditya Chadha, Pukhrambam Ramesh Kumar,
Ms. Astha Sharma, Ms. K. Enatoli Sema, M/s. PLR Chambers and Co.,
Advs. for the appearing parties.
The Judgment of the Court was delivered by
ASHOK BHUSHAN, J.
1. This  writ  petition  has  been  filed  as  a  Public Interest
Litigation   under   Article   32   of   the Constitution of India questioning
the closure of the Anganwadi Centres across the country. The petitioner
states  that  through  Anganwadi  Centres  supplementary nutrition  to
pregnant  women,  lactating  mothers, adolescent girls and children upto
the age of 6 years were being provided which fulfilled the State objective
of holistic development of children under 6 years and to provide food
and nutrition to the beneficiaries. In the writ petition the petitioner
impleaded the Union of India, all States and Union Territories and has
prayed for following reliefs:
a) For a writ of mandamus directing the Union ofIndia  and  all
States  and  Union
Territories to forthwith reopen all the
Anganwadi Centres  in  the  country  and provide Anganwadi
services as before the lockdown and in accordance with
Sections 4 to 7 of the National Food Security Act, 2013.
b) For writ of mandamus directing the Union of
India  and  all
States  and  Union Territories to provide Hot Cooked Meals,
Take Home Rations in consonance to the provisions of the
National Food Security Act, 2013 as well as The
Supplementary Nutrition (under  the  Integrated  Child
Development Services  Scheme)Rules,  2020 as well as make
provisions for additional Supplementary Nutrition provisions
to all beneficiaries of the ICDS Scheme in the form of a
comprehensive package of Cooked Food, Eggs, Fruits, dry
rations including cereals, pulses, etc.
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c) For a writ of mandamus directing the Union ofIndia  and  all
States  and  Union Territories to conduct growth monitoring
of children to document growth in the wake of the after effects
of the pandemic more particularly main nourishment among
children and anemia in girl children and initiate corrective steps
forthwith.
d) For an order in terms of recommendations 1-6 of the Right to
Food Campaign in its representation dated 6.8.20 to the Union
of India at Annexure P-8 hereto and as set out in paragraph
no.37 above.
e) For any other order deemed fit and proper under  the
circumstances  of  the  present case.”
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, People’s 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
DIPIKA JAGATRAM SAHANI v. UNION OF INDIA
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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
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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 provides for
and management of child malnutrition. Sections 4,5 and 6 are as follows:
“Section  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.
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(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 and
e) 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.
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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:
“SCHEDULE II
[See sections 4(a), 5(1) and 6]
NUTRITIONAL STANDARDS
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:
Serial      Category          Type of       Calories Protein number
meal         (Keal)
(g)
1.    Children(6 months to   Take Home Ration   500   12-15
 3 years)
2.   Children(3 to 6years)  Morning Snack and  500   12-15
Hot Cooked Meal
3.   Children (6 months to  Take Home Ration  800  20-25
6 years) who are
malnourished
4.   Lower primary classes   Hot Cooked Meal   450   12
5.   Upper primary classes   Hot Cooked Meal    700   20
6.   Pregnant
women and      Take Home Ration    600 18-20
Lactating mothers
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.
DIPIKA JAGATRAM SAHANI v. UNION OF INDIA
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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.
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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.
14. Shri  Colin  Gonsalves,  learned  senior  counsel appearing for
the petitioner contends that although initially under the order issued by
the Government of India, Ministry of Home Affairs beneficiary were
not to attend the Anganwadi but after lockdown came to an end due to
non-opening of Anganwadi in various States beneficiaries, children
pregnant women and lactating mothers are suffering. The pandemic has
caused severe strain on the employment and means of livelihood of a
large sections of the society  especially  marginal sections,  who  require
immediate extension of all benefits as envisaged in the Scheme. Shri
Gonsalves has also filed additional documents in support of his writ petition
and submits that even National Human Rights Commission has also made
recommendations on 28.09.2020 and 29.09.2020 after impact assessment,
issued advisory to reopen Anganwadi Centres immediately. Shri Gonsalves
submits that due to non-providing of hot cooked meals to children upto
the age of
six years and children who are affected of malnutrition they
are suffering which needs immediate attention and remedial action.
15. Smt. Aishwarya Bhati, learned Additional Solicitor General
appearing for Union of India submits that Union of India has filed its
Guidance Note dated 11.11.2020 providing  resumption  of  Anganwadi
Services outside containment zones with immediate effect, after
complying health and safety protocols. It is further submitted by the
learned Additional Solicitor General that Union of India has also issued
an operational Guidance  Note  for  continuation  of  services  in  the
context of COVID-19. The Union of India also referring to the Guidance
Note dated 11.11.2020 has sought status report from the States and
Union Territories. In the additional affidavit it has been stated that a few
of UTs and States like Andaman and Nicobar, Chhattisgarh, Goa,
Meghalaya and Rajasthan, Anganwadi Centres have been opened and
services are being provided therein.
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16. Learned counsel appearing for various States and Union
Territories have also advanced their submissions. The States and Union
Territories in their affidavits have submitted that the States and Union
Territories have been providing necessary Home Take Ration as per the
requirements to the beneficiaries which were delivered at door steps
once in 15 days. Some of the States in their affidavits have stated that
Anganwadi Centres have been opened. With regard to few States it is
stated  that  matter  has  been  referred  and  the approval of the State
Government is awaited. Some of the States have stated that decision
has been taken, as of now, not to open the Centres looking to the
continuance of the pandemic. Some of the States have stated that the
Centres are closed till 31.12.2020 and decision will be taken thereafter.
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,
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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.
20.  After  issuance  of  Order  dated  24.03.2020  by Ministry of
Home Affairs, for containment of Covid-19, Anganwadi  Centres  in
States/Union  Territories  were closed. The Government of India, Ministry
of Women and Child Development vide letter dated 30.03.2020 directed
issuance of necessary instructions  to  the  District Authorities to utilize
services of Anganwadi workers/helpers for providing supplementary
nutrition to the beneficiaries at their doorsteps. After taking suitable
measures as suggested by Health Authorities, Government of India,
Ministry of Home Affairs issued an order dated 15.04.2020 in exercise
of powers under Section 10(2)(l) of the Disaster Management Act, 2005,
wherein in paragraph 8, it was provided that Anganwadis shall remain
functional by distributing the food items and nutrition once in fifteen
days at the doorsteps of the beneficiaries i.e.  Children, pregnant women
and lactating
mothers. The order further stated the beneficiaries shall
not attend the Anganwadi.
21.By subsequent order issued by the Government of India,
Ministry  of  Home  Affairs, various more activities were permitted. ON
14.10.2020, the Ministry of Women and Child Development wrote to the
Ministry of Home   Affairs   (Disaster   Management   Division) regarding
reopening  of  Anganwadi  Centres. The Government of India, Ministry
of Home Affairs, issued an O.M. dated 22.10.2020 stating that the
Ministry of Women and Child Development may take decision after
consultation with concerned States/Union Territories for reopening of
Anganwadi centres which are out of the containment zone taking
appropriate measures related to health and safety.
22. The Government of India, Ministry of Women and Child
Development issued a guidance note on 11.11.2020 on operation of
Anganwadi services, which note is to the following effect: -
DIPIKA JAGATRAM SAHANI v. UNION OF INDIA
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“F. No. PA/85/2020-CPMU C No 85941
Government of India
Ministry of Women & Child Development
Jeevan Vihar Building,
New Delhi - 110001
11th November, 2020
To
The Principal Secretaries/Secretaries,
Department of Social Welfare/Women & Child
Development of all States/UTs
Subject: Guidance note on operations of
Anganwadi Services — regarding,
Sir/Madam,
Under-nutrition is one of the  leading causes  of  morbidity  and
mortality  in children under the age of 5 years. Delivery of
preventive services to mitigate the impact of the pandemic on the
nutrition is well recognized. Provision of essential services like
Growth Monitoring   Referral, and supplementary nutrition etc. to
ensure the health and well- being of the pregnant ladies, lactating
mothers and children below 5 years is most important. In view  of
Covid l9  pandemic  globally,  it  is imperative to ensure, that the
beneficiaries do not suffer and remain away from Anganwadi
services.
2. Hence, Anganwadi Services may be resumed outside
containment  zones  with immediate effect, complying health and
safety protocols. Further, cleanliness, Hygiene and Sanitization
may be ensured in and around the premises  of  Anganwadi  Center,
use  of mask/face  covers  shall  be  mandatory  for everyone
visiting the Centre, including AWW and AWH. Also, frequent hand
washing, and strict  social  distancing  as  per  MoHFW guidelines
must  be  followed  at  Anganwadi Centre.
3.
Ministry of Women and Child Development has taken up
the matter with Ministry of Home Affairs regarding reopening of
AWCs. Ministry of Home Affairs vide OM No. 40-6/2020/DM-
1(A)/Part-2  dated  22nd  October 2020 (copy enclosed) advised
that AWCs may be opened outside the containment zones, by
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adhering to the Standard Operating Procedures (SOP) related to
health and security measures in consultation with State/UTs.
4. A guidance note for resuming Anganwadi Services is
enclosed herewith. Based on the guidance note, States / UT
Governments need to develop their own SOP for reopening AWC
when the State/Union  Territory Governments declare  it  safe
for  AWC  to  operate.  All States/UTs  are expected  to comply
with the COVID-19  related  directions  issued  by Ministry
of Home Affairs and Ministry  of Health and Family  Welfare,
Government  of India, from time to time.
5. Therefore, it is requested that States/UTs may decide
reopening of  AWCs outside containment zones while adhering to
health and safety  protocols as per the guidelines of MOHFW.
Yours sincerely,
Executive Director,
POSHAN Abhiyan, MWCD
Copy to:
PS to Minister,
PS to MoS,
Secretary MoHFW and Secretary MHA”
23. It is also relevant to notice that in the month of September,
2020, the National Human Rights Commission issued  an  advisory on
Right  to  food  security  and nutrition in context of Covid-19. The National
Human Rights  Commission  issued  following  Advisory  dated 28.09.2020
Related to Nutrition: -
“I. Implementation of Anganwadi Services
i.
Recognise ICDS as an ESSENTIAL SERVICE and
reopen anganwadi centres immediately to provide crucial
growth monitoring, immunization, cooked meal, and
nutritional counselling services, with  adequate  safety
protocols to prevent COVID
infection for anganwadi
workers, women and children.
DIPIKA JAGATRAM SAHANI v. UNION OF INDIA
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ii.
Ensure that sufficient quantity of dry rations (food grains,
eggs,  milk powder and medicines, etc.) and take- home
rations are made available to children under three years, as
well as pregnant and lactating women.”
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
der 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. We may notice the counter
affidavit filed on behalf of the State of Assam. In the affidavit, it has
been stated that Anganwadi Centres will be
open as and when the
permission will be accorded by the Central Government in  this  regard.
The  State  of  Assam  is  under  the impression that the order issued by
the Ministry of Home Affairs dated 25.11.2020, provides for not opening
of  the  Centres. The  order  dated  25.11.2020  of Government of India,
Ministry of Home Affairs, filed as Annexure-R1. Paragraph 16 which
contains the heading “protection of Vulnerable persons” is as follows: -
“16.  Persons  above  65  years  of  age, persons with co-
morbidities, pregnant women, and children below the age of 10
years are advised  to  stay  at  home,  except  for essential and
health purposes.”
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
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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.
29.  The  State  of  Maharashtra  in  its  affidavit  has stated  that
the  Disaster  Management  department  has restricted the reopening of
Anganwadi Centres till the control  of  Covid-19  pandemic  in  the  State
and  has approved the continuation of arrangement of supplies of  Take
Home  Rations  at  the  doorsteps  of  the beneficiaries. Some of the
States have also in their affidavits stated that Anganwadi Centres be
closed till particular  date  like  State  of  Tripura  states  that Anganwadi
Centres are to be closed till 31.12.2020, State  of  Mizoram  states  that
Anganwadi  Centres  be closed  till  10.01.2021.  Some  of  the  States/
Union
Territories  have  stated  that  the  approval  from  the States/
Union Territories are awaited for reopening of Anganwadi Centres.
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
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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
real sense bearing in mind the provisions of National Food Security Act.
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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.
35. In view of the above discussions, we allow this writ petition
with following directions: -
I)
As per guidance note dated 11.11.2020 issued by Government
of India, Ministry of Women and Child Development, all
States/Union Territories who have not yet opened Anganwadi
Centres shall take a decision to open Anganwadi
Centres on or before 31.01.2021 situated outside the
containment zone.
II)
The decision for not opening Anganwadi Centres in any State
Union Territories or any part of State/Union Territory shall
be taken
only  after  the  State  Disaster  Management
Authority of the State direct for not opening of Anganwadi
Centres in State/particular area of
the  State situated
outside containment zone.
III) Anganwadi Centres situated in the containment zone shall
not be opened till the containment continues.
IV) All  States/Union  Territories  shall  ensure that  nutritional
standards as provided in Schedule II of  National  Food
Security  Act, 2013, reproduced herein above in para 13 is
fulfilled by providing nutritional support to pregnant women,
lactating mothers, nutritional support to children who suffer
from malnutrition.
DIPIKA JAGATRAM SAHANI v. UNION OF INDIA
[ASHOK BHUSHAN, J.]

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V)
All the States/Union Territories shall issue necessary orders
regarding monitoring and supervision of Anganwadi Centres
to ensure that the benefit reaches to the beneficiaries and a
Complaint Redressal Mechanism be put in place in each
district.
36. The parties shall bear their own costs.
Devika Gujral
Writ petition allowed.