SWARAJ ABHIYAN - (II) versus UNION OF INDIA & ORS.
[2016] 9 S.C.R. 295, Supreme Court of India, 2016
Outcome: Directions issued
Segment: Ratio
[2016] 9 S.C.R. 295 
SWARAJ ABHIYAN - (II) 
v. 
UNION OF INDIA & ORS. 
(Writ Petition (Civil) No. 857 of2015) 
A 
~AYl3,2016 
B 
[MADAN B. LOKUR AND N.V. RAMANA, JJ.) 
Public Interest Litigation - Food security to persons affected 
by the drought - Drought or drought like conditions prevailing in 
some parts of the country - Monitoring and Implementation of the 
C 
National Food Security Act - Need to ensure food security to the 
said persons - Non-implementation of the Act by some of the States 
- Held: No Mandamus can be issued to the State Governments to 
implement the NFS Act beyond what is required by the terms and 
provisions of the statute - This Court can direct the State to faithfully 
implement the provisions of the NFS Act - No direction can be issued D 
to make available edible oils and dal/lentil to needy people - It is 
not the statutory or constitutional obligation 011 the State- Without 
edible oils and dalllentil the fundamental right of the people in 
drought affected areas guaranteed u/Art. 21 is not violated- Though 
Art. 47 which directs the State to raise the level of nutrition and the 
E 
standard of living of the people, is not enforceable being a Directive 
Principle, there is considerable moral force and authority to 
persuade the State Governments and the Government of India to 
attempt at ensuring that the people in drought affected areas, are 
provided adequate food grains and a cooking medium - Mechanism 
for enforcing several provisions of the
NFS Act has not been 
F 
established or constituted - It is high time that machinery under 
NFS is put in place othenvise enactment of social legislation would 
have no meaning at all - In view thereof. issuance of directions by 
this Court for effective implementation of the statute - Each of the 
States to establish an internal grievance mechanism and appoint or G 
designate for each district a District Grievance Redressal Officer -
States to constitute a State Food Commission for the purpose of 
monitoring and reviewing the implementation of the NFS Act - States 
in which drought has been declared or might be declared in the 
future, all households to be provided with their monthly entitlement 
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[2016) 9 S.C.R. 
A of food grains in terms of the NFS Act regardless of whether they 
fall in the category of priority household or not or they have a 
ration card or not - States of Bihar. Haryana and Uttar Pradesh to 
make adequate provision for the supply of eggs or milk or any 
other nutritional substitute for children under the Mid-Day Meal 
B 
Scheme - Constitution of India - Arts. 32, 21, 47 - National Food 
Security Act, 2013 - ss. 2(14), JO, 14, 15, 16. 
National Food Security Act, 2013 - Implementation of- Held: 
Union of India usually brings into force a statute without putting in 
place the implementation machinery - Mechanism for enforcing 
C several provisions of the NFS Act not established or constituted, 
which is totally strange - Delayed approach in execution enables 
some State Governments to take it easy and implement the law 
whenever it is co11ve11ient to do so. 
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State of Himachal Pradesh v. Umed Ram Sharma (1986) 
2 SCC 68 : 1986 (1) SCR 251; State of H.P. v. High 
Court of H.P. (2000) 10 SCC 646; State of Uttarancha/ 
v. Ba/want Singh Chau/al (2010) 3 SCC 402 : 2010 (1) 
SCR 678; Municipal Council, Rat/am v. Vardichan 
(1980) 4 SCC 162: 1981 (1) SCR 97; Khatri{!/) v. State 
of Bihar (1981) 1 SCC 627 : 1981 (2) SCR 408; 
Paschim. Banga Khet Mazdoor Samity v. State of W.B. 
(1996) 4 SCC 37: 1996 (2) Suppl. SCR 331; Shantistar 
Builders v. Narayan Khimalal Totame (1990) 1 SCC 
520 - referred to. 
Case Law
Reference 
1?86 (1) SCR 251 
referred to 
Para 14 
(2000) 10 sec 646 
referred to 
Para 16 
2910 (1) SCR 678 
referred to 
Para 18 
1981 (1) SCR 97 
referred to 
Para24 
1981 (2) SCR 408 
referred to 
Para25 
1996 (2) Suppl. SCR 331 
referred to 
Para 26 
(1990) 1 sec 520 
referred to 
Para26
SWARAJ ABHIYAN - (II) v. UNION OF INDIA & ORS. 
297 
CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No. 
A 
857 of2015. 
Under Article 32 of the Constitution oflndia. 
Prashant Bhushan, Rohit Kr. Singh, Govind Jee, 0. Kuttan, Advs., 
for the Petitioner. 
P.S. Narasimha, Tushar Mehta, ASGs, Ajit Kumar Sinha, Sr. Adv., 
Anil Grover, Irshad Ahmad, AAGs, Mukul Singh, Irhan George, Ajay 
Sharma, Sridhar Potaraju, B.K. Satija, Neeraj Kumar Sharma, Guntur 
Prabhakar, Ms. Prema Singh, Gopal Singh, Manish Kumar, A.P. Mayee, 
B 
Ms. Shashi Juneja, A. Selvin Raja, Ms. Hemantika Wahi, Kabir Hathi, 
Ms. Puja Singh, Ms. Noopur Singhal, Manan, Dr. Monika Gusain, Tapesh 
C 
Kumar Singh, Kumar Anurag Singh, Mohd. Waquas, Shashank Singh, 
V. N. Raghupathy, C. D. Singh, Ms. Sylona Mohapatra, Udit Arora, 
Nishant R. Katneshwarkar, Sibo Sankar Mishra, Umakant Mishra, 
S. Udaya Kumar Sagar, Krishna Kumar Singh, Upendra Mishra, Vinay 
Garg, Advs., for the Respondents. 
D 
The Judgment of the Court was delivered by 
MADAN B. LOKUR, J. I. In our judgment dated 1l1h May, 
2016 we had adverted to the drought or the drought-like conditions 
prevailing in several parts of our country and had issued certain directions 
for compliance. In this judgment, we will deal with the prayer made by 
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the petitioner Swaraj Abhiyan relating to the implementation of the 
National Food Security Act, 2013 (for short 'the NFS Act'). 
Implementation of the National Food Security Act, 2013 
2. It is submitted by the
petitioner that it is necessary to ensure 
food security to the persons affected by the drought. In this regard, the 
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petitioner made four suggestions and they are: 
(i) All households should be provided with 5 kg food grains per 
person per month irrespective of whether or not they fall in the category 
of priority households as defined in Section 2(14) of the NFS Act read 
with Section I 0 thereof. The provision for food grains should be in addition 
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to and not in derogation of any other entitlement in any other government 
scheme. 
(ii) Households that do not have a ration card or family members 
left out of existing ration cards shou Id be issued special and temporary 
coupons on production of an appropriate identity card or any other proof H
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[2016] 9 S.C.R. 
A of residence. 
(iii) Each household affected by the drought should be provided 
2 kg of dal (lentil) per month at Rs. 30 per kg and one litre of edible oil 
per month at Rs. 25 per litre through the Public Distribution System. In 
this regard, reference was made to a similar scheme which is said to be 
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working quite well in Tamil Nadu. 
(iv) Children affected by the drought should be provided one 
egg or 200 gms of milk per day (6 days a week) under the Mid-Day 
Meal Scheme. In addition to this, the Mid-Day Meal Scheme should 
continue during the summer vacation period in schools so that children 
c are not deprived of their meals, including eggs or milk, as the case may 
be. 
3. The Union oflndia has explained in its response that in terms 
of Section 3 of the NFS Act the monthly entitlement of food grains is 5 
kg per person for eligible households under 'priority' category and 35 
D per kg per family under the Antyodaya Anna Yojna for rice, wheat and 
coarse grains. Coverage under the NFS Act has been delinked from 
poverty estimates and is substantially above the percentage of population 
living below the poverty line. It is submitted that coverage under the 
NFS Act has to be determined by each State and the criteria for 
identification of priority households and their actual identification is the 
E responsibility of the State Government. It is further stated that the State 
Government is expected to digitize the
beneficiary database and also set 
up a 'grievance redressal mechanism'. 
4. For implementation of the NFS Act, the State Government is 
required to complete all preparatory steps for which guidelines have 
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been issued by the Government of India. In this context, it is stated that 
the implementation of the NFS Act has started in 32 States and Union 
Territories and as far as Gujarat is concerned it will implement the NFS 
Act from 1" April 2016. During the course of hearing, we were informed 
that thankfully Gujarat is now implementing the NFS Act. 
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5. It is also stated that since drought is a temporary phenomenon, 
additional food grains are made available on request basis from the State 
Government. It is further stated that for 2015-16, only Maharashtra made 
a request for additional food grain allocation for drought affected people 
and the Government of India made available 1.63 lakh tons of rice and 
H 2.44 lakh tons of wheat, as requested.
SWARAJ ABHIYAN - (II) v. UNION OF INDIA & ORS. 
299 
[MADAN B. LOKUR, J.] 
6. With regard to the supply of dal/lentil and edible oils, it is stated A 
by the Union of India that under the NFS Act there is no provision to 
supply these items. In the absence of sufficient domestic availability of 
these items, their supply under the Public Distribution System is difficult 
to ensure and there are fiscal constraints on stretching the food subsidy 
bill by including the supply of dal/lentil and edible oils. However, the 
B 
State Governments are at liberty to distribute additional items out of 
their own resources. In fact, Andhra Pradesh, Chhattisgarh, Haryana, 
Kamataka and Telangana are distributing dal/lentil or edible oils to sections 
of society while Chhattisgarh is distributing chana (gram) in scheduled 
areas. 
7. With regard to the Mid-Day Meal Scheme, it is stated by the 
Union oflndia that there is no special provision for the supply of eggs or 
milk but there is a requirement of minimum calorific and nutritional 
contents. These are as follows: 
Components 
Primary 
Upper Primary 
Calories 
450 Cal 
700 Cal 
Protein 
12gm 
20gm 
Micronutrients 
Adequate quantities of micronutrients 
like Iron, Folic Acid, Vitamin A etc. 
8. It is further stated by the Union of India that the menu under 
the Mid-Day Meal Scheme is locally decided and of the 12 States that 
we are concerned with, only 5 States that is Andhra Pradesh, Karnataka, 
Madhya Pradesh, Odisha and Telangana
provide either eggs or milk 
under the Mid-Day Meal Scheme. According to Swaraj Abhiyan, 
additional or different items like chana (for example) is provided by 4 
other States, Chhattisgarh, Gujarat, Jharkhand and Maharashtra. 
Admittedly, neither eggs nor milk nor any other additional item is provided 
by 3 States, that is, Bihar, Haryana and Uttar Pradesh. 
9. With regard to continuing the Mid-Day Meal Scheme during 
the summer vacations in the drought affected areas, the Union oflndia 
says that only 3 of the States that we are concerned with, that is, 
Kamataka, Maharashtra and Uttar Pradesh made such a proposal during 
2015-16 and that was sanctioned by the Performance Appraisal Board. 
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A As far as 2016-17 is concerned, only Chhattisgarh, Karnataka and 
Madhya Pradesh have made a request and that is under consideration 
by the Performance Appraisal Board. 
B 
c 
I 0. The monitoring and implementation of the NFS Act is really 
the duty and responsibility of the State Food Commission under Section 
16 of the NFS Act. We are told that not every State has established such 
a Commission making it difficult for any corrective or remedial measures 
in respect of the review and implementation of the NFS Act. It is high 
time that the machinery under the NFS Act is put in place by all concerned 
otherwise the enactment of social justice legislations will have no meaning 
at all. 
Discussion and conclusions 
11. We are quite surprised that with regard to the implementation 
of the NFS Act, even though the statute was passed by Parliament and 
it extends to the whole oflndia and is deemed to have come into force 
D on s•h July 2013, some States have not implemented it. As per the chart 
provided to us by learned counsel for the petitioner in the Note, the State 
of Uttar Pradesh has partially implemented the NFS Act in the sense 
that it has been implemented only in 28 of its 75 districts. Gujarat has 
admittedly implemented the NFS Act only from I~ April 2016. 
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12. It is surprising that the implementation of a law enacted by 
Parliament such as the NFS Act is left to the whims and fancies of the 
State Governments, and
it has taken more than two years after the NFS 
Act came into force for Gujarat to implement it and Uttar Pradesh has 
only implemented it partially. This is rather strange. A State Government, 
by delaying implementation of a law passed by the Parliament and 
F assented to by the President of India, is effectively refusing to implement 
it and Parliament is left a mute spectator. Does our Constitution 
countenance such a situation? Is this what 'federalism' is all about? 
Deliberate inaction in the implementation of a parliamentary statute by a 
State Government can only lead to utter chaos or worse. One can hardly 
G imagine what the consequence would be if a State Government, on a 
similar logic, decides that it will not implement other parliamentary statutes 
meant for the benefit of vulnerable sections of society. Hopefully, 
someone, somewhere, sometime will realize the possible alarming 
consequences. 
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13. We find force in the submission of the learned Additional
SWARAJ ABHIYAN - (II) v. UNION OF INDIA & ORS. 
301 
[MADAN B. LOKUR, J.] 
Solicitor General that no mandamus can be issued by this Court to the 
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State Governments to implement the NFS Act beyond what is required 
by the terms and provisions of the statute. In other words, it is not possible 
for us to issue a positive direction to the State Governments to make 
available to needy persons any item over and above what is mandated 
by the NFS Act, such as dal/lentil and edible oil (or any other item for 
that matter) to all households in the drought affected areas. Today, Swaraj 
Abhiyan prays for the supply of dal/lentil and edible oils; tomorrow some 
other NGO might pray for the supply of some other items. This might 
become an endless exercise and would require us to go beyond what 
Parliament has provided. While this Court or any other constitutional 
court can certainly intervene, to a limited extent, in issues of governance 
it has also to show judicial restraint in some areas of governance, and 
this is one of them. 
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14. In State of Himllclwl Prtldeslt v. Umed Ram Sharma
1 the 
High Court had treated a letter as a public interest petition received 
from some poor and mostly Harijan residents of a village complaining of D 
the failure of the State Government to complete the construction of a 
road due to collusion between the residents of another village and the 
administrative authorities. The High Court heard the matter and gave 
directions, inter alia, for
early completiQll of the road. This was 
challenged by the State before this Court. This Court took resort to 
Article 21 of the Constitution and observed that for residents of hilly 
areas, access to roads is access to life itself. This Court held: 
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"The entire State ofHimachal Pradesh is in hills and without 
workable roads, no communication is possible. Every person 
is entitled to life as enjoined in Article 21 of the Constitution 
and in the facts of this case read in conjunction with Article 
19(1 )( d) of the Constitution and in the background of Article 
38(2) of the Constitution every person has right under Article 
19(1 )(d) to move freely throughout the territory of India 
and he has also the right under Article 21 to his life and that 
right under Article 21 embraces not only physical existence 
oflife but the quality oflife and for residents of hilly areas, 
access to road is access to life itself. These propositions 
are well settled. We accept the proposition that there should 
be road for communication in reasonable conditions in view 
1 (1986) 2 sec 68 
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of our constitutional imperatives and denial of that right 
would be denial of the life as understood in its richness and 
fullness by the ambit of the Constitution. To the residents 
of the hilly areas as far as feasible and possible society has 
constitutional obligation to provide roads for 
communication." ' 
15. After referring to Article 38(2) of the Constitution, this Court 
observed that "access to life should be for the hillman an obligation of 
the State but it is primarily within the domain of the legislature and the 
executive to decide the priority as well as to determine the urgency." 
There had been allocation of funds and the "court has directed the 
executive to bring it to the notice of the legislature if some reallocation 
was feasible amongst the sanctioned expenditure for roads leaving the 
priorities to the discretion of the competent authorities." 
16. In State of H.P. v. High Court of H.P.: the High Court acted 
on a newspaper report and directed the construction of a certain road 
during the current financial year and the State Government was directed 
to make the funds available for the purpose. This Court found it extremely 
difficult to uphold the order of the High Court. Two principal reasons 
were given: firstly, it is for the State Government to determine its priorities 
and allocate funds, e.ven though it might be necessary to lay a 
communication network; secondly, the
necessity could be fulfilled only 
on the availability offunds. "Any interference of this nature would require 
diversion of funds carefully allocated on the basis of priority re,quirements 
and thereby disturb the programme of devefopment chalked out by the 
State Government." 
I 7. In matters involviiig financial issues and prioritization of 
finances, this Court should defer to the priorities determined by the State, 
unless there is a statutory obligation that needs to be fulfilled, by the 
State. It is for this reason that in the matter of construction ofroads (for 
example) this Court has left the prioritization to the State. 
18. In State of Uttaranclwl v. Ba/want Singh Chaufal 3 this 
Court observed that public interest litigation in India has travelled through 
three phases. These are: 
' (2oooi 1 o sec 646 
'(2010) 3 sec 402
SWARAJ ABHIYAN - (ll) v. UNION OF INDIA & ORS. 
[MADAN B. LOKUR, J.] 
Phase I. - It deals with cases of this Court where directions 
and orders were passed primarily to protect fundamental 
rights under Article 21 of the marginalised groups and 
sections of the society who because of extreme poverty, 
illiteracy and ignorance cannot approach this Court or the 
High Courts. 
During this phase, the courts relaxed the traditional rule of locus 
standi and broadened the definition of aggrieved persons and gave 
directions and orders to preserve and protect the fundamental rights of 
marginalized, deprived and poor sections of society. 
Phase II. - It deals with the cases relating to protection, 
preservation of ecology, environment, forests, marine life, 
wildlife, mountains, rivers, historical monuments, etc. etc. 
303 
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This hardly needs any elucidation. This Court has been in the 
forefront in issues relating to the environment, forests and historical 
movements, amongst others. There are several decisions of this Court D 
in this regard. 
Phase III. - It deals with the directions issued by the Courts 
in maintaining the probity, transparency and integrity in 
governance. 
In the third phase, the constitutional courts "broadened the scope 
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of public interest litigation and also entertained petitions to ensure that in 
governance of the State, there is transparency and no extraneous 
considerations are taken into consideration except the public interest." 
19. As
far as the present case is concerned, there is no doubt that 
provision of food grains as per the provisions of the NFS Act is a statutocy 
F 
obligation on the State. This Court can certainly direct the State to 
faithfully implement the provisions of the NFS Act. Unfortunately, there 
is no statutocy or constitutional obligation on the State to provide edible 
oils and dal/lentil to people in distress. If these items were vital for the 
survival of the people, this Court would have surely directed their G 
distribution. But there is nothing to suggest that without edible oils and 
dal/lentil the fundamental right of the people in drou_ght affected areas 
guaranteed under Article 21 of the Constitution is violated. We therefore 
cannot reasonably read into the Constitution or the law something that is 
not there. That apart, although the number of affected households is not 
available with us, we can only assume the number to be sizeable given 
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the fact that drought has been declared in vast areas of the country. 
Even on a conservative estimate, more than 33 crore people are affected 
by drought with varying degrees of distress and intensity. The estimate 
of Swaraj Abhiyan is between about 40 crore and over 50 crore people 
being affected by drought. All that we can say and do say in this regard 
is that at least l/41h of the country's population (if not l/3'ct) is affected 
by drought and the State Governments must take appropriate steps to 
ensure that at least the statutory requirement of food grains is made 
available to the people in the drought affected areas of the country. In 
addition, and to the extent possible, the State Government should take 
appropriate measures to provide dal/lentil and an appropriate cooking 
medium and any other items of necessity"to persons affected by the 
drought and if a request is made by a State Government to the 
Government of India, it must consider the request with compassion. 
20. We would like to draw attention to Article 4 7 of the Constitution 
which provides that one of the primary duties of the State is to raise the 
level ofnutrition and the standard ofliving of the people.< Although Artie le 
47 is not enforceable being a Directive Principle, there is considerable 
moral force and authority in this provision to persuade the State 
Governments and the Government of India to attempt at ensuring
that 
the people, particularly those in drought affected areas, are provided 
adequate food grains and a cooking medium for the preparation of their 
meals. 
21. Similarly, the entitlement of food grains at 5 kg per person per 
month (as per the NFS Act) is a goal that must be achieved by the State 
at the earliest particularly in drought affected areas. In fact, statute or 
no statute and implementation or non-implementation of a law enacted 
by Par! iament, the State ought to appreciate and realize that an adequate 
supply of food grains must be made available without much fuss to people 
In drought affected areas. As it is, because of the drought such persons 
undergo immense hardship mainly for reasons beyond their control and 
ifthere is a scarcity of food, it would only add to their misery and adversity 
' 47. Duty of the State to raise the level of nutrition and the standard of 
living and to improve public health - The State shall regard the raising of the leYel 
of nutrition and the standard of living of its people and the improvement of public 
health as among its primary duties and, in particular. the State shall endeavour to 
bring about prohibition of the consumption. except for medicinal purposes of 
intoxicating drinks and of drugs which are injurious to health.
SWARAJ ABHIYAN - (II) v. UNION OF INDIA & ORS. 
[MADAN B. LOKUR, J.] 
ifnot multiply it. The State being a welfare State must take these factors 
into consideration and strain every nerve to ensure that the mandate of 
the NFS Act is adhered to. 
22. In this context, it would be inappropriate for the State 
Governments to deprive any household in drought affected areas of the 
requisite food grains merely because they do not have a ration card. We 
find substance in the contention of learned counsel for Swaraj Abhiyan 
that in grave and emergent situations such as those in the drought affected 
areas, the requirement of a ration card for obtaining food grains can only 
be considered a procedural requirement and that requirement should be 
substituted with a valid identity card or any appropriate proofofresidence 
that is acceptable to the functionaries in the State Governments, who 
need to construe such a condition open-handedly and without being tight-
fisted. 
23. We reject the contention on behalf of the Union oflndia that 
fiscal constraints or an increase in the food subsidy bill can be a reason 
for denying relief to persons in drought affected areas. Our constitutional 
jurisprudence has travelled an enormous distance over the years to even 
think of attempting a roll-back. 
24. In Municipal Cou11cil, Rat/am v. Vardiclw11 5 this Court took 
the view that a plea of financial inability cannot be an excuse for 
disregarding statutory duties. It was held in paragraph 12
of the Report: 
"The statutory setting being thus plain, the municipality 
cannot extricate itself from its responsibility. Its plea is not 
that the facts are wrong but that the law is not right because 
the municipal funds being insufficient it cannot carry out 
the duties under Section 123 of the Act. This "alibi" made 
us issue notice to the State which is now represented by 
counsel, Shri Gambhir, before us. The plea of the 
municipality that notwithstanding the public nuisance 
financial inability val idly exonerates it from statutory liability 
has no juridical basis. The criminal procedure code operates 
against statutory bodies and others regardless of the cash 
in their coffers, even as human rights under Part III of the 
Constitution have to be respected by the State regardless 
of budgetary provision. Likewise, Section 123 of the Act 
'(t980J 4 sec 162 
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[2016] 9 S.C.R. 
has no saving clause when the municipal council is penniless. 
Otherwise, a profligate statutory body or pachydermic 
governmental agency may legally defy duties under the law 
by urging in self-defence a self-created bankruptcy or 
perverted expenditure budget. That cannot be:" 
25. Similarly, in Khatri (II) v. State of Biliat" this Court referred 
to a constitutional obligation (as against a statutory obligation) of providing 
free legal services to an indigent person and had this to say in paragraph 
5 of the R~port: 
"Mr K.G. Bhagat on behalf of the State agreed that in view 
of the decision of this Court the State was bound to provide 
free legal services to an indigent accused but he suggested 
that the State might find it difficult to do so owing to financial 
constraints. We may point out to the State ofBihar that it 
cannot avoid its constitutional obligation to provide free legal 
services to a poor accused by pleading financial or 
administrative inability. The State is under a constitutional 
mandate to provide free legal aid to an accused person who 
is unable to secure legal services on account of indigence 
and whatever is necessary for this purpose has to be done 
by the State. The State may have its financial constraints 
and its priorities in expenditure but, as pointed out by the 
court in Rhem v. Malco/1117 "the law does not permit any 
Government to deprive its citizens of constitutional
rights 
on a plea of poverty" and to quote the words of Justice 
Blackmun in Jackson v. Bishop8 "humane considerations 
and constitutional requirements are not in this day to be 
measured by dollar considerations." 
26: Finally, in Pascl1im Bangll K/1et Mazdoor Samity v. State of 
H-:B. 9 th is Court referred to another constitutional obi igation of providing 
adequate medical services to the people and held in paragraph 16 of the 
Report as follows: 
"It is no doubt true that financial resources are needed for 
providing these facilities. But at the same time it cannot be 
• (1981) 1 sec 627 
7 377 F Supp 995 
8 404 F Supp 2d 571 
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9 (1996)4SCC37
SWARAJ ABHIYAN - (II) v. UNION OF INDIA & ORS. 
[MADAN B. LOKUR, J.] 
ignored that it is the constitutional obligation of the State to 
provide adequate medical services to the people. Whatever 
is necessary for this purpose has to be done. In the context 
of the constitutional obligation to provide free legal aid to a 
poor accused this Court has held that the State cannot avoid 
its constitutional obligation in that regard on account of 
financial constraints. [See: Khatri {II) v. State of Bihar] 
The said observations would apply with equal, if not greater, 
force in the matter of discharge of constitutional obligation 
of the State to provide medical aid to preserve human life. 
In the matter of allocation of funds for medical services the 
said constitutional obligation of the State has to be kept in 
view." 
There is undoubtedly a distinction between a statutory obligation 
307 
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and a constitutional obligation but there can be no doubt that the right to 
food is actually a constitutional right and not merely a statutory right. 
[See for example: Slza11tistar Builders v. Narayan Kltinralal D 
Totame. 10] In any event, even if the right to food is a statutory right, it 
would be the obligation of the State to make all possible efforts and 
some more to ensure thatto the extent possible, adequate food grains 
are available to all and particularly to those in drought affected areas. 
There can hardly be any dispute on this. In this context, it would be 
worth
recalling the Preamble to the NFS Act which states that it is "An 
Act to provide for food and nutritional security in human life cycle 
approach, by ensuring access to adequate quantity of quality food at 
affordable prices to people to live a life with dignity and for matters 
connected therewith or incidental thereto." 
27. As far as the provision of eggs or milk for Mid-Day Meals is 
concerned, there is no dispute that calorific and nutritional contents for 
children have been prescribed under the Mid-Day Meal Scheme. How 
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that standard is to be met is for each State Government to decide and no 
direction can be given in this regard by this Court. Apart from milk and 
eggs, there are other nutritidnal items that can be provided, such as 
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chana or gram. However, it is unfortunate that neither milk nor eggs or 
anything else is provided under the Mid-Day Meal Scheme in Bihar, 
Haryana and Uttar Pradesh. Even in the States that we are concerned 
with, eggs or milk is not being provided to ~he beneficiaries on a daily 
'" <I 990) 1 sec s20 
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SUPREME COURT REPORTS 
[2016] 9 S.C.R. 
basis or 5 days in a week, except in Chhattisgarh where eggs are provided 
for 6 days in a week. In other States that provide eggs or milk, the 
provision varies from one day to three days per week. 
28. No one can doubt that children are the future of our country 
and ifthere is some stinginess in providing them with adequate nutrition, 
the country as a whole is deprived in future of taking the benefit of their 
potential. Therefore, the calorific and nutritional requirements mentioned 
by the Union of India cannot be treated as the maximum requirements 
but only as the minimum requirements. 
29. As regards the provision of extending the Mid-Day Meal 
Scheme during the summer vacations, it is a pity that forthe year2016-
17 only three States, that is Karnataka, Madhya Pradesh and Chhattisgarh 
have submitted a proposal for consideration to the Government oflndia. 
ls it that the States expect the children and their families to fend for 
themselves during the summer months? Maharashtra had submitted a 
proposal in 2015-16 to the Union oflndia and that was accepted as it is 
by the Performance Appraisal Board but no proposal appears to have 
been made by Maharashtra for 2016-17. Is it that the drought conditions 
have improved in Maharashtra over the last one year? We do not know. 
We have not been given any reason for not extending the Mid-Day 
Meal Scheme into the summer vacation in respect of some of the
drought 
affected States before us, nor is there any opposition to the prayer for 
extension made by Swaraj Abhiyan in this regard. In fact the Guidelines 
of September 2006 for the Mid-Day Meal Scheme provide in Chapter 5 
thereof (paragraph 5.1 ( 4)(iii) as follows: 
"In case notification declaring an area as 'drought-affected' 
is issued at a time when summer vacation has already 
commenced or is about to commence, State Govt. should 
provide mid-day meal in primary schools located in such 
areas in anticipation of release of Central assistance." 
Accordingly, we take it, that the State Government of each of the 
drought affected States before us (other than the three States mentioned 
above) are not averse to extending the Mid-Day Meal Scheme into the 
vacation period for schools in the drought affected areas. 
Directions 
30. In view of the discussion and the conclusions arrived at by us,
SWARAJ ABHIYAN - (II) v. UNION OF INDIA & ORS. 
309 
[MADAN B. LOKUR, J.) 
we issue the follow directions: 
A 
1. Each of the States before us shall establish an internal grievance 
mechanism and appoint or designate for each district a District Grievance 
Redressal Officer as postulated by Section 14 and Section 15 respectively 
of the NFS Act within one month from today, unless these provisions 
have already been complied with. The said Officer would also be entitled 
B 
to address grievances relating to non-supply of food grains due to the 
absence of a ration card. 
2. Each of the States before us shall constitute a State Food 
Commission for the purpose of monitoring and reviewing the 
implementation of the NFS Act as postulated by Section 16 thereof within c 
two months from today, unless a State Food Commission has already 
been constituted. 
3. In the States in which drought has been declared or might be 
declared in the future, all households should be provided with their monthly 
entitlement of food grains in terms of the NFS Act regardless of whether D 
they fall in the category of priority household or not. The provision made 
under the NFS Act shall be in addition to and not in derogation of any 
other entitlement under any other government scheme. 
4. No household in a drought affected area shall be denied food 
grains as required under the NFS Act only because the household does 
not have a ration card. The requirement of a household having a ration 
card is
directed to be substituted by an appropriate identification or proof 
of residence that is acceptable to the State Government. 
5. It is made clear that each of the States before us is fully entitled 
to provide any food grains or other items over and above and in addition 
to the entitlement of a household under the NFS Act. There is no restriction 
in this regard. 
E 
F 
6. The States ofBihar, Haryana and Uttar Pradesh must within a 
month from today make adequate provision for the supply of eggs or 
milk or any other nutritional substitute for children under the Mid-Day 
G 
Meal Scheme. Eggs, milk or another nutritional substitute should be made 
available preferably five days in a week or at least three days in a week. 
The other States before us must make a similar provision for the supply 
of eggs or milk or any other nutritional substitute preferably five days in 
a week or at least three days in a week. Keeping in mind the children of 
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[2016] 9 S.C.R. 
A this country, financial constraints shall not be an excuse for not complying 
with this direction. It is a sad commentary that we should have to say 
this but we need to in the interest of the children of our country. 
7. The States before us are directed to extend the Mid-Day Meal 
Scheme for the benefit of children during the summer vacation period in 
B schools, if the extension has not yet been made, within a week from 
today. The Union oflndia shall immediately approve any such a proposal 
in consultation with these State Governments. This direction is being 
passed in the interest of children in drought-affected areas. 
31. We might mention that the Union of India usually brings into 
c force a statute without putting in place the implementation machinery. 
This is clearly demonstrated by the fact that the mechanism for enforcing 
several provisions of the NFS Act has.not been established or constituted. 
This is completely inexplicable. We fail to understand how a statute 
enacted by Parliament can be given effect to without appropriate rules 
and regulations being framed for putting in place the nuts and bolts needed 
D to give teeth to the law or setting up mechanisms in accordance with the 
provisions of the statute. It is perhaps this tardiness in execution that 
enables some State Governments to take it easy and implement the law 
whenever it is convenient to do so. 
E 
Nidhi Jain 
Directions issued.