Holding

The Court held that it cannot compel states to supply items not mandated by the National Food Security Act, but it may direct them to faithfully implement the Act’s provisions, establish grievance‑redressal mechanisms, and ensure food‑grain entitlement to all drought‑affected households, as well as improve mid‑day meal nutrition.

Summary

The Supreme Court heard a public‑interest writ petition filed by Swaraj Abhiyan seeking comprehensive food‑security measures for persons affected by drought, including provision of food grains, dal, edible oil and enhanced mid‑day meals. The petitioners argued that the non‑implementation of the National Food Security Act (NFS Act) by several states violated the right to life under Art. 21 and the directive principle under Art. 47. The Court held that while it cannot issue mandamus compelling states to supply items not mandated by the NFS Act, it can direct states to faithfully implement the Act’s provisions, establish grievance‑redressal mechanisms, and ensure food‑grain entitlement to all drought‑affected households irrespective of priority status or ration‑card possession. It also directed states to improve nutritional provisions under the Mid‑Day Meal Scheme and to extend the scheme during summer vacations. Accordingly, the Court issued detailed directions to the concerned states and the Union of India, and disposed of the petition with those directions.

Issues considered

Whether the Supreme Court can issue mandamus to State Governments to implement the National Food Security Act beyond its statutory provisions, such as supplying dal and edible oil.
Whether the failure to provide dal and edible oil in drought‑affected areas violates the right to life under Article 21.
Whether Directive Principle Article 47 is enforceable to compel states to provide nutrition and raise living standards.
Whether the Court can direct states to provide food‑grain entitlement to all households in drought‑affected areas irrespective of priority status or possession of a ration card.
Whether the Court can order states to establish grievance‑redressal mechanisms and State Food Commissions under the NFS Act.
Whether the Court can direct states to enhance the Mid‑Day Meal Scheme by supplying eggs, milk or other nutritional substitutes and to extend the scheme during summer vacations.

Legislation cited

National Food Security Act, 2013s. 10, s. 14, s. 15, s. 16, s. 2(14)

Subjects

National Food Security Actfood securitydroughtpublic interest litigationmandamusArticle 21Article 47mid‑day meal schemestate obligationsgrievance redressalimplementation machinery

Judgment

[2016] 9 S.C.R. 295

SWARAJ ABHIYAN - (II) A
v.
UNION OF INDIA & ORS.
(Writ Petition (Civil) No. 857 of2015)
~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
H
295
296 SUPREME COURT REPORTS [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.
State ofHimachal Pradesh v. Umed Ram Sharma (1986)
2 SCC 68 : 1986 (1) SCR 251; State of H.P. v. High
D
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;
E 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
F
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

G 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
H
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.
B
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,
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 1l 1h 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 E
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 F
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 I0 thereof. The provision for food grains should be in addition G
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
298 SUPREME COURT REPORTS [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
B 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
F 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.
G 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 c
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
D
Calories 450 Cal 700 Cal

Protein 12gm 20gm

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

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 F
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.
G
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.
H
300 SUPREME COURT REPORTS [2016) 9 S.C.R.

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.
I0. The monitoring and implementation of the NFS Act is really
the duty and responsibility of the State Food Commission under Section
B 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.
c
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.
E 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.
13. We find force in the submission of the learned Additional
H
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 A
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
B
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 c
it has also to show judicial restraint in some areas of governance, and
this is one of them.
14. In State of Himllclwl Prtldeslt v. Umed Ram Sharma the 1

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 E
areas, access to roads is access to life itself. This Court held:
"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 F
19(1 )( d) of the Constitution and in the background ofArticle
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 G
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
H
302 SUPREME COURT REPORTS [2016] 9 S.C.R.

A 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." '
B
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
c 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 ofH.P. v. High Court of H.P.: the High Court acted
on a newspaper report and directed the construction of a certain road
D
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
E communication network; secondly, the necessity could be fulfilled only
on the availability offunds. "Any interference ofthis 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."
F 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.
G 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 1o sec 646
'(2010) 3 sec 402
H
SWARAJ ABHIYAN - (ll) v. UNION OF INDIA & ORS. 303
[MADAN B. LOKUR, J.]

Phase I. - It deals with cases of this Court where directions A
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.
B
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, c
preservation of ecology, environment, forests, marine life,
wildlife, mountains, rivers, historical monuments, etc. etc.
This hardly needs any elucidation. This Court has been in the
forefront in issues relating to the environment, forests and historical
movements, amongst others. There are several decisions of this Court 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 E
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 H
304 SUPREME COURT REPORTS (2016] 9 S.C.R.

A 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/4 1h of the country's population (if not l/3'ct) is affected
B
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
c 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 47 of the Constitution
which provides that one of the primary duties of the State is to raise the
D 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
E 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
F 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
G
' 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.
H
SWARAJ ABHIYAN - (II) v. UNION OF INDIA & ORS. 305
[MADAN B. LOKUR, J.]

ifnot multiply it. The State being a welfare State must take these factors A
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 B
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
c
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: E

"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 F
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 G
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
H
306 SUPREME COURT REPORTS [2016] 9 S.C.R.

A 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:"
B 25. Similarly, in Khatri (II) v. State ofBiliat" 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
c 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
D 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
E and its priorities in expenditure but, as pointed out by the
court in Rhem v. Malco/111 7 "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. Bishop 8 "humane considerations
and constitutional requirements are not in this day to be
F measured by dollar considerations."
26: Finally, in Pascl1im Bangll K/1et Mazdoor Samity v. State of
9
H-:B. 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:
G
"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
H 9
(1996)4SCC37
SWARAJ ABHIYAN - (II) v. UNION OF INDIA & ORS. 307
[MADAN B. LOKUR, J.]

ignored that it is the constitutional obligation of the State to A
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
B
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 c
view."
There is undoubtedly a distinction between a statutory obligation
and a constitutional obligation but there can be no doubt that the right to
food is actually a constitutional right and not merely a statutory right.
[See for example: 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
E
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 F
concerned, there is no dispute that calorific and nutritional contents for
children have been prescribed under the Mid-Day Meal Scheme. How
that standard is to be met is for each State Government to decide and no
direction can be given in this regard by this Court. Apart from milk and
eggs, there are other nutritidnal items that can be provided, such as G
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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308 SUPREME COURT REPORTS [2016] 9 S.C.R.

A 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,
B 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
c 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
D 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
E 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'
F 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
G 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,
H
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 E
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
F
to the entitlement of a household under the NFS Act. There is no restriction
in this regard.
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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310 SUPREME COURT REPORTS [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.