Tuesday, May 17, 2016

Swaraj Abhiyan V/s.Union of India -May 13, 2016


                        IN THE SUPREME COURT OF INDIA
                         CIVIL ORIGINAL JURISDICTION
                      WRIT PETITION (C) NO. 857 OF 2015

Swaraj Abhiyan – (II)                                       .…Petitioner
Union              of               India               &               Ors.

                               J U D G M E N T
Madan B. Lokur, J.
1.  In our judgment dated 11th 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 the petitioner Swaraj Abhiyan relating  to  the
implementation of the National Food Security Act, 2013 (for short  ‘the  NFS
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
petitioner made four suggestions and they are:
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  10
thereof. The provision for food grains should be in addition to and  not  in
derogation of any other entitlement in any other government scheme.
Households that do not have a ration card or  family  members  left  out  of
existing ration cards should be issued  special  and  temporary  coupons  on
production of an appropriate identity card or any other proof of  residence.

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  working  quite
well in Tamil Nadu.
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  are  not  deprived  of  their  meals,
including eggs or milk, as the case may be.
3.     The Union of India 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 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  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
4.     For implementation of the NFS Act, the State Government  is  required
to complete all preparatory steps for which guidelines have 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 1st April 2016.  During the course of  hearing,  we  were  informed
that thankfully Gujarat is now implementing the NFS Act.
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  2.44
lakh tons of wheat, as requested.
6.     With regard to the supply  of  dal/lentil  and  edible  oils,  it  is
stated 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 State Governments  are  at  liberty  to  distribute  additional
items out of their own resources. In  fact,  Andhra  Pradesh,  Chhattisgarh,
Haryana, Karnataka 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  of
India 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              |12 gm                |20 gm                |
|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 of India says  that  only
3 of the States that we are concerned with, that is, Karnataka,  Maharashtra
and Uttar  Pradesh  made  such  a  proposal  during  2015-16  and  that  was
sanctioned by  the  Performance  Appraisal  Board.  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.

10.    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 of India and is deemed to have come into force on 5th  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 1st April 2016.
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  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  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  Solicitor
General that  no  mandamus  can  be  issued  by  this  Court  to  the  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.
14.    In State of Himachal Pradesh 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 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 completion 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:

“The entire State of Himachal 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 of life but the  quality  of
life 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  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

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.[2] 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, even though it might be necessary  to  lay  a  communication
network;  secondly,  the  necessity  could  be   fulfilled   only   on   the
availability of funds.  “Any  interference  of  this  nature  would  require
diversion  of  funds  carefully  allocated  on   the   basis   of   priority
requirements and thereby disturb the programme of  development  chalked  out
by the State Government.”
17.     In  matters  involving  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  of
roads (for example) this Court has left the prioritization to the State.
18.    In State of  Uttaranchal  v.  Balwant  Singh  Chaufal[3]  this  Court
observed that public interest litigation  in  India  has  travelled  through
three phases. These are:
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

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.

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 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  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
statutory obligation on the State.  This  Court  can  certainly  direct  the
State to faithfully implement the provisions of the NFS Act.  Unfortunately,
there is no statutory 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
distribution. But there is nothing to suggest that without edible  oils  and
dal/lentil the fundamental right of the people  in  drought  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  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
1/4th of the country’s population (if not 1/3rd) 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  47  of  the  Constitution
which 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.[4]  Although
Article 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
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
Parliament, 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  if
there is a scarcity  of  food,  it  would  only  add  to  their  misery  and
adversity if not 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  proof  of
residence that is acceptable to the functionaries in the State  Governments,
who need to construe such a condition open-handedly and without being tight-
23.    We reject the contention on behalf of the Union of India 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 Council, Ratlam v.  Vardichan[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  validly  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 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 Bihar[6]  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 Report:

“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  of
Bihar 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.
Malcolm[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  measured  by  dollar

26.    Finally, in Paschim Banga Khet Mazdoor Samity  v.  State  of  W.B.[9]
this Court  referred  to  another  constitutional  obligation  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 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  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: Shantistar Builders v. Narayan  Khimalal  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 that to 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
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  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 nutritional items that can be provided, such as  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 the beneficiaries on a daily 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  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. 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 for  the  year  2016-17  only  three
States, that is Karnataka, Madhya Pradesh and Chhattisgarh have submitted  a
proposal for consideration to the  Government  of  India.  Is  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 of India 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.

30.    In view of the discussion and the conclusions arrived at  by  us,  we
issue the follow directions:

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  to
address grievances relating to non-supply of food grains due to the  absence
of a ration card.

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 two months from today,  unless  a
State Food Commission has already been constituted.

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
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.

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.

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.

The States of Bihar, 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  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  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.

The States before us are directed to extend the Mid-Day Meal Scheme for  the
benefit of children during the summer vacation period  in  schools,  if  the
extension has not yet been made, within a week  from  today.  The  Union  of
India 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 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  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.

                                                            (Madan B. Lokur)

New Delhi;                                           ………………………J
May 13, 2016                                                 (N.V. Ramana)
                        IN THE SUPREME COURT OF INDIA
                         CIVIL ORIGINAL JURISDICTION
                      WRIT PETITION (C) NO. 857 OF 2015

Swaraj Abhiyan – (III)                               .…Petitioner
Union              of               India               &               Ors.
                               J U D G M E N T
Madan B. Lokur, J.
1.      In our judgment dated 11th May, 2016 we had considered the issue  of
the drought or drought-like conditions  prevailing  in  some  parts  of  the
country and had issued certain directions for compliance.  Subsequently,  in
a related matter in our judgment  pronounced  today,         we  have  dealt
with the provisions of the National Food Security Act, 2013 and the  Mid-Day
Meal Scheme announced by the Government of India and issued  directions  for
the effective implementation of the statute and the Mid-Day Meal  Scheme  to
benefit people (including  children)  particularly  those  affected  by  the
drought or drought-like conditions.
2.     In this judgment we deal  with  the  implementation  of  the  Mahatma
Gandhi National Rural Employment Guarantee Act, 2005 and the Mahatma  Gandhi
National Rural Employment Guarantee Scheme framed under  the  provisions  of
Section 4 of the said Act.[11]
Implementation of the MGNREG Scheme
3.  The Mahatma Gandhi National Rural Employment Guarantee  Act,  2005  (for
short the ‘NREG Act’) has a very simple and straightforward  Preamble  which
says that it is:
“An Act to provide  for  the  enhancement  of  livelihood  security  of  the
households in rural areas of the country by providing at least  one  hundred
days of  guaranteed  wage  employment  in  every  financial  year  to  every
household whose adult members volunteer to do unskilled manual work and  for
matters connected therewith or incidental thereto.”

For the effective  implementation  of  the  NREG  Act,  the  Mahatma  Gandhi
National Rural Employment Guarantee Scheme  (for  short  ‘the  Scheme’)  has
been announced and is implemented throughout the country.
4.  Learned counsel for the petitioner submits that  the  Scheme  is  demand
driven and in terms of Section 3(1) read with Section 3(3) of the NREG  Act,
every rural household registered for employment is entitled as a  matter  of
right to have one adult person  provided  with  unskilled  manual  work  and
adequate wages under the Scheme for a minimum of 100 days in a year.[12]  In
other words,  if  an  adult  member  of  a  registered  rural  household  is
voluntarily desirous of doing unskilled manual work,  he/she  is  guaranteed
work for at least 100 days in a year.
5.     The first submission of the petitioner in this context  is  that  the
Government of India and the  concerned  State  Governments  are  obliged  to
ensure  that  adequate  budgetary  provision  is  made  for  the   financial
implementation of the Scheme. It is submitted that in addition  to  ensuring
adequate financial provision,  the  Government  of  India  as  well  as  the
concerned State Governments should not place any budgetary limit  under  the
Scheme if employment is sought over and above 100 days.  The  first  prayer,
therefore, is for issuing appropriate directions to the Union  of  India  in
this behalf. While the guarantee is for  100  days  in  a  year,  the  State
should encourage employment for more than that.
6.     The second prayer made in this context is that even if  there  is  no
budgetary limit, there is an informal cap on  funds  under  the  Scheme  and
that should be done away with. To appreciate what is sought to  be  conveyed
by this prayer requires an understanding of the procedure  followed  by  the
Government of India in the implementation of the Scheme.
7.     Reference is made by learned counsel to the  “Operational  Guidelines
for NREGA” issued  in 2013  particularly  paragraph  6.9  thereof.[13]  This
paragraph provides that the Labour Budget (or LB)  should  be  finalized  by
each State by 31st December for all Gram Panchayats (or  GP)  in  the  State
and placed before an Empowered Committee chaired by  the  Secretary  in  the
Ministry of Rural Development. This projected Labour Budget is then  slashed
and an “agreed to” Labour Budget is prepared which is only a  percentage  of
the Labour Budget presented by the State Government.  It is  submitted  that
in the financial year 2014-15 the “agreed to” Labour Budget was 78%  of  the
Labour Budget and for the financial year  2015-16  the  “agreed  to”  Labour
Budget was 75% of the Labour Budget. This  is  the  informal  cap  on  funds
adverted to by learned counsel.
8.  It is submitted that the consequence of this informal cap  is  that  the
State Governments do not  have  an  adequate  fund  at  their  disposal  and
because of  a  lack  of  funds,  they  are  unable  to  encourage  voluntary
unskilled manual labour.  Resultantly, they cannot reach the target  of  100
days of employment per household per year. Since there is a shortage of  the
‘workforce’ caused by a lack of funds, the State Governments  are  compelled
to drop some development works.  In other words, fiscal  constraints  result
in a vicious cycle adversely impacting employment and development.
9.     The third prayer therefore relates to an additional consequence of  a
shortage of funds and a depleted ‘workforce’. The consequence, as  projected
by learned counsel, is that due to fiscal constraints, the unskilled  manual
labour put in is not duly compensated by  payment  of  wages  in  time,  the
excuse of the State Governments being a lack  of  funds.  Consequently,  the
pending wage bill continues to rise and that increasing  liability  actually
makes a complete mockery of the Scheme and the NREG Act since the  dues  are
cleared much later than required by law. This is a modern form of begar  and
is contrary to the spirit of Article 23 of the Constitution.
10.    The fourth prayer made under this heading is for  the  Government  of
India to increase the minimum statutory obligation of  100  days  employment
per rural household by another 50 days for drought affected States  for  the
year 2016-17 and to release the additional financial  requirements  well  in
11.    Responding on behalf of the Union of India, the  Joint  Secretary  in
the Ministry of Rural Development ably assisted us on facts on  this  issue.
She is extremely well-versed in the subject and we acknowledge her  valuable
assistance in understanding the point of view of the Government of India.
12.    The Government of India  acknowledges  that  the  minimum  guaranteed
employment is 100 days in a year in terms of the NREG Act, but  that  it  is
voluntary. That apart, it is submitted  that  given  the  magnitude  of  the
effort required, it is not easy to achieve the  target.  It  is  not  denied
that job cards have been issued to about 13.26  crore  households  all  over
the country and the number of active job cards is about 5.72 crores and  the
total households that have worked in the financial  year  2015-16  is  about
4.77 crores.  The total number of households that  have  been  provided  100
days of employment in the year 2015-16 is said to be 47,06,129 (as  on  19th
April, 2016)  and  in  the  drought  affected  States  the  number  of  such
households is said to be 27,64,508 (as on 19th April, 2016). The  petitioner
has different figures as on a different date but  it  is  not  necessary  to
decide which set of  figures  is  correct  since  the  Government  of  India
believes that in view of  the  large  numbers,  the  implementation  of  the
Scheme  is  dependent  upon  the  efforts  of  the  State  Governments.  The
Government of India can only persuade the State  Governments  to  reach  the
minimum statutory guarantee of 100 days employment. It is submitted that  as
a result of this  persuasion,  employment  provided  per  household  at  the
national level is 47 days which is the highest  achieved  in  the  last  six
years. As far as the drought affected  States  are  concerned,  the  average
days of employment provided per household is 46.4 days. Based  on  this,  it
is submitted that all efforts are being made  to  faithfully  implement  the
Scheme in spirit and no effort is spared in this regard.
13.    With regard to the informal capping  of  the  Labour  Budget,  it  is
submitted that in terms of Section 14(6) of the NREG  Act[14]  the  District
Programme Coordinator (who  is  usually  the  Collector  in  the  district),
prepares a district specific budget in December  for  the  coming  financial
year.  This budget contains the details of anticipated demand for  unskilled
manual work in the district. The district budgets for  the  State  are  then
collated at the State level and the State  Government  prepares  its  Labour
Budget. This is then communicated and presented to the Government  of  India
in the  Ministry  of  Rural  Development  which  then  examines  it  in  the
Programme Division in the Ministry in consultation with the concerned  State
Governments. Thereafter, the budget is finalized by an  Empowered  Committee
headed by the Secretary  in  the  Ministry  of  Rural  Development.   It  is
submitted that the Labour Budget is essentially a  tool  for  the  financial
management of funds released and is purely indicative.  What  the  Empowered
Committee does is to prepare a budget based on the performance of the  State
Government and  other  related  criteria  and  arrive  at  a  somewhat  more
realistic budget, which too is indicative.
14.    It is submitted that there is no cap on the  expenditure  and  States
may exceed the budget approved by  the  Empowered  Committee  after  seeking
approval of the  said  Ministry.  A  comparative  statement  of  expenditure
incurred over the last four financial years has been placed before us and  a
perusal thereof does show that there has been a fluctuation  in  expenditure
over the years as follows:
|                     |crores)              |(in crores)          |
|2011-12              |31,000.00            |37,072.82            |
|2012-13              |30,287.00            |39,778.29            |
|2013-14              |33,000.00            |38,601.59            |
|2014-15              |33,000.00            |36,032.48            |
|2015-16              |37,345.95            |42,253.75            |

15.    With regard to the shortage  of  funds,  it  is  submitted  that  the
Ministry of Rural Development  has  been  in  touch  with  the  Ministry  of
Finance to ensure that there is no such shortage. While a request  was  made
for the release of Rs. 5,000 crores to the Ministry of Finance what  was  in
fact released  is  only  Rs.  2,000  crores.  There  is  therefore  a  tacit
admission that the Ministry of Finance does not release  funds  in  adequate
amounts or in time for the effective implementation of the  Scheme.  In  her
presentation, the Joint Secretary  in  the  Ministry  of  Rural  Development
submitted  that  efforts  are  also  being  made  through  the  Ministry  of
Agriculture for the release of funds.
16.    It is submitted that notwithstanding this, some States have  in  fact
exceeded the budget approved by the Empowered Committee. There is  therefore
no question of any informal capping of funds.
17.    With regard to  the  pending  wage  bill  under  the  Scheme,  it  is
admitted that till 31st March, 2016 there is a pending balance of about  Rs.
8,000 crores. However, it is stated in the fourth  affidavit  filed  by  the
Government of India on or about 11th April,  2016  that  an  amount  of  Rs.
11,030 crores will be released to the States  within  one  week  subject  to
fulfillment of standard conditions by the States. This  will  take  care  of
the pending wage liability of Rs. 7,983 crores as on 31st  March,  2016  for
the financial year 2015-16.  This includes the wage liability of  Rs.  2,723
crores in the ten drought affected States that we are concerned  with  where
the Ministry  of  Rural  Development  has  allowed  additional  50  days  of
employment to  the  concerned  households.  It  is  further  stated  in  the
affidavit that an amount of Rs. 3,047 crores will be released to the  States
for implementing the Scheme in April 2016 (inclusive of wages  and  material
component). The pending liability of the material  component  of  Rs.  4,359
crores for the financial year 2015-16 (as  on  31st  March,  2016)  will  be
released in June, 2016.  In  other  words,  it  is  admitted  that  for  the
financial year 2015-16 there is an  existing  wage  and  material  component
liability in excess of Rs.12,000 crores.
18.    As far as the release of  funds  for  2016-17  is  concerned,  it  is
submitted by learned counsel for the petitioner that in terms of the  Master
Circular under the  Scheme,  funds  are  required  to  be  released  in  two
tranches, the first tranche in the first week of April (for the  period  1st
April to 30th September) and  the  second  tranche  in  the  first  week  of
October (for the period 1st October to 31st March).  It  is  submitted  that
therefore the release of Rs. 3,047 crores  for  implementing  the  programme
only for April 2016 is contrary to the Master Circular.
19.    It is explained in the fourth affidavit of the  Government  of  India
that the first tranche is actually released in two parts. The first part  of
the first tranche is released in the first week  of  April  because  of  the
vote on account while the second part of the first tranche  is  released  in
June after the regular budget is passed in  Parliament.  It  is,  therefore,
submitted that while there has been a delay in the release  of  funds,  that
has now been taken care at  least  for  the  financial  year  2015-16  (with
regard to the wage bill) and for the month of  April  (both  wage  bill  and
material component) in the financial year 2016-17.
20.     With  regard  to  implementing  and  extending  the  Scheme  for  an
additional 50 days in drought affected States (over and above the  guarantee
of 100 days) we are informed by the Joint  Secretary  that  in  the  drought
affected States, employment is guaranteed for 150 days in a year  and  funds
will be made available to every household whose adult members  volunteer  to
do unskilled manual work under the Scheme. The extension of the  Scheme  for
a period of 50 days over and above 100 days is therefore now not an issue.
Discussion and conclusions
21.    A review of the NREG Act indicates that under  Section  3(3)  thereof
after the work is done, the disbursement of  wages  shall  be  on  a  weekly
basis and in any event within a fortnight after the date on which  the  work
is done. However, if no work is provided to an  applicant  within  15  days,
then as per Section 7 of the NREG Act the applicant  shall  be  entitled  to
receive an unemployment allowance. Consequently, the NREG Act  provides  for
a guarantee of employment, payment for the work within a  week  and  in  any
event within a fortnight, and if employment is not provided then  a  payment
of unemployment allowance. What if the payment of wages is  delayed  in  the
first instance?
22.    The Guidelines on Compensation for delayed  wage  payment  circulated
by a letter dated 12th June, 2014  by  the  Ministry  of  Rural  Development
draws attention to paragraph 29  of  Schedule  II  of  the  NREG  Act  which
provides that the workers are entitled to receive ‘delay compensation’ at  a
rate of 0.05% of the unpaid wages per day for  the  duration  of  the  delay
beyond the sixteenth day of the closure of the Muster Roll.  Guideline  No.2
in this regard reads as follows:-
    “2. Compensation due to delay in payment of wages

Para 29, Schedule II of MGNREGA 2005 has laid down a detailed procedure  for
establishing a  delay  compensation  system.   As  per  the  system  MGNREGA
workers are entitled to receive delay compensation at a  rate  of  0.05%  of
the unpaid wages per day for the duration of the delay beyond the  sixteenth
day of the closure of the MR.”

The relevant part of paragraph 29 of Schedule II of the NREG  Act  reads  as
29. Wage payment (1) In case  the  payment  of  wages  is  not  made  within
fifteen days from the date of closure of the muster roll, the  wage  seekers
shall be entitled to receive payment of compensation for the delay,  at  the
rate of 0.05% of the unpaid wages per day of delay beyond the sixteenth  day
of closure of muster roll.
(a)  Any delay in payment of compensation beyond a period  of  fifteen  days
from the date it becomes payable, shall be considered in the same manner  as
the delay in payment of wages.
(b) to (f)  xxxx
(2) Effective  implementation  of  sub-paragraph  (1)  shall  be  considered
necessary for the purposes of the section 27 of the Act.

23.    The meat of the matter lies in three issues: (i) Informal capping  of
funds through the Labour Budget and the ‘agreed  to’  budget  process;  (ii)
Delayed release  of  payments  both  for  wages  and  materials;  and  (iii)
Ineffective monitoring of the Scheme.
24.    As far as the informal cap on funds is concerned, no doubt a  process
has to be followed by the Government of India for the release of funds.  The
issue really is one of accepting a budget presentation as it is made by  the
State  Government.  The  Government  of  India  believes  that  the   budget
presentation cannot be accepted as it is and the  Empowered  Committee  must
consider the totality of facts and take a final decision.
25.    It seems to us that a comparative table on the annual demand made  by
the States and the  final  decision  of  the  Empowered  Committee  must  be
available, but  the  relevant  figures  have  not  been  placed  before  us.
However, during the course of hearing, it was  the  admitted  position  that
there is a reduction from the demand made to the actual  approval  and  that
is based, inter  alia,  on  the  performance  of  the  State  Government  in
implementing the Scheme. This is also apparent from a reading  of  paragraph
7.1.1  of  the  Master  Circular  (FY  2016-2017)  Guidance  for   Programme
Implementation  issued  by  the  Ministry  of  Rural  Development   of   the
Government of India.[15]
26.    There is, therefore, a chicken and egg situation  –  the  release  of
funds by the Government of India is  low  because  the  performance  of  the
State Government is poor and the performance  of  the  State  Government  is
poor because the release of funds by the Government of  India  is  low.  The
suffering is of the unemployed unskilled manual labourer  as  an  individual
and the society as a whole.
27.    Regarding  the  informal  cap  on  funds,  learned  counsel  for  the
petitioner sought  to  substantiate  his  contention  by  referring  to  the
Minutes of the meeting of the Empowered Committee held on 21st  March,  2016
for the State of Madhya Pradesh for FY 2016-17. Paragraph 4 of  the  Minutes
is illustrative of the view of the Government of  India  and  this  records:
“Under no circumstances, the State will cross  the  approved  Labour  Budget
for 2016-17 without the prior approval of the Ministry.”
28.    It seems to us that the petitioner is perhaps reading too  much  into
these Minutes. The reason we  say  so  is  because  the  learned  Additional
Solicitor General has drawn out attention to a subsequent letter dated  11th
April, 2016 sent by the Secretary in the Ministry of  Rural  Development  to
the Chief Secretary of about 10 States (including  Madhya  Pradesh)  wherein
it is categorically stated that: “the agreed to Labour  Budget  for  2016-17
does not imply that work cannot be provided  beyond  the  Labour  Budget  if
there is a genuine demand for work.” Also, in the fourth affidavit filed  by
the Union of India it is stated as follows:

“8. That there has been no restriction on registration of  demand  for  work
and states have been allowed to go beyond  estimated  labour  budget  in  FY
2015-16.  The labour budget is just a rough estimation of the demand and  is
one of the tools for financial management.

9. That 13 States i.e. West Bengal, Uttarakhand,  Odisha,  Meghalaya,  Uttar
Pradesh, Assam, Rajasthan, Nagaland, Kerala,  Sikkim,  Gujarat,  Punjab  and
Tripura have generated persondays beyond the estimated  labour  budgets  for
FY 2015-16.  These states  include  three  drought  affected  states  namely
Odisha, Uttar Pradesh and Rajasthan.”

29.    Keeping the above in mind and the submissions made, it appears to  us
that there is no informal capping of funds although it does appear that  the
Government of India is not prone to easily release funds  for  the  projects
under the Scheme. This really takes  us  to  the  second  issue  namely  the
delayed release of payments both for wages and materials.
30.    According to the  petitioner  delayed  release  of  payments  has  an
adverse impact in the sense that it acts  as  a  disincentive  to  a  person
taking on any work under the Scheme. If a person does some  work  under  the
Scheme and is not sure when he or she is likely to get  the  payment,  there
will definitely be some reluctance to seek employment under the Scheme.
31.    With reference to FY 2016-17 the Union of India states in the  fourth
affidavit filed on or about 11th April, 2016 that  an  amount  of  Rs.11,030
crore will be released to the States within  one  week  subject  to  certain
conditions and the release will take care of the pending wage  liability  of
Rs.7,983 crore (as on 31st March, 2016) pertaining to FY 2015-16.   This  is
a clear admission on the part of  Government  of  India  that  huge  amounts
remain unpaid towards wages The  unfortunate  part  is  that  an  amount  of
Rs.2,723 crore from this is with  respect  to  10  drought  affected  States
where the unemployed perhaps need their wages the most.
32.    In Sanjit  Roy  v.  State  of  Rajasthan[16]  this  Court  held  that
providing labour for less than the minimum wage  amounts  to  forced  labour
and as such violates of Article 23 of  the  Constitution.  It  was  said  by
Justice Bhagwati as follows:

“…where a person provides labour or  service  to  another  for  remuneration
which is less than the minimum wage, the labour or service provided  by  him
clearly falls within the meaning of the words “forced labour”  and  attracts
the condemnation of Article 23. Every person who provides labour or  service
to another is entitled at the least to the  minimum  wage  and  if  anything
less than the minimum wage is paid to him, he can complain of  violation  of
his fundamental right under Article 23 and ask the court to  direct  payment
of the minimum wage to him so that the breach of Article 23 may be abated.”

What we are concerned with in the present case is not strictly payment  less
than the minimum wage but delayed  payment  to  crores  of  people.  We  can
understand delayed payment of a few days or weeks to a few  people,  but  in
this case it is delayed payment of a few weeks (if not  more)  to  lakhs  of
people. Given the enormous  number  of  persons  involved,  this  is  really
33.    In Sanjit Roy, a strange submission was made by  the  State.  It  was
submitted that it would not be possible to pay the minimum wage  to  persons
undertaking famine relief work  and  to  persons  affected  by  drought  and
scarcity conditions since  that  would  cripple  the  potential  to  provide
employment to the  affected  persons.  Rejecting  this  contention,  Justice
Bhagwati held:
“…when the State undertakes famine relief work  with  a  view  to  providing
help to the persons affected by drought and scarcity  conditions,  it  would
be difficult for the State to comply with the labour laws,  because  if  the
State were required to observe the labour laws, the potential of  the  State
to provide employment to the affected persons  would  be  crippled  and  the
State would not be able to render help to the  maximum  number  of  affected
persons and it was for this reason that the  applicability  of  the  Minimum
Wages Act, 1948 was excluded in  relation  to  workmen  employed  in  famine
relief work. This contention,  plausible  though  it  may  seem  is,  in  my
opinion, unsustainable and cannot be accepted.  When  the  State  undertakes
famine relief work it is no doubt true that it does so in order  to  provide
relief  to  persons  affected  by  drought  and  scarcity  conditions   but,
nonetheless,  it  is  work  which  enures  for  the  benefit  of  the  State
representing the society and  if  labour  or  service  is  provided  by  the
affected persons for carrying out such work, there  is  no  reason  why  the
State should pay anything  less  than  the  minimum  wage  to  the  affected
persons. ……Whenever any labour or service is taken by  the  State  from  any
person, whether he be affected by drought and scarcity  conditions  or  not,
the State must pay, at the least, minimum wage to such  person  on  pain  of
violation of Article 23….”

34.    Justice Pathak concurred  with  the  view  of  Justice  Bhagwati  but
preferred  to  rest  his  decision  on  a  breach  of  Article  14  of   the
Constitution and not Article 23 thereof. Justice Pathak held:
“The circumstance that employment has been  given  to  persons  affected  by
drought and scarcity conditions provides only the reason for extending  such
employment. In other words, the granting of relief to  persons  in  distress
by giving them employment constitutes merely  the  motive  for  giving  them
work. It cannot affect their right to what is due to  every  worker  in  the
course of such employment. The rights of all the workers will be  the  same,
whether they are drawn  from  an  area  affected  by  drought  and  scarcity
conditions or come from elsewhere.  The  mere  circumstance  that  a  worker
belongs to an area effected by drought and scarcity  conditions  can  in  no
way influence the scope and sum  of  those  rights.  In  comparison  with  a
worker belonging to some other more fortunate area and doing the  same  kind
of work, is he less entitled  than  the  other  to  the  totality  of  those
rights? Because he belongs to a  distressed  area,  is  he  liable,  in  the
computation of his wages, to be distinguished from the other  by  the  badge
of his misfortune? The  prescription  of  equality  in  Article  14  of  the
Constitution gives one answer only, and that is a categorical negative.”

35.    It is quite clear,  therefore,  that  when  the  rights  of  tens  of
thousands of people are affected by  delayed  payment  of  their  legitimate
dues, there is a clear constitutional breach committed by the State – be  it
the Government of India or a State Government.
36.    As mentioned above, a worker is entitled to compensation @ 0.05%  per
day for delayed payment of the wages due. We are quite pained to  note  that
the Government of India has made no provision for  this  compensation  while
releasing the wages for 2015-16 of  Rs.  7,983  crores.  This  is  extremely
unfortunate and certainly does not behove a welfare State in any  situation,
more so in a drought situation. Social justice has been thrown  out  of  the
window by the Government of India.
37.       To make matters worse, the Union of  India  has  admitted  in  the
fourth affidavit that the material component  of  FY  2015-16  (as  on  31st
March, 2016) is Rs. 4,359 crore for the entire country  which  includes  the
material liability of Rs. 1,995 crore in the  10  drought  affected  States.
This amount, according to Government of  India  will  be  released  in  June
2016. Why should there be a delay in this?
38.    We are unable to appreciate the unconscionable delay on the  part  of
the Government of India  in  the  release  of  funds  both  under  the  wage
component as well as under the material component.  It is quite  clear,  and
there  is  no  worthwhile  justification  forthcoming   from   the   learned
Additional Solicitor General, that delay in  payment  of  wages  acts  as  a
disincentive to those persons who are intending to take the benefit  of  the
Scheme. We have not been given  any  explanation  whatsoever  why  a  person
would want to work without wages or at least work  with  an  uncertainty  in
timely receipt of wages. It just does not stand to reason.
39.    The Union of India has also stated in the fourth  affidavit  that  an
amount of Rs. 3,047 crore will be released to the  States  for  implementing
the Scheme in April 2016 and that this amount would  be  inclusive  of  both
the wage and material components.
40.    In terms of the Master Circular (2016-17) the first  tranche  of  the
“agreed to” Labour Budget is required to be released in April 2016 (for  the
period ending in September). In terms  of  paragraph  7.1.2  of  the  Master
Circular the release would be  made  after  adjusting  for  unspent  balance
available with the Districts/States and considering the pending  liabilities
if any.[17]   As  is  apparent  from  the  fourth  affidavit  filed  by  the
Government of India the possibility of any unspent balance perhaps does  not
exist but what does  exist  is  the  pending  liabilities.   Therefore,  the
amount that is released in the first tranche would  actually  be  much  less
than the required amount for the first six  months  of  the  financial  year
since the pending liabilities themselves are more  than  Rs.  12,000  crore.
Clearly the implementation of the Scheme in the  first  six  months  of  the
financial year 2016-17 would begin with a  deficit  and  the  actual  amount
required for the first six months of the financial year  (even  as  per  the
“agreed to” Labour Budget) would not be fulfilled.  In our opinion, this  is
hardly any encouragement  to  persons  willing  to  take  advantage  of  the
41.    The fourth affidavit goes on to say that the first  tranche  will  be
released in two installments –  the  first  installment  being  released  in
April 2016 which would apparently take care of  the  implementation  of  the
Scheme for the month of April and the second tranche would  be  released  in
June 2016 after the regular budget is  passed  in  Parliament.   The  reason
given in the fourth affidavit for the release of the first  tranche  in  two
installments is because of the vote on account.  It is a  matter  of  common
knowledge that the annual budget is presented every year on the last day  of
February and it  naturally  takes  time  for  the  budget  proposals  to  be
accepted by Parliament and hence the need for a vote on account. That  being
so it is rather odd that the Master Circular proceeds on the basis that  the
entire quantum of the first  tranche  will  be  released  in  April  2016  –
something that is apparently not possible. There is no mention of  any  vote
on account in the Master Circular and to this extent  an  incorrect  picture
of the release of funds is held out.  All that we can say is  that  this  is
an unfortunate way of implementing a social welfare Scheme intended for  the
benefit of unemployed persons.
42.    We are informed by the Joint Secretary that  the  Labour  Budget  for
2016-17 is calculated on 314 crore person  days  of  employment.   This  has
been scaled down by the Empowered  Committee  and  the  “agreed  to”  Labour
Budge for 2016-17 is calculated on 217  crore  person  days  of  employment.
Therefore, (roughly) only 70% of  the  Labour  Budget  is  accepted  by  the
Empowered Committee based on the past performance of the  States.   On  this
basis, (roughly) about Rs.  20,000  crores  ought  to  be  released  by  the
Government of India in the first tranche  towards  financial  implementation
of the Scheme. The amount actually released is only  Rs.  3047  crores.  The
implicit assurance is that the balance amount of  about  Rs.  17,000  crores
will be made over the States in June, 2016 in the second installment of  the
first tranche after the annual budget is  approved  by  Parliament.  We  can
only wait and hope.
43.    As far as the third issue of monitoring the Scheme is  concerned  the
NREG Act makes adequate provision in this regard. Section  10  of  the  NREG
Act provides for constituting a Central Employment  Guarantee  Council  (for
short ‘the CEGC’).[18]  As per Section 11 of the NREG Act, the functions  of
the CEGC include, amongst others,  establishing  a  central  evaluation  and
monitoring  system;  advising  the  Central  Government   in   all   matters
concerning  the   implementation   of   the   NREG   Act;   monitoring   the
implementation of the NREG Act; and preparing  annual  reports  to  be  laid
before Parliament by the Central Government on  the  implementation  of  the
Act. It is not clear to us whether the CEGC is in existence and whether  any
monitoring mechanism is in place.    A visit to the official website of  the
NREG Act[19] indicates that as of now there is no CEGC in place.
44.    Similarly, the State Government is required  to  constitute  a  State
Employment Guarantee Council under Section 12 of the  Act.[20]   The  duties
and functions of the State Council include advising the State Government  on
all matters concerning the Scheme  and  its  implementation  in  the  State,
monitoring the implementation of  the  NREG  Act  and  preparing  an  annual
report to be laid before the State  Legislature  by  the  State  Government.
Again we have not been informed of the existence of any such  State  Council
or whether the  NREG  Act  is  being  faithfully  implemented  both  by  the
Government of India and by the State Government.
45.    At this stage, we  may  mention  that  the  Joint  Secretary  in  the
Ministry of Rural Development informed us that the Government of  India  has
introduced a potentially exciting Scheme for prompt payment of wages to  the
persons availing the benefit of the Scheme. A  system  called  the  National
Electronic Fund Transfer System or Ne-FMS system is  in  place  in  about  a
dozen States.  The objective of this system  is  to  ensure  that  the  wage
component under the Scheme is  released  directly  to  the  account  of  the
person concerned based on a Funds Transfer Order  to  be  generated  by  the
implementing agencies of the States. The benefit of the system is  that  the
person will be assured of timely  payment  of  wages  after  the  pay  order
generation. We have been informed that the Ne-FMS  system  is  in  place  in
several States with effect from 12th  April,  2016.  Although  it  is  early
days, we are told by the  learned  Additional  Solicitor  General  that  the
system is working quite satisfactorily, although this  is  disputed  by  the
petitioner who says that the system was first introduced in Kerala from  1st
January, 2016 but even then there are huge delays in making the  payment  of

46.    On the basis of the provisions of  the  NREG  Act  and  the  material
placed before us, it  is  appropriate  that  the  following  directions  are

The State Governments ought to present a realistic budget which should  then
be pragmatically considered by the Empowered Committee. This procedure  will
avoid any unnecessary controversy between  the  State  Governments  and  the
Government of India about the release of funds under the Scheme.

The Government of India is directed to  release  to  the  State  Governments
adequate funds under the Scheme in a timely manner so that  the  ‘workforce’
is paid its wages well in time. It is  regrettable  that  the  pending  wage
bill for 2015-16 was cleared only during the pendency of this petition.  The
Government of India must shape up in this regard.

The Government of India is directed to ensure that compensation for  delayed
payment is made over to the workers whose wages have been delayed beyond  15
days as postulated by paragraph 29 of Schedule II of the NREG  Act  and  the
Guidelines for Compensation formulated pursuant thereto.
Both the State Governments and the Government of India are directed to  make
all efforts to encourage needy persons to come forward  and  take  advantage
of the Scheme. A success rate below 50% is nothing to be proud of.
The Government of India is directed to ensure that  the  Central  Employment
Guarantee Council is immediately constituted under Section 10  of  the  NREG
Act.  In any event, the  Central  Employment  Guarantee  Council  should  be
constituted within a maximum of 60 days from today.
The Government of  India  is  directed  to  proactively  request  the  State
Governments to  establish  the  State  Employment  Guarantee  Council  under
Section 12 of the Act within a period of 45 days from today.  The  effective
implementation of the NREG Act will certainly not be possible  unless  these
monitoring and reviewing authorities faithfully and urgently established  by
the Government of India and the State Governments.

Since the NREG Act is a social welfare and social  justice  legislation  the
Government  of  India  must  ensure  that  its  provisions  are   faithfully
implemented by all concerned.

                                                            (Madan B. Lokur)

New Delhi                                            ……………....………J
May   13,    2016                                                      (N.V.
                        IN THE SUPREME COURT OF INDIA
                         CIVIL ORIGINAL JURISDICTION
                    WRIT PETITION (CIVIL) NO. 857 OF 2015

Swaraj Abhiyan – (IV)                                   .…Petitioner
Union              of               India               &               Ors.

                               J U D G M E N T
Madan B. Lokur, J.
1.     In three earlier  decisions  concerning  the  prevailing  drought  or
drought-like situation, we had stressed the obligation of the Government  of
India complying with all the provisions of the laws enacted  by  Parliament,
namely, the Disaster Management Act, 2005, the National Food  Security  Act,
2013 and the Mahatma Gandhi National Rural Employment Guarantee  Act,  2005.
This will, of necessity, require establishing and  constituting  bodies  and
authorities provided for by law and making available the necessary  finances
for implementing and abiding by the law. The State cannot  say  that  it  is
not bound to follow the  law  and  cannot  adhere  to  statutory  provisions
enacted by Parliament and create a smokescreen of  a  lack  of  finances  or
some other cover-up. The rule of law binds everyone, including the State.
2.      In  this  decision,  we  concern  ourselves   with   the   remaining
substantive issues raised by the petitioner Swaraj Abhiyan.
Relief for Crop Loss
3.     The grievance of Swaraj Abhiyan is that the ‘Crop Input  Advance’  or
the ‘Agricultural Input Subsidy’ offered by the Government of India  is  far
too low and in the event of a drought, the monetary relief (compensation  or
ex gratia) received by a farmer does not even cover the cost of  cultivation
of crops.  Reference is made to the cost of cultivation  of  some  principal
crops in India relating to 2015-16 (average  2010-11  to  2012-13)  obtained
from the Comprehensive Scheme  for  Studying  the  Cost  of  Cultivation  of
Principal Crops in India by the Directorate of Economics and  Statistics  in
the Ministry of Agriculture. By way of illustration,  it  has  been  pointed
out that in respect of some  Kharif  crops  such  as  paddy,  the  cost  per
hectare is Rs. 42,441; for maize it is Rs. 31,492 per hectare; for jowar  it
is Rs. 27,292 per hectare; for bajra it is Rs. 19,558 per hectare.
4.     According to the petitioner, in terms  of  the  norms  of  assistance
from the States Disaster Response Fund  (SDRF)  and  the  National  Disaster
Response Fund (NDRF) the input subsidy where the crop loss is 33% and  above
for agriculture crops, horticulture crops and  annual  plantation  crops  is
Rs. 6,800/- per hectare in rainfed  areas  and  restricted  to  sown  areas;
Rs.13,500/- per hectare in  assured  irrigated  areas,  subject  to  minimum
assistance not less than Rs. 1,000 and restricted to sown  areas.  Reference
in this regard is made to a letter dated  8th  April,  2015  issued  by  the
Ministry of Home Affairs (Disaster Management Division). This is said to  be
clearly insufficient.
5.     On these broad facts, the first prayer  made  by  the  petitioner  is
that the relief or subsidy is extremely low and only where the crop loss  is
33% and above.  The amount should be realistic and there is  no  reason  why
an arbitrary figure of 33% of crop loss should be fixed.   It  is  submitted
that the subsidy is a safety net  for  farmers  in  times  of  distress  and
therefore the compensation should be far more realistic in the  event  of  a
failed crop.
6.     The second prayer is connected with the first prayer and  is  to  the
effect that farmers should be given immediate relief for crop loss  for  the
year 2015-16. The relief or subsidy should not be only adequate  but  should
also be given timely with the  entire  process  being  transparent  so  that
there is no allegation of corruption.
7.     In response, the Union of India submits that under Section 46 of  the
Disaster Management Act, 2005, the  Central  Government  has  constituted  a
National Disaster Response Fund (NDRF) for meeting any threatening  disaster
situation or disaster.  This is exclusively for the purposes of  alleviating
the adverse impact of a  disaster.   Similarly,  under  Section  48  of  the
Disaster Management Act, the  State  Governments  have  constituted  a  fund
called the State Disaster Response Fund (SDRF).
8.     The 14th Finance Commission has  recommended  an  allocation  of  Rs.
61,219 crores as the aggregate corpus for the SDRF for the  period  2015-20.
The norms for providing  financial  assistance  have  been  revised  on  8th
April, 2015 (as mentioned above) and the  Agricultural  Input  Subsidy  that
was earlier Rs. 4,500 per hectare with the crop loss  being  50%  and  above
has since been revised upward by an order  dated  8th  April,  2015  to  Rs.
6,800 per hectare where a crop loss is 33% and above in respect  of  rainfed
areas.   Similarly,  there  has  been  an  upward  revision  in  respect  of
irrigated areas  and  perennial  areas.   It  is  therefore  submitted  that
adequate provision has been made in this regard and the  State  Governments,
even in the drought affected States,  are  entitled  to  utilize  the  funds
available in terms of the norms laid down.
9.     It is further submitted that in addition to  the  amount  recommended
by the 14th Finance Commission towards the SDRF,  the  Government  of  India
has also approved a sum of about Rs. 12,774 crores  from  the  NDRF  to  the
State Governments in the grip of drought.  This amount is also  considerably
enhanced from the amount made available in previous years.
10.    It is further  submitted  that  the  norms  are  not  a  compensatory
measure but are a  measure  of  immediate  relief.   Therefore,  to  require
payment of the exact amount of subsidy as determined by the  Directorate  of
Economics and Statistics  in  the  Ministry  of  Agriculture  would  not  be
11.    With regard to the funds in the NDRF, it is submitted that the  basis
of the fund is the estimated tax revenue collection in the form of  National
Calamity Contingency Duty imposed on Union Excise and Customs  and  releases
are made to the  State  Governments  by  the  Ministry  of  Finance  of  the
Government of India from this provision.
Fodder Banks
12.    The grievance of the petitioner in this regard is that even though  a
Fodder Bank has been established under the Centrally  Sponsored  Fodder  and
Feed Development Scheme and the National  Mission  for  Protein  Supplements
for the areas notified as drought affected in 2012, the benefits under  this
Scheme and Mission have not been extended to all drought affected  areas  in
the country for the year 2015-16 and 2016-17. It is prayed that  the  Scheme
and Mission be extended to all drought affected areas and  there  should  be
no financial cap on support for this component.   It  is  further  submitted
that in anticipation of drought the Union of India  had  issued  a  detailed
Advisory on 12th September, 2012 and that should be  implemented  in  letter
and spirit.
13.    The purpose of  the  Fodder  Bank  is  to  meet  the  requirement  of
livestock in areas notified as drought affected.  Fodder Banks are  expected
to facilitate procurement and storage of fodder from surplus areas or  areas
where rainfall is satisfactory and this fodder can be  than  distributed  to
cattle camps and deficient areas.  To reduce the cost of establishment of  a
Fodder Bank, it appears to have been recommended that low  capacity  tractor
mountable fodder block machine should be used as far as feasible.
14.    The prayer of the petitioner in this respect  is  for  the  effective
management of the Fodder Banks in the drought affected  areas  and  for  the
establishment of Fodder Banks where no such bank has been established  in  a
drought affected area.
15.    The response of the Union of India is  that  apart  from  the  above-
mentioned Scheme and Mission, the Department of Animal  Husbandry,  Dairying
and Fisheries is implementing the National Live Stock  Mission  and  one  of
the sub-missions of this Mission is feed and fodder development.  The  State
Governments can avail financial assistance under the sub-mission.
16     In addition,  the  Central  Government  has  approved  an  Additional
Fodder Development Programme as a special scheme  of  the  Rashtriya  Krishi
Vikas Yojna for the year 2015-16 to mitigate the adverse impact  of  drought
in drought affected  districts/blocks  of  the  country.   Funds  have  been
allocated for this purpose to various States as per the cost norms.
Crop Loan Re-structuring and Relief
17.    In this regard, the submission of the petitioner  is  that  deferment
of arrears and re-structuring of loans is an important aspect of relief  for
the drought affected farmers and necessary directions  should  be  given  to
Rural  and  Cooperative  Non-Scheduled  Banks,  Scheduled  Banks   including
Nationalized Banks etc. to abide by the guidelines  issued  by  the  Reserve
Bank of  India.   The  State  Level  Bankers  Committees  have  considerable
discretion in the matter of  deferment  of  arrears  and  re-structuring  of
loans with the result that re-structuring has not taken  place  as  per  the
guidelines in several States.  The prayer of the petitioner therefore is  to
have a more realistic deferment of arrears and re-structuring  of  loans  by
all the concerned banks, particularly  in  respect  of  farmers  in  drought
affected areas.
18     In response, it is stated by the Union  of  India  that  the  Reserve
Bank of India has issued a Master Circular on 1st July, 2015 (updated up  to
21st August, 2015) while NABARD has issued a circular on 26th  August,  2015
addressed to all Cooperative Banks and Regional Rural Banks  recommending  a
moratorium of one year in re-structuring the loans of borrowers affected  by
a natural calamity.  However, over-due loans are  not  included  since  they
are not attributed to a natural calamity.  Notwithstanding  this,  there  is
no prohibition on any bank from re-structuring any loan including any  over-
due loan subject to the guidelines of the  Reserve  Bank  of  India  and  in
accordance with their internal policy guidelines.
Discussion and conclusions
19.    It is quite apparent  from  the  submissions  made  and  the  reliefs
claimed that essentially the concerns  raised  pertain  to  policy,  whether
economic and fiscal policy or policy impacting on drought effected  persons.
We are  certainly  not  equipped  to  commend  the  view  expressed  by  the
petitioner or the view expressed by the State on issues of this nature.   It
is really for experts in the field to take a  call,  for  example,  on  what
percentage of crop loss deserves to be  addressed,  whether  the  crop  loss
should be 33% and above or 50% and above.  The quantum  of  monetary  relief
to be given to a farmer is again a matter of policy.
20.     Similarly,   issues   regarding   establishing   fodder   banks   or
restructuring bank loans,  the  extent  to  which  restructuring  should  be
carried out are all issues that are  required  to  be  decided  by  experts.
Even then,  within  the  community  of  experts,  there  are  likely  to  be
differences of opinion.  While one set of experts might fix  crop  loss  for
relief at 50% another set of  experts  might  consider  the  crop  loss  for
relief above or below 50%.  This being the position,  there  cannot  be  any
judicially manageable standards for determining  issues  of  policy  and  it
would be hazardous if not dangerous for us to venture into such  areas  when
we lack the expertise to do so.
21.    This Court has, on several occasions, dealt  with  issues  of  policy
whether having an economic and fiscal flavour or  even  mundane  matters  of
policy including, for example, transfer  of  government  servants  from  one
place to another.  This Court has not interfered in such matters unless  the
policy is demonstrably perverse.
22.    Fairly recently, in Essar Steels Ltd.  v.  Union  of  India[21]  this
Court summed up the position in law as follows:

“Broadly, a policy decision is subject to judicial review on  the  following
(a) if it is unconstitutional;
(b) if it is de’hors the provisions of the Act and the Regulations;
(c) if the delegatee has acted beyond its power of delegation;
(d) if the executive policy  is  contrary  to  the  statutory  or  a  larger

23.    There are  several  decisions  to  the  same  effect  including,  for
example, another recent decision of this Court Centre  for  Public  Interest
Litigation v. Union of India[22] and some earlier  decisions  such  as  M.P.
Oil Extraction v. State of Madhya Pradesh[23], Villianur Iyarkkai  Padukappu
Maiyam v. Union of India[24] and of course the Constitution  Bench  decision
in Peerless General Finance and  Investment  Co.  Ltd. v.  Reserve  Bank  of
India[25]. For the present purposes, the summation provided in Essar  Steels
is quite clear:

“Executive policies are usually  enacted  after  much  deliberation  by  the
Government. Therefore, it  would  not  be  appropriate  for  this  Court  to
question the wisdom of the same, unless it is demonstrated by the  aggrieved
persons that the said policy has been enacted in an arbitrary,  unreasonable
or mala fide manner, or that it offends the provisions of  the  Constitution
of India.”

24.    Therefore, the issues raised by the  petitioner  should  actually  be
looked at from  the  point  of  view  of  implementation  of  a  policy  and
monitoring  its  implementation.  In  our  opinion,  in   the   process   of
implementation and monitoring, what is important is for the Union  of  India
and the State Governments to set up watch-dog  committees  or  ombudsmen  to
see that the polices framed are faithfully  implemented.   There  is  little
utility in knee-jerk reactions and stumbling along  from  one  situation  to
25.    Ad hoc measures really do not serve any purpose  and  eventually  the
consequence of an ad hoc reaction tends  to  travel  to  this  Court  for  a
response. The one possible solution appears to be for  the  Union  of  India
and the States to set up their respective  watch-dog  committees  that  will
specialize in certain disciplines for the  purposes  of  implementation  and
monitoring the schemes and policies framed by the Union  of  India  and  the
State Governments. A policy might be acceptable and worthy, but often it  is
the effective implementation and monitoring that is lacking.
26.    Under the circumstances, we are inclined to issue only one  direction
in respect of the three issues raised by the petitioner which is  to  direct
the concerned authorities in the Union of India, the State  Governments  and
the Reserve Bank of India and other banks  to  religiously  implement  their
policies since they are ultimately intended for the benefit  of  the  people
of our country and not for the benefit of any stranger.
Court Commissioners
27.    Learned counsel for the petitioner  insists  on  the  appointment  of
Court Commissioners to oversee the implementation of the various  directions
issued by us.  Reference is made by learned  counsel  to  what  is  commonly
called the Right to Food Campaign  which  resulted  in  the  appointment  of
Commissioners by this Court to report on the functioning and improvement  of
the public distribution system.  Some useful and valuable  suggestions  were
certainly given by the Court Commissioners and which were implemented  under
the directions of this Court.  Learned counsel for  the  petitioner  submits
that  it  is  necessary  for  us  to  direct  the   appointment   of   Court
Commissioners  so  that  the  provisions  of  the  various  statutes   under
consideration are faithfully implemented and the various schemes  framed  by
the Government of India and the State Governments are implemented  in  their
true spirit.
28.    Learned Additional Solicitor General vehemently opposes this plea  on
the ground that the appointment would serve no useful purpose.   He  submits
that it is not as if the officers in the Government of India are  not  doing
their work.  While there may be some laxity or  slackness  on  occasion  but
that cannot be generalized  to  necessitate  some  external  authorities  to
monitor the functions of the officers of the State.  He submits  that  there
are internal checks within the administration which ensure  that  governance
is carried out for the welfare of  the  people  and  in  a  transparent  and
accountable manner.
29.    We have given our consideration to the submissions  made  by  learned
counsel for the petitioner and the learned Additional Solicitor General  and
find that the  system  of  in-house  checks  has  already  been  statutorily
recognized for all the issues that we have dealt with  in  this  case.   For
example, the Disaster  Management  Act,  2005  constitutes  authorities  and
bodies  like  the  National  Disaster  Management  Authority,  the  National
Executive Committee etc. to ensure that the Act  is  faithfully  implemented
and  measures  taken  are  reviewed  and  monitored  from  time   to   time.
Similarly, the National Food Security  Act,  2013  and  the  Mahatma  Gandhi
National Rural Employment Guarantee Act, 2005 also mandate the  constitution
and establishment of bodies and authorities under the statute to review  and
monitor the implementation of  the  statute  and  the  schemes  or  programs
30.    It is  another  matter  altogether  that  some  provisions  of  these
statues have been converted into  a  dead  letter  and  various  authorities
under these statutes have not yet been constituted compelling us to  comment
on the failure of the Executive branch of the Government of  India  and  the
State Governments to faithfully implement the  law  enacted  by  Parliament.
We have also given directions in this  regard  and  we  certainly  expect  a
favourable response to the directions issued and their compliance.  For  the
present, therefore, we do not see the need for the appointment of any  Court

Continuing mandamus

31.    We are firmly of the view that the principle of  continuing  mandamus
is now an integral part of our constitutional jurisprudence. There  are  any
number of public interest petitions in which this  Court  has  continued  to
monitor  the  implementation  of  its  orders  and   on   occasion   monitor
investigations into alleged offences where  there  has  been  some  apparent
stonewalling by the Government of India.  A few years ago,  one  of  us  had
occasion to advert to the requirement of a continuing mandamus as a part  of
our jurisprudence.[26] It is not necessary to  repeat  the  views  expressed

32.    Under these circumstances, we agree  with  learned  counsel  for  the
petitioner that this petition ought not be disposed of but  should  be  kept
pending and the possibility of a continuing mandamus being issued  ought  to
be kept open to  ensure  that  the  directions  that  have  been  given  are
complied with by the Government of India as well as the State Governments.

33.    We adjourn this case to 1st August, 2016 at 2.00 p.m. and direct  the
Union of India to file a status report on or before 25th July, 2016  stating
the action taken by the Government of India on the various  directions  that
we have given in this case on different dates.

( Madan B. Lokur )

New  Delhi;                                  ……………………….J                 May
13, 2016                                       ( N.V. Ramana )

[1]  (1986) 2 SCC 68
[2]  (2000) 10 SCC 646
[3]  (2010) 3 SCC 402
[4]  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 level 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.
[5]  (1980) 4 SCC 162
[6]  (1981) 1 SCC 627
[7]  377 F Supp 995
[8]  404 F Supp 2d 571
[9]  (1996) 4 SCC 37
[10]    (1990) 1 SCC 520
[11]    4. Employment Guarantee Schemes  for  rural  areas  -  (1)  For  the
purposes of giving effect to  the  provisions  of  Section  3,  every  State
Government shall, within six months from the date of  commencement  of  this
Act, by notification, make  a  Scheme,  for  providing  not  less  than  one
hundred  days  of  guaranteed  employment  in  a  financial  year  to  every
household in the rural areas  covered  under  the  Scheme  and  whose  adult
members, by application, volunteer to do unskilled manual  work  subject  to
the conditions laid down by or under this Act and in the Scheme :
     Provided  that  until  any  such  Scheme  is  notified  by  the   State
Government, the Annual Action Plan or Perspective  Plan  for  the  Sampoorna
Grameen Rozgar Yojana  (SGRY)  or  the  National  Food  for  Work  Programme
(NFFWP) whichever is in force the concerned areas  immediately  before  such
notification shall be deemed to be the action plan for the  Scheme  for  the
purpose of this Act.
    (2) The State Government shall publish a summary of the Scheme  made  by
it in at least two local newspapers, one of which shall be in  a  vernacular
language circulating in the area or areas to which such Scheme shall apply.
    (3) The Scheme made under sub-section (1) shall provide for the  minimum
features specified in Schedule I.
[12]    3. Guarantee of  rural  employment  to  households  -  (1)  Save  as
otherwise provided, the State Government shall, in such rural  area  in  the
State as may be notified  by  the  Central  Government,  provided  to  every
household whose adult members volunteer to  do  unskilled  manual  work  not
less than one hundred days of such work in a financial  year  in  accordance
with the Scheme made under this Act.
    (2) Every person who has done the work given to  him  under  the  Scheme
shall be entitled to receive wages at the wage rate for each day of work.
    (3) Save as otherwise provided in this Act, the  disbursement  of  daily
wages shall be made on a weekly basis or  in  any  case  not  later  than  a
fortnight after the date on which such work was done.
    (4) The Central Government or  the  State  Government  may,  within  the
limits of  its  economic  capacity  and  development,  make  provisions  for
securing work to every adult member of a household under  a  Scheme  of  any
period beyond the  period  guaranteed  under  sub-section  (1),  as  may  be
    The MIS entry made in regard to the LB at GP level will  get  aggregated
at different levels.  The aggregated LB at District  level  is  required  by
the Ministry by 31st December each year  in  format  as  per  Annexure  -10.
Therefore, it needs to be ensured  that  all  data  entry  work  for  LB  is
completed in all respect by 31st December for all GP’s  in  State.   The  LB
entered in the MIS (as given in para 6.6 above)  will  be  analysed  by  the
Ministry and put  up  to  the  Empowered  Committee  chaired  by  Secretary,
Ministry of Rural Development.  The Empowered  committee  will  discuss  the
projected LB with the Secretary of the Rural Development  of  the  concerned
State and a final LB for the State as  a  whole  will  be  agreed  to.   The
implication of this is that district/Block/GP wise LBs as  prepared  earlier
and submitted to the Ministry are  required  to  be  revised  by  the  State
Government and communicated to respective districts/blocks and GPs.  The  LB
agreed to, disaggregated district and month wise shall  be  entered  at  the
State/District level in the  MIS  appropriately.   States  are  required  to
complete this exercise within 15 days from the date the  decision  regarding
agreed to LB is conveyed to them.

[14]    14. District Programme Coordinator – (1) to (5) xxx
    (6) The District Programme Coordinator shall prepare  in  the  month  of
December every year a labour budget for the next financial  year  containing
the details of anticipated demand for unskilled manual work in the  district
and the plan for engagement of labourers in  the  works  covered  under  the
Scheme and submit it to the district panchayat.
[15]    7.1.1 Funds are released to the States/UTs normally in two  tranches
on the basis of agreed to Labour Budget (LB)  and  the  performance  of  the
States/UTs during the year till NEFS comes into effect.
[16]    (1983) 1 SCC 525
[17]    1st tranche is released to States/Districts in the month  of  April.
The quantum of 1st tranche is based on the number of person  days  projected
by the State/UT for the first six months of the year (up  to  September)  in
the Labour Budget. However, it would not exceed  50  percent  of  the  total
person days agreed to in the Labour Budget. The first  tranche  is  released
after adjusting unspent balance  available  with  the  districts/States  and
considering the pending liabilities, if any.
[18]    10. Central Employment Guarantee Council  -  (1)  With  effect  from
such date as the Central Government  may,  by  notification  specify,  there
shall  be  constituted  a  Council  to  be  called  the  Central  Employment
Guarantee Council to  discharge  the  functions,  and  perform  the  duties,
assigned to it by or under this Act.
    (2) The headquarters of the Central Council shall be at Delhi.
    (3) The Central Council shall consist of the following members to be
appointed by the Central Government, namely:—
    (a) a Chairperson;
    (b) not more than such number of representatives of the Central
Ministries including the Planning Commission not below the rank of Joint
Secretary to the Government of India as may be determined by the Central
    (c) not more than such number of representatives of the State
Governments as may be determined by the Central Government;
    (d) not more than fifteen non-official members representing Panchayati
Raj Institutions, organisations of workers and disadvantaged groups :
    Provided that such non-official members shall include  two  chairpersons
of District Panchayats nominated by the Central Government by  rotation  for
a period of one year at a time :
    Provided further that  not  less  than  one-third  of  the  non-official
members nominated under this clause shall be women :
    Provided also that not less than one-third of the  non-official  members
shall be belonging to the Scheduled Castes, the Scheduled Tribes, the  Other
Backward Classes and Minorities;
    (e) such  number  of  representatives  of  the  States  as  the  Central
Government may, by rules, determine in this behalf;
    (f) a Member-Secretary not below the rank  of  Joint  Secretary  to  the
Government of India.
    (4) The terms and conditions subject to which the Chairperson and  other
members of the Central Council may be appointed  and  the  time,  place  and
procedure of the meetings (including the quorum at  such  meetings)  of  the
Central  Council  shall  be  such  as  may  be  prescribed  by  the  Central
[19]    nrega.nic.in
[20]    12. State Employment Guarantee Council - (1)  For  the  purposes  of
regular monitoring and reviewing the  implementation  of  this  Act  at  the
State level, every State Government shall constitute a State Council  to  be
known as the ………. (name of the State)  State  Employment  Guarantee  Council
with a Chairperson and such number of official members as may be  determined
by the State Government and  not  more  than  fifteen  non-official  members
nominated  by  the  State  Government  from  Panchayati  Raj   institutions,
organisations of workers and disadvantaged groups :
    Provided that not  less  than  one-third  of  the  non-official  members
nominated under this clause shall be women :
    Provided further that  not  less  than  one-third  of  the  non-official
members shall be belonging to the Scheduled Castes,  the  Scheduled  Tribes,
the Other Backward Classes and Minorities.
    (2) The terms and  conditions  subject  to  which  the  Chairperson  and
members of the State Council may  be  appointed  and  the  time,  place  and
procedure of the meetings (including the quorum at  such  meetings)  of  the
State Council shall be such as may be prescribed by the State Government.
    (3) The duties and functions of the State Council shall include—
    (a) advising the State Government on all matters concerning  the  Scheme
and its implementation in the State;
    (b) determining the preferred works;
    (c) reviewing the monitoring and redressal mechanism from time  to  time
and recommending improvements;
    (d) promoting the widest possible  dissemination  of  information  about
this Act and the Schemes under it;
    (e) monitoring the implementation of this Act and  the  Schemes  in  the
State and coordinating such implementation with the Central Council;
    (f) preparing the annual report to be laid before the State  Legislature
by the State Government;
    (g) any other duty or function as may be assigned to it by  the  Central
Council or the State Government.
    (3) The State Council shall have the power to  undertake  an  evaluation
of the Schemes operating in the State and for that  purpose  to  collect  or
cause to be collected statistics pertaining to the  rural  economy  and  the
implementation of the Schemes and Programmes in the State.
[21]    2016 (4) SCALE 267 = MANU/SC/0431/2016
[22]    2016 (3) SCALE 712 = MANU/SC/0372/2016
[23]    (1997) 7 SCC 592
[24]    (2009) 7 SCC 561
[25]    (1992) 2 SCC 343
[26]    Manohar Lal Sharma v. Union of India, (2014) 2 SCC 532

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