DIPIKA JAGATRAM SAHANI versus UNION OF INDIA AND ORS. on 13 January 2021

[2021] 1 S.C.R. 209

DIPIKA JAGATRAM SAHANI

v.

UNION OF INDIA AND ORS.

(Writ Petition (Civil) No. 1039 of 2020)

JANUARY 13, 2021

[ASHOK BHUSHAN, R. SUBHASH REDDY ANDM. R. SHAH, JJ.]

Anganwadi Centres – Writ petition filed as a Public InterestLitigation questioning the closure of Anganwari centres across thecountry – Petitioner stated that through Anganwari Centressupplementary nutrition to pregnant women, lactating mothers,adolescent girls and children upto the age of six years were beingprovided and prayed for direction to Centre and States for reopeningall the Anganwadi Centres in the country and to provide Anganwariservices as were provided before the lockdown and in accordancewith ss.4 to 7 of National Food Security Act, 2013 – Held:Government has a constitutional obligation to preserve human life– The Centre as well as States are statutorily obliged to implementstatutory obligation as imposed under ss.4, 5 and 6 of the Act, 2013– After spread of COVID-19, Anganwadi Centres were closedthroughout the country in March, 2020 – The Ministry of Womenand Child Development, Government of India had issued guidancenote dated 11.11.2020 providing for resumption of AnganwariServices outside the containment zones – Therefore, in view of theguidelines, all States/Union Territories are directed to take decisionin respect of opening Anganwadi Centres situated outside thecontainment zones – The decision for not opening AnganwadiCentres in any State/Union Territories or any part of State/UnionTerritory shall be taken only after the State Disaster ManagementAuthority of the State direct for not opening of Anganwadi Centresin State/particular area of the State situated outside containmentzone – Anganwadi Centres situated in the containment zone shallnot be opened till the containment continues – All States/UnionTerritories shall ensure that nutritional standards as provided inSchedule II of National Food Security Act, 2013, is fulfilled byproviding nutritional support to pregnant women, lactating mothers,

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Anutritional support to children who suffer from malnutrition – Allthe States/Union Territories shall issue necessary orders regardingmonitoring and supervision of Anganwadi Centres to ensure thatthe benefit reaches to the beneficiaries and a Complaint RedressalMechanism be put in place in each district – Constitution of India –Art.47 – National Food Security Act, 2013 – ss.4 to 7.B

Allowing the writ petition, the Court

HELD: 1. It is now statutory obligation of the Centre andthe States to provide for nutritional support to the pregnant womenand lactating mothers,nutritional support to children and to takeCsteps to identify and provide meals for children who suffer frommalnutrition. International covenants also aim at highestattainable standards of physical and mental health. This is ininterest of social justice. Inadequate supply of nutritious food tothe citizens, more particularly to the children and the women shallaffect their health. Therefore, the same shall be in violation ofDtheir fundamental right to health/right to live with dignityguaranteed under Article 21 of the Constitution of India. TheCentre as well as States are statutorily obliged to implementstatutory obligation as imposed under Sections 4, 5 and 6 of theAct, 2013. The nutritional support is required to be of theEnutritional standards which have already been laid down toSchedule II of the Act, 2013 and all States/UTs are obliged toimplement such Scheme and have to comply with Schedule II.Provision of food grains as per the provisions of the Act, 2013 isa statutory obligation on the State. Article 47 of the Constitutionprovides that one of the primary duties of the State is to raise theFlevel of nutrition and the standard of living of the people. [Paras18, 19][220-E-H; 221-A-B]

2. It is the obligation of the State to ensure that pregnantwomen, lactating mothers and children in the age of 3 to 6years and children who suffer from malnutrition are providedGtheir dues. The State has to provide an appropriate mechanismfor supervision and check, child development officers and otherdistrict level officers who are entrusted to monitor the functioningof Anganwadi Centres have to be extra vigilant and take steps H

so that no beneficiary is denied its dues. All States/UnionTerritories should evolve an appropriate mechanism forsupervision so that dues are received by beneficiaries for whomschemes are in place. It is for the State to secure health to itscitizens as its primary duty. No doubt, the Government isrendering this obligation through various schemes, such as,opening of Aanganwadis, providing nutritious food throughAanganwadis, Mid-day Meal Scheme, etc., but in order to makeit meaningful, it has to be within the reach of its people, as far aspossible, and the Government must supply the nutritious food inthe real sense bearing in mind the provisions of National FoodSecurity Act. The Government of India by its guidance notepermitted all the States and Union Territories to open AnganwadiCentres, it is the obligation of the States/Union Territories totake decision for opening of Anganwadi Centres. Several States/Union Territories have already started running their AnganwadiCentres which is a positive step towards achievement of the goalfor which Anganwadi Centres were envisaged. Unless there areany specific reasons for not opening of Anganwadi Centres, allAnganwadi Centres beyond the containment zones should bemade functional by all the States/Union Territories at an earlydate. [Paras 33, 34][226-E-H; 227-A-B; 227-C]

CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.1039 of 2020.

(Under Article 32 of the Constitution of India)

Ms. Aishwarya Bhati, ASG, Mr. Nalin Kohli, AAG, Colin Gonsalves,Dr. Manish Singhvi, Sr. Advs., Sadiq Noor, Satya Mitra, V. G. Pragasam,S. Prabu Ramasubramanian, Ms. Ruchi Kohli, Ms. Archana PathakDave, Akshay Amritanshu, Ms. Chinmayee Chandra, B. K. Satija,Gurmeet Singh Makker, Avijit Mani Tripathi, Upendra Mishra, Ms.Deepanwita Priyanka, Ms. Vishakha, Ms. Garima Prashad, Abhinav S.Agarwal, Ms. Diksha Rai, Ms. Palak Mahajan, S. Udaya Kumar Sagar,Ms. Swati Bhardwaj, Ms. Uttara Babbar, Ms. Bhavana Duhoon, MananBansal, Sachin Patil, Rahul Chitnis, Aaditya A. Pande, Geo Joseph,Sandeep Kumar Jha, Abhimanyu Tewari, Ms. Eliza Bar, Ms. PriyankaPrakash, Ms. Beena Prakash, G. Prakash, Abhinav Mukerji, Ms. Bihu AB

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212SUPREME COURT REPORTS

ASharma, Ms. Pratishtha Vij, Siddhesh Kotwal, Ms. Ana Upadhyay,Nirnimesh Dube, Raghvendra Kumar, Anand Kumar Dubey, NarendraKumar, Abhimanyu Jhamba, Ashish Jhamb, Ms. R. A. Thonpinao Thangal,Samir Ali Khan, K. V. Jagdishvaran, Ms. G. Indira, Dr. Monika Gusain,Chirag M. Shroff, Ms. Abhilasha Bharti, V. N. Raghupathy, SuhaanMukerji, Vishal Prasad, Nikhil Parikshith, Abhishek Manchanda,BSayandeep Pahari, Shuvodeep Roy, Rahul Raj Mishra, M. Yogesh Kanna,Raja Rajeshwaran S., Aditya Chadha, Pukhrambam Ramesh Kumar,Ms. Astha Sharma, Ms. K. Enatoli Sema, M/s. PLR Chambers and Co.,Advs. for the appearing parties.

The Judgment of the Court was delivered byCASHOK BHUSHAN, J.

1. This writ petition has been filed as a Public InterestLitigation under Article 32 of the Constitution of India questioningthe closure of the Anganwadi Centres across the country. The petitionerDstates that through Anganwadi Centres supplementary nutrition topregnant women, lactating mothers, adolescent girls and children uptothe age of 6 years were being provided which fulfilled the State objectiveof holistic development of children under 6 years and to provide foodand nutrition to the beneficiaries. In the writ petition the petitionerimpleaded the Union of India, all States and Union Territories and hasEprayed for following reliefs:

a) For a writ of mandamus directing the Union ofIndia and allStates and Union Territories to forthwith reopen all theAnganwadi Centres in the country and provide Anganwadiservices as before the lockdown and in accordance withFSections 4 to 7 of the National Food Security Act, 2013.

b) For writ of mandamus directing the Union ofIndia and allStates and Union Territories to provide Hot Cooked Meals,Take Home Rations in consonance to the provisions of theNational Food Security Act, 2013 as well as TheGSupplementary Nutrition (under the Integrated ChildDevelopment Services Scheme)Rules, 2020 as well as makeprovisions for additional Supplementary Nutrition provisionsto all beneficiaries of the ICDS Scheme in the form of acomprehensive package of Cooked Food, Eggs, Fruits, dryrations including cereals, pulses, etc.H

c) For a writ of mandamus directing the Union ofIndia and allStates and Union Territories to conduct growth monitoringof children to document growth in the wake of the after effectsof the pandemic more particularly main nourishment amongchildren and anemia in girl children and initiate corrective stepsforthwith.

d) For an order in terms of recommendations 1-6 of the Right toFood Campaign in its representation dated 6.8.20 to the Unionof India at Annexure P-8 hereto and as set out in paragraphno.37 above.

e) For any other order deemed fit and proper under thecircumstances of the present case.”

2. The Constitution of India with the object of securing to allits citizens social and economic justice contains various Articles whichempower making of special law in favour of women and children. Article47 of the Constitution which forms the part of Directive Principlesof the State Policy provides that the State shall regard the raising of thelevel of nutrition and the standard of living of its people and theimprovement of public health as among its primary duties. TheGovernment of India with the above objective launched a welfarescheme, namely, Integrated Child Development Services Scheme in theyear 1975. The Scheme was designed as an early childhood developmentprogramme aimed to address health, nutrition and development needs ofyoung children who are future of India and pregnant and nursing mothers.The Scheme was designed to promote holistic development of childrenunder 6 years of age. This Court in a Public Interest Litigation in WritPetition No.196 of 2001, People’s Union for Civil Liberties vs.Union of India and others, had issued various directions for protectionof right to food of the poor and the underprivileged sections includingchildren and women. This Court has been pro-actively directing theCentral Government and the State Governments to effectivelyimplement the Integrated Child Development Services Scheme. Variousdirections were issued by this Court from time to time.

3. The Parliament enacted the National Food Security Act, 2013(hereinafter referred to as the “Act, 2013”) to provide for food andnutritional security in human life cycle approach, by ensuring access toadequate quantity of quality food at affordable prices to people to live a A

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Alife with dignity and for matters connected therewith. The Statement ofObjects and Reasons of the Act apart from containing various otherobjects, proposed to provide following also in paragraph 4(c), (d) and(e):

“4. In view of the preceding paragraphs, it is proposed to enactBa new legislation, namely, the National Food Security Bill,2011, to-

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(c) entitle every pregnant woman and lactating mother to meal,Cfree of charge, during pregnancy and six months after child birth,through the local anganwadi, so as to meet the nutritional standardsspecified in Schedule II; and to provide to such women maternitybenefit of rupees one thousand per month for a period of sixmonths in accordance with a scheme, including cost sharing,payable in such instalments as may be prescribed by the CentralDGovernment.

(d) entitle every child up to the age of fourteen years-(i) ageappropriate meal, free of charge, through the local anganwadi soas to meet the nutritional standards specified in Schedule IIin the case of children in the age group of six months to sixEyears; and (ii) one mid day meal, free of charge, everyday, excepton school holidays, in all schools run by local bodies,Government and Government aided schools, up to class VIII, soas to meet the nutritional standards specified in Schedule II in thecase of children in the age group of six to fourteen years;F(e) require the State Government to identify and provide meals F(e) require the State Government to identify and provide mealsthrough the local anganwadi, free of charge, to children whosuffer from malnutrition, so as to meet the nutritional standardsspecified in Schedule II; and implement schemes coveringentitlements of women and children in accordance with theguidelines, including cost sharing, between the Central GovernmentGand the State Governments in such manner as may be prescribedby the Central Government.

4. The Act, 2013 by Section 4 creates a statutory right of everypregnant woman and lactating mother free meals during pregnancy andsix months after the child birth. Section 5 provides for nutritional supportH

to children, in the case of children in the age group of six months to sixyears, age appropriate meal, free of charge, through the local Anganwadiso as to meet the nutritional standards. Similarly, Section 6 provides forand management of child malnutrition. Sections 4,5 and 6 are as follows:

“Section 4. Nutritional support to pregnant women andlactating mothers.-Subject to such schemes as may be framedby the Central Government, every pregnant woman and lactatingmother shall be entitled to—

(a) meal, free of charge, during pregnancy and six monthsafter the child birth, through the local anganwadi, so as tomeet the nutritional standards specified in Schedule II; and (b) maternity benefit of not less than rupees six thousand, insuch instalments as may be prescribed by the CentralGovernment:

Provided that all pregnant women and lactating mothers inregular employment with the Central Government or StateGovernments or Public Sector Undertakings or those who are inreceipt of similar benefits under any law for the time being inforce shall not be entitled to benefits specified in clause (b).

5. Nutritional support to children.- (1) Subject to theprovisions contained in clause (b), every child up to the age offourteen years shall have the following entitlements for hisnutritional needs, namely:—

(a) in the case of children in the age group of six months tosix years, age appropriate meal, free of charge, through thelocal anganwadi so as to meet the nutritional standardsspecified in Schedule II: Provided that for children belowthe age of six months, exclusive breast feeding shall bepromoted; (b) in the case of children, up to class VIII or within the agegroup of six to fourteen years, whichever is applicable, onemid-day meal, free of charge, everyday, except on schoolholidays, in all schools run by local bodies, Government andGovernment aided schools, so as to meet the nutritionalstandards specified in Schedule II.

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A(2) Every school, referred to in clause (b) of sub-section (1),and anganwadi shall have facilities for cooking meals, drinkingwater and sanitation:

Provided that in urban areas facilities of centralised kitchensfor cooking meals may be used, wherever required, as per theBguidelines issued by the Central Government.

6. Prevention and management of child malnutrition.-The State Government shall, through the local anganwadi,identify and provide meals, free of charge, to children who sufferfrom malnutrition, so as to meet the nutritional standards specifiedCin Schedule II.”

5. The Anganwadi Centres which were running in the countrysince 1975 under the Integrated Child Development Services Scheme,now have been given statutory recognition under the Act, 2013. Section2(1) defines Anganwadi in the following words:D“Section 2(1) “anganwadi” means a child care and developmentcentre set up under the Integrated Child Development ServicesScheme of the Central Government to render services coveredunder section 4, clause (a) of sub- section (1) of section 5 and 6.”

6. Anganwadi Centres which are manned by Anganwadi workers/Ehelpers are entrusted with implementation of a large number of welfareschemes initiated by the Central Government as well as by the StateGovernments. The beneficiaries who are registered with Anganwadiare also provided following:

a) providing supplementary nutrition;

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b) growth monitoring and counseling;

c) pre-school education;

d)immunization and

e) referral services.G

7. After spread of pandemic Corona virus (COVID-19),Anganwadi Centres were closed throughout the country in March, 2020.The distribution of special nutrition and other benefits to be provided forbeneficiaries being essential services were permitted to be conductedby Anganwadi staff by resorting to Take Home Ration.H

8. Under Section 7 of the Act, 2013 it is the obligation of theState Governments to implement schemes covering entitlements underSections 4,5 and 6 of the Act, 2013 in accordance with the guidelines,including cost sharing, between the Central Government and the StateGovernments in such manner as may be prescribed by the CentralGovernment. The Schedule II of the Act, 2013 provides for nutritionalstandards. Schedule II of the Act, 2013 is as follows:

“SCHEDULE II

[See sections 4(a), 5(1) and 6]

NUTRITIONAL STANDARDS

Nutritional standards: The nutritional standards for childrenin the age group of 6 months to 3 years, age group of 3 to 6 yearsand pregnant women and lactating mothers required to bemet by providing “Take Home Rations” or nutritious hotcooked meal in accordance with the Integrated ChildDevelopment Services Scheme and nutritional standards forchildren in lower and upper primary classes under the Mid DayMeal Scheme are as follows:

1. Children(6 months to Take Home Ration 500 12-15 3 years)

2. Children(3 to 6years) Morning Snack and 500 12-15Hot Cooked Meal

3. Children (6 months to Take Home Ration 800 20-256 years) who aremalnourished

4. Lower primary classes Hot Cooked Meal 450 12

5. Upper primary classes Hot Cooked Meal 700 20

6. Pregnant women and Take Home Ration 600 18-20Lactating mothers

9. The lockdowns which were placed in the entire country inexercise of the power under the Disaster Management Act, 2005 werelifted by the competent authority in phased manner and graduallyspecified activities were permitted to be opened.

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A10. In this writ petition we had issued notice on 21.09.2020and also directed the petitioner to serve a copy of the petition to thelearned Solicitor General of India. The counter-affidavits have been filedon behalf of Union of India. The Union of India has filed an affidavitdated 20.11.2020. It states that the Supplementary NutritionProgramme supplied under ICDS Scheme is of two types for differentBbeneficiaries i.e. (a)Take Home Ration for pregnant women & lactatingmothers and children in the age group of 6 months to 3 years; and (b)Morning Snacks and Hot Cooked Meal for children in the age group of3-6 years. Since the Supplementary Nutrition Programme isimplemented, managed and controlled by the respective State/UT, it isCat their discretion to decide items of food to be supplied under theSupplementary Nutrition as per local food habits, regional preferencesand availability of food in local area which, however, has to be done bykeeping in view the overall guidelines, nutritional norms and food safetystandards.

D11. It has been further pleaded that Government of India, Ministryof Women & Child Development has issued communication (GuidanceNote) dated 11.11.2020 to States and Union Territories on operationsof Anganwadi Services.

12. After filing of the affidavit the matter was taken up by thisECourt on 27.11.2020 on which dated following order was passed by thisCourt:

“The affidavit has been filed on behalf of the Union of India.In the affidavit it has been stated that the decision has been takenon 11.11.2020 and guidelines issued on operation of AnganwadiFservices with operational guidance note for continuation of servicesin the context of COVID-19 which has been brought on the recordas Annexure R-4.

Let Government of India file a detailed affidavit with regard toimplementation of the guidelines dated 11.11.2020. The States mayGalso file an additional affidavit regarding the measures taken 3with regard to guidelines dated 11.11.2020 issued by theGovernment of India.

Mr. Colin Gonsalves, learned senior counsel has alsosubmitted that for small children, upto 6 years, neither food norany education is provided.H

With regard to the above aspect also, in the additional affidavit,details may be given by the Union of India as well as by theStates. Two weeks’ time is granted. List in the week commencingfrom 14.12.2020.”

13. The Union of India as well as the States and Union Territorieshave filed affidavits in this writ petition bringing on record the stepstaken by the respective States/UTs regarding implementation of therequirement as contained in Sections 4,5 and 6 of the Act, 2013.

14. Shri Colin Gonsalves, learned senior counsel appearing forthe petitioner contends that although initially under the order issued bythe Government of India, Ministry of Home Affairs beneficiary werenot to attend the Anganwadi but after lockdown came to an end due tonon-opening of Anganwadi in various States beneficiaries, childrenpregnant women and lactating mothers are suffering. The pandemic hascaused severe strain on the employment and means of livelihood of alarge sections of the society especially marginal sections, who requireimmediate extension of all benefits as envisaged in the Scheme. ShriGonsalves has also filed additional documents in support of his writ petitionand submits that even National Human Rights Commission has also maderecommendations on 28.09.2020 and 29.09.2020 after impact assessment,issued advisory to reopen Anganwadi Centres immediately. Shri Gonsalvessubmits that due to non-providing of hot cooked meals to children uptothe age of six years and children who are affected of malnutrition theyare suffering which needs immediate attention and remedial action.

15. Smt. Aishwarya Bhati, learned Additional Solicitor Generalappearing for Union of India submits that Union of India has filed itsGuidance Note dated 11.11.2020 providing resumption of AnganwadiServices outside containment zones with immediate effect, aftercomplying health and safety protocols. It is further submitted by thelearned Additional Solicitor General that Union of India has also issuedan operational Guidance Note for continuation of services in thecontext of COVID-19. The Union of India also referring to the GuidanceNote dated 11.11.2020 has sought status report from the States andUnion Territories. In the additional affidavit it has been stated that a fewof UTs and States like Andaman and Nicobar, Chhattisgarh, Goa,Meghalaya and Rajasthan, Anganwadi Centres have been opened andservices are being provided therein.

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A16. Learned counsel appearing for various States and UnionTerritories have also advanced their submissions. The States and UnionTerritories in their affidavits have submitted that the States and UnionTerritories have been providing necessary Home Take Ration as per therequirements to the beneficiaries which were delivered at door stepsonce in 15 days. Some of the States in their affidavits have stated thatBAnganwadi Centres have been opened. With regard to few States it isstated that matter has been referred and the approval of the StateGovernment is awaited. Some of the States have stated that decisionhas been taken, as of now, not to open the Centres looking to thecontinuance of the pandemic. Some of the States have stated that theCCentres are closed till 31.12.2020 and decision will be taken thereafter.

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17. We have considered submissions of the learned counsel forthe parties and have perused the records. Children are the next generationand therefore unless and until the children and the women have thenutritious food, it will affect the next generation and ultimately the countryDas a whole. No one can doubt that children are the future of our countryand 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 theirpotential.

18. As observed above, it is now statutory obligation of the CentreEand the States to provide for nutritional support to the pregnant womenand lactating mothers, nutritional support to children and to take steps toidentify and provide meals for children who suffer from malnutrition.Government has a constitutional obligation to preserve human life. Goodhealth of its citizens is its primary duty. International covenants also aimat highest attainable standards of physical and mental health. This is inFinterest of social justice. Inadequate supply of nutritious food to thecitizens, more particularly to the children and the women shall affecttheir health. Therefore, the same shall be in violation of their fundamentalright to health/right to live with dignity guaranteed under Article 21 ofthe Constitution of India.G

19. The Centre as well as States are statutorily obliged toimplement statutory obligation as imposed under Sections 4,5 and 6 ofthe Act, 2013. The nutritional support is required to be of the nutritionalstandards which have already been laid down to Schedule II of the Act, 2013 and all States/UTs are obliged to implement such Scheme andhave to comply with Schedule II. The main emphasis in the writ petitionbeing the issue of opening of Anganwadi Centres throughout the country,we need to first consider the above issue. Provision of foodgrains as perthe provisions of the National Food Security Act, 2013 is a statutoryobligation on the State. Article 47 of the Constitution provides that oneof the primary duties of the State is to raise the level of nutrition and thestandard of living of the people.

20. After issuance of Order dated 24.03.2020 by Ministry ofHome Affairs, for containment of Covid-19, Anganwadi Centres inStates/Union Territories were closed. The Government of India, Ministryof Women and Child Development vide letter dated 30.03.2020 directedissuance of necessary instructions to the District Authorities to utilizeservices of Anganwadi workers/helpers for providing supplementarynutrition to the beneficiaries at their doorsteps. After taking suitablemeasures as suggested by Health Authorities, Government of India,Ministry of Home Affairs issued an order dated 15.04.2020 in exerciseof powers under Section 10(2)(l) of the Disaster Management Act, 2005,wherein in paragraph 8, it was provided that Anganwadis shall remainfunctional by distributing the food items and nutrition once in fifteendays at the doorsteps of the beneficiaries i.e. Children, pregnant womenand lactating mothers. The order further stated the beneficiaries shallnot attend the Anganwadi.

21. By subsequent order issued by the Government of India,Ministry of Home Affairs, various more activities were permitted. ON14.10.2020, the Ministry of Women and Child Development wrote to theMinistry of Home Affairs (Disaster Management Division) regardingreopening of Anganwadi Centres. The Government of India, Ministryof Home Affairs, issued an O.M. dated 22.10.2020 stating that theMinistry of Women and Child Development may take decision afterconsultation with concerned States/Union Territories for reopening ofAnganwadi centres which are out of the containment zone takingappropriate measures related to health and safety.

22. The Government of India, Ministry of Women and ChildDevelopment issued a guidance note on 11.11.2020 on operation ofAnganwadi services, which note is to the following effect: - A

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“F. No. PA/85/2020-CPMU C No 85941Government of IndiaMinistry of Women & Child Development Jeevan Vihar Building,New Delhi - 11000111[th] November, 2020

To

The Principal Secretaries/Secretaries,Department of Social Welfare/Women & ChildDevelopment of all States/UTs Subject: Guidance note on operations ofAnganwadi Services — regarding, Sir/Madam,

Under-nutrition is one of the leading causes of morbidity andmortality in children under the age of 5 years. Delivery ofpreventive services to mitigate the impact of the pandemic on thenutrition is well recognized. Provision of essential services likeGrowth Monitoring Referral, and supplementary nutrition etc. toensure the health and well- being of the pregnant ladies, lactatingmothers and children below 5 years is most important. In view ofCovid l9 pandemic globally, it is imperative to ensure, that thebeneficiaries do not suffer and remain away from Anganwadiservices.

2. Hence, Anganwadi Services may be resumed outsidecontainment zones with immediate effect, complying health andsafety protocols. Further, cleanliness, Hygiene and Sanitizationmay be ensured in and around the premises of Anganwadi Center,use of mask/face covers shall be mandatory for everyonevisiting the Centre, including AWW and AWH. Also, frequent handwashing, and strict social distancing as per MoHFW guidelinesmust be followed at Anganwadi Centre.

3. Ministry of Women and Child Development has taken upthe matter with Ministry of Home Affairs regarding reopening ofAWCs. Ministry of Home Affairs vide OM No. 40-6/2020/DM-1(A)/Part-2 dated 22nd October 2020 (copy enclosed) advisedthat AWCs may be opened outside the containment zones, by adhering to the Standard Operating Procedures (SOP) related tohealth and security measures in consultation with State/UTs.

4. A guidance note for resuming Anganwadi Services isenclosed herewith. Based on the guidance note, States / UTGovernments need to develop their own SOP for reopening AWCwhen the State/Union Territory Governments declare it safefor AWC to operate. All States/UTs are expected to complywith the COVID-19 related directions issued by Ministryof Home Affairs and Ministry of Health and Family Welfare,Government of India, from time to time.

5. Therefore, it is requested that States/UTs may decidereopening of AWCs outside containment zones while adhering tohealth and safety protocols as per the guidelines of MOHFW.

Yours sincerely,

Executive Director,POSHAN Abhiyan, MWCD

Copy to:PS to Minister,PS to MoS,Secretary MoHFW and Secretary MHA”

23. It is also relevant to notice that in the month of September,2020, the National Human Rights Commission issued an advisory onRight to food security and nutrition in context of Covid-19. The NationalHuman Rights Commission issued following Advisory dated 28.09.2020Related to Nutrition: - “I. Implementation of Anganwadi Services

i.Recognise ICDS as an ESSENTIAL SERVICE andreopen anganwadi centres immediately to provide crucialgrowth monitoring, immunization, cooked meal, andnutritional counselling services, with adequate safetyprotocols to prevent COVID infection for anganwadiworkers, women and children.

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Aii.Ensure that sufficient quantity of dry rations (food grains,eggs, milk powder and medicines, etc.) and take- homerations are made available to children under three years, aswell as pregnant and lactating women.”

24. After issuing a guidance note on 11.11.2020, several StatesBhave taken decision to open Anganwadi Centres. The State of Meghalayaopened its Anganwadi Centres w.e.f. 03.12.2020. The State of Punjabopened its Anganwadi Centres w.e.f. 09.12.2020, the State of Rajasthanalso opened its Anganwadi Centres w.e.f. 07.12.2020.

25. Even before the order dated 11.11.2020, the State ofCChhattisgarh had opened 12,593 Anganwadi Centres in the State w.e.f.September, 2020. It is relevant to notice the affidavit filed on behalf ofthe State of Arunachal Pradesh. The State of Arunachal Pradesh issuedder dated 18.06.2020 titled “Strategy for opening of Anganwadi Centres”and under the aforesaid strategies, Anganwadi Centres were to bereopened in two phases, first Phase-I from 15.07.2020 and phase-IIDfrom 01.08.2020. Standard Operating Procedure dated 18.06.2020 wasissued by the Government of Arunachal Pradesh, Ministry of Womenand Child Development department.

26. On the other hand, there are few States who have takendecision not to reopen Anganwadi Centres. We may notice the counterEaffidavit filed on behalf of the State of Assam. In the affidavit, it hasbeen stated that Anganwadi Centres will be open as and when thepermission will be accorded by the Central Government in this regard.The State of Assam is under the impression that the order issued bythe Ministry of Home Affairs dated 25.11.2020, provides for not openingFof the Centres. The order dated 25.11.2020 of Government of India,Ministry of Home Affairs, filed as Annexure-R1. Paragraph 16 whichcontains the heading “protection of Vulnerable persons” is as follows: - “16. Persons above 65 years of age, persons with co-morbidities, pregnant women, and children below the age of 10Gyears are advised to stay at home, except for essential andhealth purposes.”

27. The paragraph 16 as noted above does not in any mannercreate any prohibition in opening of Anganwadi Centres. The aboveguidelines have been issued keeping in view the protection of vulnerablepersons and which requires pregnant women, children below the age ofH

10 years to stay at home except for essential and healthpurposes.Services which are being provided by Anganwadi Centres are essentialservices.

28. We have already noticed the guidance note dated 11.11.2020issued by Government of India which permits reopening of AnganwadiCentres with consultation of States/Union Territories. State of Assamwas thus fully empowered to take the decision regarding reopening ofAnganwadi Centres and its stand taken in paragraph 7 to the followingeffect- “All Anganwadi Centres will be opened as and when thepermission is accorded by the Central Government in this regard” is notcorrect. The State could have very well taken a decision forreopening the Anganwadi Centres in view of the guidance note issuedby the Government of India dated 11.11.2020.

29. The State of Maharashtra in its affidavit has stated thatthe Disaster Management department has restricted the reopening ofAnganwadi Centres till the control of Covid-19 pandemic in the Stateand has approved the continuation of arrangement of supplies of TakeHome Rations at the doorsteps of the beneficiaries. Some of theStates have also in their affidavits stated that Anganwadi Centres beclosed till particular date like State of Tripura states that AnganwadiCentres are to be closed till 31.12.2020, State of Mizoram states thatAnganwadi Centres be closed till 10.01.2021. Some of the States/Union Territories have stated that the approval from the States/Union Territories are awaited for reopening of Anganwadi Centres.

30. All the States/Union Territories in their affidavits havegiven details of providing Take Home Rations(THR) as per guidelinesand requirement contained in Act, 2013. Different cereals and otheritems have been referred to in the affidavits filed by the States/UnionTerritories which according to them complies with nutrition standards.Most of the States/Union Territories have mentioned cereals as TakeHome Ration for the beneficiaries from 3 to 6 years of age. The Stateof Maharashtra claim to supply Wheat/Rice-62 grams, Masoor Dal-28 grams, Chana-30 grams, Mirchi Powder-4 grams, Turmeric Powder-4 grams, Salt-8 grams, Soybean Oil-10 gram per day per beneficiary.

31. The State of Bihar for a few months has not supplied TakeHome Rations rather it has directed for crediting the amount equivalentto Take Home Ration to the Bank Account of the beneficiaries or A

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Atheir parents. The State of Bihar, however, has started distributingcereals as Home Take Rations by orders issued by the State of Bihar inApril, 2020. The State of Gujarat in its affidavit has stated that it isproviding to Children (below 6 years of Age), 8 packets of Balshakti(500gm Packets) Take Home Ration per month to match up nutritionalrequirements. Take Home Ration is being distributed through the mediumBof Gujarat Cooperative Milk Marketing Federation. It further states thatsince June 2020, the ready to eat nutritional traditional sweet (Sukhadi)1-Kilogram per week in lieu of hot cooked meals is provided to 3 to 6years’ children. We are of the view that the State ought to have includedcertain cereals in Take Home Ration instead of providing onlyC‘Balshakti’ and ‘Sukhadi’. The nutritional standard as provided inSchedule II of Act, 2013, has to be met by all States and Union Territories.

32. There is no doubt that the Central Government as well as allthe States and Union Territories have issued necessary guidelines forimplementing statutory requirements of Act, 2013 and for meetingDthe nutritional standards. The big question however is as to what extentthe implementation is on the ground and the benefits are extended tobeneficiaries as required by the Statute. The beneficiaries whichbelong to vulnerable class are not equipped with suitable mechanismsto raise issues of non-implementation and not providing food articlescomplying with nutritional standards as provided in the Statute.

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33. It is the obligation of the State to ensure that pregnant women,lactating mothers and children in the age of 3 to 6 years and childrenwho suffer from malnutrition are provided their dues. The State has toprovide an appropriate mechanism for supervision and check, childdevelopment officers and other district level officers who are entrustedFto monitor the functioning of Anganwadi Centres have to be extravigilant and take steps so that no beneficiary is denied its dues. AllStates/Union Territories should evolve an appropriate mechanism forsupervision so that dues are received by beneficiaries for whom schemesare in place. It is for the State to secure health to its citizens as itsGprimary duty. No doubt, the Government is rendering this obligationthrough various schemes, such as, opening of Aanganwadis, providingnutritious food through Aanganwadis, Mid-day Meal Scheme, etc., butin order to make it meaningful, it has to be within the reach of its people,as far as possible, and the Government must supply the nutritious food inreal sense bearing in mind the provisions of National Food Security Act.H

34. The Government of India by its guidance note permittedall the States and Union Territories to open Anganwadi Centres, it isthe obligation of the States/Union Territories to take decision for openingof Anganwadi Centres. As noted above, several States/UnionTerritories have already started running their Anganwadi Centres whichis a positive step towards achievement of the goal for which AnganwadiCentres were envisaged. We are of the view that unless there are anyspecific reasons for not opening of Anganwadi Centres, all AnganwadiCentres beyond the containment zones should be made functional by allthe States/Union Territories at an early date. All States may review thesituation and take positive decisions on or before 31.01.2021 and unlessthere are specific decisions taken by the State Disaster ManagementAuthority of a particular State, Anganwadi Centres be opened on orbefore 31.01.2021.

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35. In view of the above discussions, we allow this writ petitionwith following directions: - D

I)As per guidance note dated 11.11.2020 issued by Governmentof India, Ministry of Women and Child Development, allStates/Union Territories who have not yet opened AnganwadiCentres shall take a decision to open AnganwadiCentres on or before 31.01.2021 situated outside thecontainment zone.

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II)The decision for not opening Anganwadi Centres in any StateUnion Territories or any part of State/Union Territory shallbe taken only after the State Disaster ManagementAuthority of the State direct for not opening of AnganwadiCentres in State/particular area ofthe State situatedFoutside containment zone.

III) Anganwadi Centres situated in the containment zone shallnot be opened till the containment continues.

IV) All States/Union Territories shall ensure that nutritionalstandards as provided in Schedule II of National FoodSecurity Act, 2013, reproduced herein above in para 13 isfulfilled by providing nutritional support to pregnant women,lactating mothers, nutritional support to children who sufferfrom malnutrition.

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228SUPREME COURT REPORTS[2021] 1 S.C.R.

AV)All the States/Union Territories shall issue necessary ordersregarding monitoring and supervision of Anganwadi Centresto ensure that the benefit reaches to the beneficiaries and aComplaint Redressal Mechanism be put in place in eachdistrict.

B36. The parties shall bear their own costs.

Devika Gujral

Writ petition allowed.

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