DIPIKA JAGATRAM SAHANIversusUNION OF INDIA AND ORS.

                          [2021] 1 S.C.R. 209                            209


                 DIPIKA JAGATRAM SAHANI                                  A
                                 v.
                 UNION OF INDIA AND ORS.
               (Writ Petition (Civil) No. 1039 of 2020)
                        JANUARY 13, 2021                                 B
       [ASHOK BHUSHAN, R. SUBHASH REDDY AND
                  M. R. SHAH, JJ.]
       Anganwadi Centres – Writ petition filed as a Public Interest
Litigation questioning the closure of Anganwari centres across the
                                                                         C
country – Petitioner stated that through Anganwari Centres
supplementary nutrition to pregnant women, lactating mothers,
adolescent girls and children upto the age of six years were being
provided and prayed for direction to Centre and States for reopening
all the Anganwadi Centres in the country and to provide Anganwari
services as were provided before the lockdown and in accordance          D
with ss.4 to 7 of National Food Security Act, 2013 – Held:
Government has a constitutional obligation to preserve human life
– The Centre as well as States are statutorily obliged to implement
statutory obligation as imposed under ss.4, 5 and 6 of the Act, 2013
– After spread of COVID-19, Anganwadi Centres were closed
                                                                         E
throughout the country in March, 2020 – The Ministry of Women
and Child Development, Government of India had issued guidance
note dated 11.11.2020 providing for resumption of Anganwari
Services outside the containment zones – Therefore, in view of the
guidelines, all States/Union Territories are directed to take decision
in respect of opening Anganwadi Centres situated outside the             F
containment zones – The decision for not opening Anganwadi
Centres in any State/Union Territories or any part of State/Union
Territory shall be taken only after the State Disaster Management
Authority of the State direct for not opening of Anganwadi Centres
in State/particular area of the State situated outside containment
                                                                         G
zone – Anganwadi Centres situated in the containment zone shall
not be opened till the containment continues – All States/Union
Territories shall ensure that nutritional standards as provided in
Schedule II of National Food Security Act, 2013, is fulfilled by
providing nutritional support to pregnant women, lactating mothers,
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                                 209
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A     nutritional support to children who suffer from malnutrition – All
      the States/Union Territories shall issue necessary orders regarding
      monitoring and supervision of Anganwadi Centres to ensure that
      the benefit reaches to the beneficiaries and a Complaint Redressal
      Mechanism be put in place in each district – Constitution of India –
      Art.47 – National Food Security Act, 2013 – ss.4 to 7.
B
            Allowing the writ petition, the Court
             HELD: 1. It is now statutory obligation of the Centre and
      the States to provide for nutritional support to the pregnant women
      and lactating mothers,nutritional support to children and to take
C     steps to identify and provide meals for children who suffer from
      malnutrition. International covenants also aim at highest
      attainable standards of physical and mental health. This is in
      interest of social justice. Inadequate supply of nutritious food to
      the citizens, more particularly to the children and the women shall
      affect their health. Therefore, the same shall be in violation of
D     their fundamental right to health/right to live with dignity
      guaranteed under Article 21 of the Constitution of India. The
      Centre as well as States are statutorily obliged to implement
      statutory obligation as imposed under Sections 4, 5 and 6 of the
      Act, 2013. The nutritional support is required to be of the
E     nutritional standards which have already been laid down to
      Schedule II of the Act, 2013 and all States/UTs are obliged to
      implement such Scheme and have to comply with Schedule II.
      Provision of food grains as per the provisions of the Act, 2013 is
      a statutory obligation on the State. Article 47 of the Constitution
      provides that one of the primary duties of the State is to raise the
F     level of nutrition and the standard of living of the people. [Paras
      18, 19][220-E-H; 221-A-B]
             2. It is the obligation of the State to ensure that pregnant
      women, lactating mothers and children in the age of 3 to 6
      years and children who suffer from malnutrition are provided
G     their dues. The State has to provide an appropriate mechanism
      for supervision and check, child development officers and other
      district level officers who are entrusted to monitor the functioning
      of Anganwadi Centres have to be extra vigilant and take steps

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      DIPIKA JAGATRAM SAHANI v. UNION OF INDIA                            211


so that no beneficiary is denied its dues. All States/Union               A
Territories should evolve an appropriate mechanism for
supervision so that dues are received by beneficiaries for whom
schemes are in place. It is for the State to secure health to its
citizens as its primary duty. No doubt, the Government is
rendering this obligation through various schemes, such as,
                                                                          B
opening of Aanganwadis, providing nutritious food through
Aanganwadis, Mid-day Meal Scheme, etc., but in order to make
it meaningful, it has to be within the reach of its people, as far as
possible, and the Government must supply the nutritious food in
the real sense bearing in mind the provisions of National Food
Security Act. The Government of India by its guidance note                C
permitted all the States and Union Territories to open Anganwadi
Centres, it is the obligation of the States/Union Territories to
take decision for opening of Anganwadi Centres. Several States/
Union Territories have already started running their Anganwadi
Centres which is a positive step towards achievement of the goal
                                                                          D
for which Anganwadi Centres were envisaged. Unless there are
any specific reasons for not opening of Anganwadi Centres, all
Anganwadi Centres beyond the containment zones should be
made functional by all the States/Union Territories at an early
date. [Paras 33, 34][226-E-H; 227-A-B; 227-C]
      CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.             E
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,   F
S. Prabu Ramasubramanian, Ms. Ruchi Kohli, Ms. Archana Pathak
Dave, Akshay Amritanshu, Ms. Chinmayee Chandra, B. K. Satija,
Gurmeet Singh Makker, Avijit Mani Tripathi, Upendra Mishra, Ms.
Deepanwita Priyanka, Ms. Vishakha, Ms. Garima Prashad, Abhinav S.
Agarwal, Ms. Diksha Rai, Ms. Palak Mahajan, S. Udaya Kumar Sagar,
Ms. Swati Bhardwaj, Ms. Uttara Babbar, Ms. Bhavana Duhoon, Manan          G
Bansal, Sachin Patil, Rahul Chitnis, Aaditya A. Pande, Geo Joseph,
Sandeep Kumar Jha, Abhimanyu Tewari, Ms. Eliza Bar, Ms. Priyanka
Prakash, Ms. Beena Prakash, G. Prakash, Abhinav Mukerji, Ms. Bihu

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A     Sharma, Ms. Pratishtha Vij, Siddhesh Kotwal, Ms. Ana Upadhyay,
      Nirnimesh Dube, Raghvendra Kumar, Anand Kumar Dubey, Narendra
      Kumar, Abhimanyu Jhamba, Ashish Jhamb, Ms. R. A. Thonpinao Thangal,
      Samir Ali Khan, K. V. Jagdishvaran, Ms. G. Indira, Dr. Monika Gusain,
      Chirag M. Shroff, Ms. Abhilasha Bharti, V. N. Raghupathy, Suhaan
      Mukerji, Vishal Prasad, Nikhil Parikshith, Abhishek Manchanda,
B
      Sayandeep Pahari, Shuvodeep Roy, Rahul Raj Mishra, M. Yogesh Kanna,
      Raja Rajeshwaran S., Aditya Chadha, Pukhrambam Ramesh Kumar,
      Ms. Astha Sharma, Ms. K. Enatoli Sema, M/s. PLR Chambers and Co.,
      Advs. for the appearing parties.
            The Judgment of the Court was delivered by
C
            ASHOK BHUSHAN, J.
             1. This writ petition has been filed as a Public Interest
      Litigation under Article 32 of the Constitution of India questioning
      the closure of the Anganwadi Centres across the country. The petitioner
D     states that through Anganwadi Centres supplementary nutrition to
      pregnant women, lactating mothers, adolescent girls and children upto
      the age of 6 years were being provided which fulfilled the State objective
      of holistic development of children under 6 years and to provide food
      and nutrition to the beneficiaries. In the writ petition the petitioner
      impleaded the Union of India, all States and Union Territories and has
E     prayed for following reliefs:
            a) For a writ of mandamus directing the Union ofIndia and all
               States and Union Territories to forthwith reopen all the
               Anganwadi Centres in the country and provide Anganwadi
               services as before the lockdown and in accordance with
F              Sections 4 to 7 of the National Food Security Act, 2013.
            b) For writ of mandamus directing the Union of India and all
               States and Union Territories to provide Hot Cooked Meals,
               Take Home Rations in consonance to the provisions of the
               National Food Security Act, 2013 as well as The
G              Supplementary Nutrition (under the Integrated Child
               Development Services Scheme)Rules, 2020 as well as make
               provisions for additional Supplementary Nutrition provisions
               to all beneficiaries of the ICDS Scheme in the form of a
               comprehensive package of Cooked Food, Eggs, Fruits, dry
               rations including cereals, pulses, etc.
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       DIPIKA JAGATRAM SAHANI v. UNION OF INDIA                               213
                  [ASHOK BHUSHAN, J.]

      c) For a writ of mandamus directing the Union of India and all          A
         States and Union Territories to conduct growth monitoring
         of children to document growth in the wake of the after effects
         of the pandemic more particularly main nourishment among
         children and anemia in girl children and initiate corrective steps
         forthwith.
                                                                              B
      d) For an order in terms of recommendations 1-6 of the Right to
         Food Campaign in its representation dated 6.8.20 to the Union
         of India at Annexure P-8 hereto and as set out in paragraph
         no.37 above.
      e) For any other order deemed fit and proper under the                  C
         circumstances of the present case.”
        2. The Constitution of India with the object of securing to all
its citizens social and economic justice contains various Articles which
empower making of special law in favour of women and children. Article
47 of the Constitution which forms the part of Directive Principles           D
of the State Policy provides that the State shall regard the raising of the
level of nutrition and the standard of living of its people and the
improvement of public health as among its primary duties. The
Government of India with the above objective launched a welfare
scheme, namely, Integrated Child Development Services Scheme in the
year 1975. The Scheme was designed as an early childhood development          E
programme aimed to address health, nutrition and development needs of
young children who are future of India and pregnant and nursing mothers.
The Scheme was designed to promote holistic development of children
under 6 years of age. This Court in a Public Interest Litigation in Writ
Petition No.196 of 2001, People’s Union for Civil Liberties vs.               F
Union of India and others, had issued various directions for protection
of right to food of the poor and the underprivileged sections including
children and women. This Court has been pro-actively directing the
Central Government and the State Governments to effectively
implement the Integrated Child Development Services Scheme. Various
directions were issued by this Court from time to time.                       G
       3. The Parliament enacted the National Food Security Act, 2013
(hereinafter referred to as the “Act, 2013”) to provide for food and
nutritional security in human life cycle approach, by ensuring access to
adequate quantity of quality food at affordable prices to people to live a
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214             SUPREME COURT REPORTS                           [2021] 1 S.C.R.


A     life with dignity and for matters connected therewith. The Statement of
      Objects and Reasons of the Act apart from containing various other
      objects, proposed to provide following also in paragraph 4(c), (d) and
      (e):
            “4. In view of the preceding paragraphs, it is proposed to enact
B           a new legislation, namely, the National Food Security Bill,
            2011, to-
            ......   ...... ......   ......
            (c) entitle every pregnant woman and lactating mother to meal,
C           free of charge, during pregnancy and six months after child birth,
            through the local anganwadi, so as to meet the nutritional standards
            specified in Schedule II; and to provide to such women maternity
            benefit of rupees one thousand per month for a period of six
            months in accordance with a scheme, including cost sharing,
            payable in such instalments as may be prescribed by the Central
D           Government.
            (d) entitle every child up to the age of fourteen years-(i) age
            appropriate meal, free of charge, through the local anganwadi so
            as to meet the nutritional standards specified in Schedule II
            in the case of children in the age group of six months to six
E           years; and (ii) one mid day meal, free of charge, everyday, except
            on school holidays, in all schools run by local bodies,
            Government and Government aided schools, up to class VIII, so
            as to meet the nutritional standards specified in Schedule II in the
            case of children in the age group of six to fourteen years;
F           (e) require the State Government to identify and provide meals
            through the local anganwadi, free of charge, to children who
            suffer from malnutrition, so as to meet the nutritional standards
            specified in Schedule II; and implement schemes covering
            entitlements of women and children in accordance with the
            guidelines, including cost sharing, between the Central Government
G
            and the State Governments in such manner as may be prescribed
            by the Central Government.
            4. The Act, 2013 by Section 4 creates a statutory right of every
      pregnant woman and lactating mother free meals during pregnancy and
      six months after the child birth. Section 5 provides for nutritional support
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       DIPIKA JAGATRAM SAHANI v. UNION OF INDIA                              215
                  [ASHOK BHUSHAN, J.]

to children, in the case of children in the age group of six months to six   A
years, age appropriate meal, free of charge, through the local Anganwadi
so as to meet the nutritional standards. Similarly, Section 6 provides for
and management of child malnutrition. Sections 4,5 and 6 are as follows:
      “Section 4. Nutritional support to pregnant women and
      lactating mothers.-Subject to such schemes as may be framed            B
      by the Central Government, every pregnant woman and lactating
      mother shall be entitled to—
          (a) meal, free of charge, during pregnancy and six months
          after the child birth, through the local anganwadi, so as to
          meet the nutritional standards specified in Schedule II; and       C
          (b) maternity benefit of not less than rupees six thousand, in
          such instalments as may be prescribed by the Central
          Government:
         Provided that all pregnant women and lactating mothers in
      regular employment with the Central Government or State                D
      Governments or Public Sector Undertakings or those who are in
      receipt of similar benefits under any law for the time being in
      force shall not be entitled to benefits specified in clause (b).
         5. Nutritional support to children.- (1) Subject to the
      provisions contained in clause (b), every child up to the age of       E
      fourteen years shall have the following entitlements for his
      nutritional needs, namely:—
          (a) in the case of children in the age group of six months to
          six years, age appropriate meal, free of charge, through the
          local anganwadi so as to meet the nutritional standards            F
          specified in Schedule II: Provided that for children below
          the age of six months, exclusive breast feeding shall be
          promoted;
          (b) in the case of children, up to class VIII or within the age
          group of six to fourteen years, whichever is applicable, one       G
          mid-day meal, free of charge, everyday, except on school
          holidays, in all schools run by local bodies, Government and
          Government aided schools, so as to meet the nutritional
          standards specified in Schedule II.
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216            SUPREME COURT REPORTS                           [2021] 1 S.C.R.


A              (2) Every school, referred to in clause (b) of sub-section (1),
            and anganwadi shall have facilities for cooking meals, drinking
            water and sanitation:
               Provided that in urban areas facilities of centralised kitchens
            for cooking meals may be used, wherever required, as per the
B           guidelines issued by the Central Government.
               6. Prevention and management of child malnutrition.-
            The State Government shall, through the local anganwadi,
            identify and provide meals, free of charge, to children who suffer
            from malnutrition, so as to meet the nutritional standards specified
C           in Schedule II.”
            5. The Anganwadi Centres which were running in the country
      since 1975 under the Integrated Child Development Services Scheme,
      now have been given statutory recognition under the Act, 2013. Section
      2(1) defines Anganwadi in the following words:
D           “Section 2(1) “anganwadi” means a child care and development
            centre set up under the Integrated Child Development Services
            Scheme of the Central Government to render services covered
            under section 4, clause (a) of sub- section (1) of section 5 and 6.”
             6. Anganwadi Centres which are manned by Anganwadi workers/
E     helpers are entrusted with implementation of a large number of welfare
      schemes initiated by the Central Government as well as by the State
      Governments. The beneficiaries who are registered with Anganwadi
      are also provided following:
               a) providing supplementary nutrition;
F
               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 for
      beneficiaries being essential services were permitted to be conducted
      by Anganwadi staff by resorting to Take Home Ration.
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      DIPIKA JAGATRAM SAHANI v. UNION OF INDIA                             217
                 [ASHOK BHUSHAN, J.]

      8. Under Section 7 of the Act, 2013 it is the obligation of the      A
State Governments to implement schemes covering entitlements under
Sections 4,5 and 6 of the Act, 2013 in accordance with the guidelines,
including cost sharing, between the Central Government and the State
Governments in such manner as may be prescribed by the Central
Government. The Schedule II of the Act, 2013 provides for nutritional
                                                                           B
standards. Schedule II of the Act, 2013 is as follows:
                             “SCHEDULE II
                       [See sections 4(a), 5(1) and 6]
                      NUTRITIONAL STANDARDS
      Nutritional standards: The nutritional standards for children        C
      in the age group of 6 months to 3 years, age group of 3 to 6 years
      and pregnant women and lactating mothers required to be
      met by providing “Take Home Rations” or nutritious hot
      cooked meal in accordance with the Integrated Child
      Development Services Scheme and nutritional standards for
      children in lower and upper primary classes under the Mid Day        D
      Meal Scheme are as follows:
      Serial    Category        Type of     Calories Protein number
                                meal        (Keal)      (g)
      1.   Children(6 months to Take Home Ration 500 12-15
                                                                           E
           3 years)
      2. Children(3 to 6years) Morning Snack and 500 12-15
                             Hot Cooked Meal
      3.   Children (6 months to Take Home Ration 800 20-25
           6 years) who are                                                F
           malnourished
      4.   Lower primary classes      Hot Cooked Meal        450   12
      5.   Upper primary classes Hot Cooked Meal             700 20
      6. Pregnant women and          Take Home Ration        600 18-20     G
         Lactating mothers
       9. The lockdowns which were placed in the entire country in
exercise of the power under the Disaster Management Act, 2005 were
lifted by the competent authority in phased manner and gradually
specified activities were permitted to be opened.
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218            SUPREME COURT REPORTS                          [2021] 1 S.C.R.


A            10. In this writ petition we had issued notice on 21.09.2020
      and also directed the petitioner to serve a copy of the petition to the
      learned Solicitor General of India. The counter-affidavits have been filed
      on behalf of Union of India. The Union of India has filed an affidavit
      dated 20.11.2020. It states that the Supplementary Nutrition
      Programme supplied under ICDS Scheme is of two types for different
B
      beneficiaries i.e. (a)Take Home Ration for pregnant women & lactating
      mothers and children in the age group of 6 months to 3 years; and (b)
      Morning Snacks and Hot Cooked Meal for children in the age group of
      3-6 years. Since the Supplementary Nutrition Programme is
      implemented, managed and controlled by the respective State/UT, it is
C     at their discretion to decide items of food to be supplied under the
      Supplementary Nutrition as per local food habits, regional preferences
      and availability of food in local area which, however, has to be done by
      keeping in view the overall guidelines, nutritional norms and food safety
      standards.
D           11. It has been further pleaded that Government of India, Ministry
      of Women & Child Development has issued communication (Guidance
      Note) dated 11.11.2020 to States and Union Territories on operations
      of Anganwadi Services.
             12. After filing of the affidavit the matter was taken up by this
E     Court on 27.11.2020 on which dated following order was passed by this
      Court:
                “The affidavit has been filed on behalf of the Union of India.
            In the affidavit it has been stated that the decision has been taken
            on 11.11.2020 and guidelines issued on operation of Anganwadi
F           services with operational guidance note for continuation of services
            in the context of COVID-19 which has been brought on the record
            as Annexure R-4.
               Let Government of India file a detailed affidavit with regard to
            implementation of the guidelines dated 11.11.2020. The States may
G           also file an additional affidavit regarding the measures taken 3
            with regard to guidelines dated 11.11.2020 issued by the
            Government of India.
               Mr. Colin Gonsalves, learned senior counsel has also
            submitted that for small children, upto 6 years, neither food nor
            any education is provided.
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       DIPIKA JAGATRAM SAHANI v. UNION OF INDIA                                 219
                  [ASHOK BHUSHAN, J.]

         With regard to the above aspect also, in the additional affidavit,     A
      details may be given by the Union of India as well as by the
      States. Two weeks’ time is granted. List in the week commencing
      from 14.12.2020.”
      13. The Union of India as well as the States and Union Territories
have filed affidavits in this writ petition bringing on record the steps        B
taken by the respective States/UTs regarding implementation of the
requirement as contained in Sections 4,5 and 6 of the Act, 2013.
       14. Shri Colin Gonsalves, learned senior counsel appearing for
the petitioner contends that although initially under the order issued by
the Government of India, Ministry of Home Affairs beneficiary were              C
not to attend the Anganwadi but after lockdown came to an end due to
non-opening of Anganwadi in various States beneficiaries, children
pregnant women and lactating mothers are suffering. The pandemic has
caused severe strain on the employment and means of livelihood of a
large sections of the society especially marginal sections, who require
immediate extension of all benefits as envisaged in the Scheme. Shri            D
Gonsalves has also filed additional documents in support of his writ petition
and submits that even National Human Rights Commission has also made
recommendations on 28.09.2020 and 29.09.2020 after impact assessment,
issued advisory to reopen Anganwadi Centres immediately. Shri Gonsalves
submits that due to non-providing of hot cooked meals to children upto          E
the age of six years and children who are affected of malnutrition they
are suffering which needs immediate attention and remedial action.
      15. Smt. Aishwarya Bhati, learned Additional Solicitor General
appearing for Union of India submits that Union of India has filed its
Guidance Note dated 11.11.2020 providing resumption of Anganwadi                F
Services outside containment zones with immediate effect, after
complying health and safety protocols. It is further submitted by the
learned Additional Solicitor General that Union of India has also issued
an operational Guidance Note for continuation of services in the
context of COVID-19. The Union of India also referring to the Guidance
Note dated 11.11.2020 has sought status report from the States and              G
Union Territories. In the additional affidavit it has been stated that a few
of UTs and States like Andaman and Nicobar, Chhattisgarh, Goa,
Meghalaya and Rajasthan, Anganwadi Centres have been opened and
services are being provided therein.
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220             SUPREME COURT REPORTS                            [2021] 1 S.C.R.


A            16. Learned counsel appearing for various States and Union
      Territories have also advanced their submissions. The States and Union
      Territories in their affidavits have submitted that the States and Union
      Territories have been providing necessary Home Take Ration as per the
      requirements to the beneficiaries which were delivered at door steps
      once in 15 days. Some of the States in their affidavits have stated that
B
      Anganwadi Centres have been opened. With regard to few States it is
      stated that matter has been referred and the approval of the State
      Government is awaited. Some of the States have stated that decision
      has been taken, as of now, not to open the Centres looking to the
      continuance of the pandemic. Some of the States have stated that the
C     Centres are closed till 31.12.2020 and decision will be taken thereafter.
              17. We have considered submissions of the learned counsel for
      the parties and have perused the records. Children are the next generation
      and therefore unless and until the children and the women have the
      nutritious food, it will affect the next generation and ultimately the country
D     as a whole. No one can doubt that children are the future of our country
      and if there is some stinginess in providing them with adequate nutrition,
      the country as a whole is deprived in future of taking the benefit of their
      potential.
              18. As observed above, it is now statutory obligation of the Centre
E     and the States to provide for nutritional support to the pregnant women
      and lactating mothers, nutritional support to children and to take steps to
      identify and provide meals for children who suffer from malnutrition.
      Government has a constitutional obligation to preserve human life. Good
      health of its citizens is its primary duty. International covenants also aim
      at highest attainable standards of physical and mental health. This is in
F     interest of social justice. Inadequate supply of nutritious food to the
      citizens, more particularly to the children and the women shall affect
      their health. Therefore, the same shall be in violation of their fundamental
      right to health/right to live with dignity guaranteed under Article 21 of
      the Constitution of India.
G           19. The Centre as well as States are statutorily obliged to
      implement statutory obligation as imposed under Sections 4,5 and 6 of
      the Act, 2013. The nutritional support is required to be of the nutritional
      standards which have already been laid down to Schedule II of the Act,

H
       DIPIKA JAGATRAM SAHANI v. UNION OF INDIA                                 221
                  [ASHOK BHUSHAN, J.]

2013 and all States/UTs are obliged to implement such Scheme and                A
have to comply with Schedule II. The main emphasis in the writ petition
being the issue of opening of Anganwadi Centres throughout the country,
we need to first consider the above issue. Provision of foodgrains as per
the provisions of the National Food Security Act, 2013 is a statutory
obligation on the State. Article 47 of the Constitution provides that one
                                                                                B
of the primary duties of the State is to raise the level of nutrition and the
standard of living of the people.
       20. After issuance of Order dated 24.03.2020 by Ministry of
Home Affairs, for containment of Covid-19, Anganwadi Centres in
States/Union Territories were closed. The Government of India, Ministry
of Women and Child Development vide letter dated 30.03.2020 directed            C
issuance of necessary instructions to the District Authorities to utilize
services of Anganwadi workers/helpers for providing supplementary
nutrition to the beneficiaries at their doorsteps. After taking suitable
measures as suggested by Health Authorities, Government of India,
Ministry of Home Affairs issued an order dated 15.04.2020 in exercise           D
of powers under Section 10(2)(l) of the Disaster Management Act, 2005,
wherein in paragraph 8, it was provided that Anganwadis shall remain
functional by distributing the food items and nutrition once in fifteen
days at the doorsteps of the beneficiaries i.e. Children, pregnant women
and lactating mothers. The order further stated the beneficiaries shall
not attend the Anganwadi.                                                       E

      21.By subsequent order issued by the Government of India,
Ministry of Home Affairs, various more activities were permitted. ON
14.10.2020, the Ministry of Women and Child Development wrote to the
Ministry of Home Affairs (Disaster Management Division) regarding
reopening of Anganwadi Centres. The Government of India, Ministry               F
of Home Affairs, issued an O.M. dated 22.10.2020 stating that the
Ministry of Women and Child Development may take decision after
consultation with concerned States/Union Territories for reopening of
Anganwadi centres which are out of the containment zone taking
appropriate measures related to health and safety.                              G
     22. The Government of India, Ministry of Women and Child
Development issued a guidance note on 11.11.2020 on operation of
Anganwadi services, which note is to the following effect: -

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


A               “F. No. PA/85/2020-CPMU C No 85941
                         Government of India
               Ministry of Women & Child Development
                                              Jeevan Vihar Building,
                                                 New Delhi - 110001
B                                               11th November, 2020
      To
        The Principal Secretaries/Secretaries,
      Department of Social Welfare/Women & Child
      Development of all States/UTs
C     Subject: Guidance note on operations of
      Anganwadi Services — regarding,
      Sir/Madam,
         Under-nutrition is one of the leading causes of morbidity and
      mortality in children under the age of 5 years. Delivery of
D     preventive services to mitigate the impact of the pandemic on the
      nutrition is well recognized. Provision of essential services like
      Growth Monitoring Referral, and supplementary nutrition etc. to
      ensure the health and well- being of the pregnant ladies, lactating
      mothers and children below 5 years is most important. In view of
      Covid l9 pandemic globally, it is imperative to ensure, that the
E     beneficiaries do not suffer and remain away from Anganwadi
      services.
          2. Hence, Anganwadi Services may be resumed outside
      containment zones with immediate effect, complying health and
      safety protocols. Further, cleanliness, Hygiene and Sanitization
F     may be ensured in and around the premises of Anganwadi Center,
      use of mask/face covers shall be mandatory for everyone
      visiting the Centre, including AWW and AWH. Also, frequent hand
      washing, and strict social distancing as per MoHFW guidelines
      must be followed at Anganwadi Centre.
G        3. Ministry of Women and Child Development has taken up
      the matter with Ministry of Home Affairs regarding reopening of
      AWCs. Ministry of Home Affairs vide OM No. 40-6/2020/DM-
      1(A)/Part-2 dated 22nd October 2020 (copy enclosed) advised
      that AWCs may be opened outside the containment zones, by
H
       DIPIKA JAGATRAM SAHANI v. UNION OF INDIA                             223
                  [ASHOK BHUSHAN, J.]

      adhering to the Standard Operating Procedures (SOP) related to        A
      health and security measures in consultation with State/UTs.
         4. A guidance note for resuming Anganwadi Services is
      enclosed herewith. Based on the guidance note, States / UT
      Governments need to develop their own SOP for reopening AWC
      when the State/Union Territory Governments declare it safe            B
      for AWC to operate. All States/UTs are expected to comply
      with the COVID-19 related directions issued by Ministry
      of Home Affairs and Ministry of Health and Family Welfare,
      Government of India, from time to time.
         5. Therefore, it is requested that States/UTs may decide           C
      reopening of AWCs outside containment zones while adhering to
      health and safety protocols as per the guidelines of MOHFW.
                                                        Yours sincerely,

                                                                            D

                                                 Executive Director,
                                           POSHAN Abhiyan, MWCD
Copy to:
PS to Minister,                                                             E
PS to MoS,
Secretary MoHFW and Secretary MHA”
      23. It is also relevant to notice that in the month of September,
2020, the National Human Rights Commission issued an advisory on
Right to food security and nutrition in context of Covid-19. The National
Human Rights Commission issued following Advisory dated 28.09.2020          F
Related to Nutrition: -
      “I. Implementation of Anganwadi Services
       i.   Recognise ICDS as an ESSENTIAL SERVICE and
            reopen anganwadi centres immediately to provide crucial         G
            growth monitoring, immunization, cooked meal, and
            nutritional counselling services, with adequate safety
            protocols to prevent COVID infection for anganwadi
            workers, women and children.

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


A             ii.   Ensure that sufficient quantity of dry rations (food grains,
                    eggs, milk powder and medicines, etc.) and take- home
                    rations are made available to children under three years, as
                    well as pregnant and lactating women.”
             24. After issuing a guidance note on 11.11.2020, several States
B     have taken decision to open Anganwadi Centres. The State of Meghalaya
      opened its Anganwadi Centres w.e.f. 03.12.2020. The State of Punjab
      opened its Anganwadi Centres w.e.f. 09.12.2020, the State of Rajasthan
      also opened its Anganwadi Centres w.e.f. 07.12.2020.
             25.Even before the order dated 11.11.2020, the State of
C     Chhattisgarh had opened 12,593 Anganwadi Centres in the State w.e.f.
      September, 2020. It is relevant to notice the affidavit filed on behalf of
      the State of Arunachal Pradesh. The State of Arunachal Pradesh issued
      der dated 18.06.2020 titled “Strategy for opening of Anganwadi Centres”
      and under the aforesaid strategies, Anganwadi Centres were to be
      reopened in two phases, first Phase-I from 15.07.2020 and phase-II
D     from 01.08.2020. Standard Operating Procedure dated 18.06.2020 was
      issued by the Government of Arunachal Pradesh, Ministry of Women
      and Child Development department.
            26. On the other hand, there are few States who have taken
      decision not to reopen Anganwadi Centres. We may notice the counter
E     affidavit filed on behalf of the State of Assam. In the affidavit, it has
      been stated that Anganwadi Centres will be open as and when the
      permission will be accorded by the Central Government in this regard.
      The State of Assam is under the impression that the order issued by
      the Ministry of Home Affairs dated 25.11.2020, provides for not opening
F     of the Centres. The order dated 25.11.2020 of Government of India,
      Ministry of Home Affairs, filed as Annexure-R1. Paragraph 16 which
      contains the heading “protection of Vulnerable persons” is as follows: -
               “16. Persons above 65 years of age, persons with co-
            morbidities, pregnant women, and children below the age of 10
G           years are advised to stay at home, except for essential and
            health purposes.”
            27. The paragraph 16 as noted above does not in any manner
      create any prohibition in opening of Anganwadi Centres. The above
      guidelines have been issued keeping in view the protection of vulnerable
      persons and which requires pregnant women, children below the age of
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      DIPIKA JAGATRAM SAHANI v. UNION OF INDIA                            225
                 [ASHOK BHUSHAN, J.]

10 years to stay at home except for essential and health purposes.        A
Services which are being provided by Anganwadi Centres are essential
services.
      28. We have already noticed the guidance note dated 11.11.2020
issued by Government of India which permits reopening of Anganwadi
Centres with consultation of States/Union Territories. State of Assam     B
was thus fully empowered to take the decision regarding reopening of
Anganwadi Centres and its stand taken in paragraph 7 to the following
effect- “All Anganwadi Centres will be opened as and when the
permission is accorded by the Central Government in this regard” is not
correct. The State could have very well taken a decision for
reopening the Anganwadi Centres in view of the guidance note issued       C
by the Government of India dated 11.11.2020.
       29. The State of Maharashtra in its affidavit has stated that
the Disaster Management department has restricted the reopening of
Anganwadi Centres till the control of Covid-19 pandemic in the State
and has approved the continuation of arrangement of supplies of Take      D
Home Rations at the doorsteps of the beneficiaries. Some of the
States have also in their affidavits stated that Anganwadi Centres be
closed till particular date like State of Tripura states that Anganwadi
Centres are to be closed till 31.12.2020, State of Mizoram states that
Anganwadi Centres be closed till 10.01.2021. Some of the States/          E
Union Territories have stated that the approval from the States/
Union Territories are awaited for reopening of Anganwadi Centres.
       30. All the States/Union Territories in their affidavits have
given details of providing Take Home Rations(THR) as per guidelines
and requirement contained in Act, 2013. Different cereals and other       F
items have been referred to in the affidavits filed by the States/Union
Territories which according to them complies with nutrition standards.
Most of the States/Union Territories have mentioned cereals as Take
Home Ration for the beneficiaries from 3 to 6 years of age. The State
of Maharashtra claim to supply Wheat/Rice-62 grams, Masoor Dal-
28 grams, Chana-30 grams, Mirchi Powder-4 grams, Turmeric Powder-         G
4 grams, Salt-8 grams, Soybean Oil-10 gram per day per beneficiary.
      31. The State of Bihar for a few months has not supplied Take
Home Rations rather it has directed for crediting the amount equivalent
to Take Home Ration to the Bank Account of the beneficiaries or
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226             SUPREME COURT REPORTS                           [2021] 1 S.C.R.


A     their parents. The State of Bihar, however, has started distributing
      cereals as Home Take Rations by orders issued by the State of Bihar in
      April, 2020. The State of Gujarat in its affidavit has stated that it is
      providing to Children (below 6 years of Age), 8 packets of Balshakti
      (500gm Packets) Take Home Ration per month to match up nutritional
      requirements. Take Home Ration is being distributed through the medium
B
      of Gujarat Cooperative Milk Marketing Federation. It further states that
      since June 2020, the ready to eat nutritional traditional sweet (Sukhadi)
      1-Kilogram per week in lieu of hot cooked meals is provided to 3 to 6
      years’ children. We are of the view that the State ought to have included
      certain cereals in Take Home Ration instead of providing only
C     ‘Balshakti’ and ‘Sukhadi’. The nutritional standard as provided in
      Schedule II of Act, 2013, has to be met by all States and Union Territories.
             32. There is no doubt that the Central Government as well as all
      the States and Union Territories have issued necessary guidelines for
      implementing statutory requirements of Act, 2013 and for meeting
D     the nutritional standards. The big question however is as to what extent
      the implementation is on the ground and the benefits are extended to
      beneficiaries as required by the Statute. The beneficiaries which
      belong to vulnerable class are not equipped with suitable mechanisms
      to raise issues of non-implementation and not providing food articles
      complying with nutritional standards as provided in the Statute.
E
              33. It is the obligation of the State to ensure that pregnant women,
      lactating mothers and children in the age of 3 to 6 years and children
      who suffer from malnutrition are provided their dues. The State has to
      provide an appropriate mechanism for supervision and check, child
      development officers and other district level officers who are entrusted
F     to monitor the functioning of Anganwadi Centres have to be extra
      vigilant and take steps so that no beneficiary is denied its dues. All
      States/Union Territories should evolve an appropriate mechanism for
      supervision so that dues are received by beneficiaries for whom schemes
      are in place. It is for the State to secure health to its citizens as its
G     primary duty. No doubt, the Government is rendering this obligation
      through various schemes, such as, opening of Aanganwadis, providing
      nutritious food through Aanganwadis, Mid-day Meal Scheme, etc., but
      in order to make it meaningful, it has to be within the reach of its people,
      as far as possible, and the Government must supply the nutritious food in
      real sense bearing in mind the provisions of National Food Security Act.
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       DIPIKA JAGATRAM SAHANI v. UNION OF INDIA                               227
                  [ASHOK BHUSHAN, J.]

       34. The Government of India by its guidance note permitted             A
all the States and Union Territories to open Anganwadi Centres, it is
the obligation of the States/Union Territories to take decision for opening
of Anganwadi Centres. As noted above, several States/Union
Territories have already started running their Anganwadi Centres which
is a positive step towards achievement of the goal for which Anganwadi
                                                                              B
Centres were envisaged. We are of the view that unless there are any
specific reasons for not opening of Anganwadi Centres, all Anganwadi
Centres beyond the containment zones should be made functional by all
the States/Union Territories at an early date. All States may review the
situation and take positive decisions on or before 31.01.2021 and unless
there are specific decisions taken by the State Disaster Management           C
Authority of a particular State, Anganwadi Centres be opened on or
before 31.01.2021.
       35. In view of the above discussions, we allow this writ petition
with following directions: -
      I)    As per guidance note dated 11.11.2020 issued by Government        D
            of India, Ministry of Women and Child Development, all
            States/Union Territories who have not yet opened Anganwadi
            Centres shall take a decision to open Anganwadi
            Centres on or before 31.01.2021 situated outside the
            containment zone.                                                 E
      II)   The decision for not opening Anganwadi Centres in any State
            Union Territories or any part of State/Union Territory shall
            be taken only after the State Disaster Management
            Authority of the State direct for not opening of Anganwadi
            Centres in State/particular area of the State situated            F
            outside containment zone.
      III) Anganwadi Centres situated in the containment zone shall
           not be opened till the containment continues.
      IV) All States/Union Territories shall ensure that nutritional
          standards as provided in Schedule II of National Food               G
          Security Act, 2013, reproduced herein above in para 13 is
          fulfilled by providing nutritional support to pregnant women,
          lactating mothers, nutritional support to children who suffer
          from malnutrition.
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228              SUPREME COURT REPORTS                      [2021] 1 S.C.R.


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


      Devika Gujral                                        Writ petition allowed.


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