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Lessons from the Supreme Court on Cooperative Federalism

A combined effort by both the Centre and the states is necessary to implement Acts, especially welfare schemes like the National Food Security Act, to ensure people have a better quality of life.

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The Supreme Court. Credit PTI

Though the Indian Constitution divides legislative and executive powers between the Union and the states, the former does not have an exclusive administrative machinery for executing its own laws. Therefore, Article 256 provides that it is the duty of every state to enforce Union laws as applicable in that state. The executive of the Union has the power to give directions to the state government to ensure due compliance with the above duty.

Article 256 does not empower the Union to interfere in any matter pertaining to the exclusive concern of the state.   The full potential of Article 256 has not yet been tested, although the sanction behind the power of the Union to give directions is found in Article 365. Under this provision, where any State has failed to comply with or to give effect to any direction given in the exercise of executive power under any of the provisions of the Constitution, it shall be lawful for the President to hold that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provision of the Constitution – a prerequisite to impose President’s rule under Article 356, in the State.

On Friday, as the Supreme Court bench of Justices Madan B. Lokur and N.V. Ramana, agonised over the alternatives before the Centre, to discipline rogue states, to enforce its laws, it did not refer to Article 365, probably because it found  it an extreme response, which could be justified, after exhausting all the alternative remedies. Nevertheless, Justice Lokur, who described Article 256 as a “forgotten provision”, found to his dismay that the Centre did not use any of such remedies, to ensure the implementation of one of its preeminent laws – the National Food Security Act, 2013 (NFSA) – in the face of complete indifference by the states to do so. Clearly, pleading helplessness by the Centre, on the ground that the states are disinclined to enforce a law made by parliament, was not envisaged by the framers.

The NFS Act was enacted by the UPA Government 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. Its success depends on how speedily and sincerely the states set up the authorities and bodies, and make them functional, as mandated by the act.

Swaraj Abhiyan, an NGO, before it converted itself to a political party, Swaraj India, filed a public interest litigation in the Supreme Court in 2015, drawing its attention to the non-implementation of the act’s provisions by the state governments, and seeking the court’s directives to the central and state governments, to enforce the act in letter and spirit.

The non-existent authorities

Section 14 of the act requires that every state government shall put in place an internal grievance redressal mechanism which may include call centres, help lines, designation of nodal officers, or such other mechanism as may be prescribed.

Section 15 provides that the state government shall appoint or designate, for each district, an officer to be the District Grievance Redressal Officer (DGRO) for expeditious and effective redressal of grievances of the aggrieved persons in matters relating to distribution of entitled food grains or meals.

Section 16 provides that every state government shall constitute a state food commission for the purpose of monitoring and review of implementation of the act.

Section 28 provides that every local authority, or any other authority or body, as may be authorised by the state government, shall conduct or cause to be conducted periodic social audits on the functioning of fair price shops, Targeted Public Distribution System (TPDS) and other welfare schemes, and to cause to publicise its findings and take necessary action, in such manner as may be prescribed by the state government.

Section 29 provides that for ensuring transparency and proper functioning of the TPDS and accountability of the functionaries in such system, every state government shall set up vigilance committees, at the state, district, block and fair price shop levels consisting of such persons, as may be prescribed by the state government giving  due representation to the local authorities, the scheduled castes, the scheduled tribes, women and destitute persons or persons with disability.

During the hearing of the case, the Supreme Court found that no rules had been framed, as required by Section 15, nor had any qualifications been prescribed for the appointment of DGROs. All that had been done by the state governments was that some officials were given additional responsibility as a DGROs. As these officials were in-charge of the implementation of the act, they in principle, stood disqualified from addressing grievances, because of the conflict of interest.

The Supreme Court disapproved of some state governments appointing consumer disputes redressal commission as the State Food Commission under Section 16 of the Act, as it is not in consonance with the letter and spirit of the Act.

“It is not as if any statutory body or authority could be given additional charge as a State Food Commission (SFC) even though the members of that statutory body or authority did not meet the requirements of Section 16 of the NFS Act,” Justice Lokur said.

He reasoned that the qualifications required for the Consumer Disputes Redressal Commission (CDRC) and the SFC are quite different. While CDRC performs judicial or quasi-judicial functions, the SFC is expected to perform administrative and quasi-judicial functions.

The Court observed that there might be several practical difficulties in actual working of one statutory commission performing two disparate functions under two different statutes.

“This is more than likely to compromise the efficiency of that statutory commission or body with the result that the beneficiaries of the multifarious functions of the statutory commission or body would suffer at both ends.  This is hardly conducive to good administration and reduces the importance of a basic right to wholesome and nutritious food particularly for women and children”, he held in his judgment.

The Supreme Court further found to its dismay that despite passage of time, and the State Governments framing necessary rules, and the Centre preparing and circulating the Model Rules to the State Governments, 10 States have not set up SFCs.  They are Madhya Pradesh, Karnataka, Andhra Pradesh, Telengana, Maharashtra, Gujarat, Jharkhand, Bihar, Haryana and Chhattisgarh.

The case of Haryana

Justice Lokur’s judgment records that while Haryana constituted its SFC, it did not provide it with any infrastructure, office space, or budget, and was apparently requested not to perform any function, leaving it with no option, but to approach the Punjab and Haryana high court for relief.

Indicting Haryana, which told the Court that there is hardly any work for the SFC, Justice Lokur held that with such an attitude, it is very unlikely that any progress would ever be made in food security.  “One can only feel sorry for the people in Haryana”, Justice Lokur observed.

Other states

The Supreme Court during the hearing of the case had summoned the Chief Secretaries of these 10 states, most of whom appeared before it on April 26. While Madhya Pradesh, Andhra Pradesh admitted that appointment of SFCs were not made, Telengana, Gujarat, Jharkhand and Chattisgarh disclosed that appointments have been made.  Maharashtra disclosed that it could not find a member belonging to any scheduled caste or scheduled tribe, as required under the Act for the appointment. Bihar disclosed that appointments were made, but there were still two vacancies. The judgment shows inconsistency between Karnataka’s claim (as informed on April 27)  that SFC had been constituted, and its chief secretary’s affidavit which states that the appointments have not yet been made.

“This compliance with the NFS Act is pathetic to say the least,” Justice Lokur lamented in his judgment.

“It is a pity that legislation enacted by parliament for the benefit of the people should be kept on the back burner by some of the state governments before us,” was another broadside from him.

If the state governments and union territories (UTs) decide that they do not wish to abide by a law enacted by parliament for the benefit of the people, perhaps some other solution may have to be found, but we hope that no state government or UT disregards the will of parliament, the judgment, authored by Justice Lokur reads.

Specific directions

Justice Lokur has given five specific directions, to which his brother, Justice Ramana has expressed his agreement in his separate judgment.

First, the Secretary in the ministry of consumer affairs, food and public distribution (MoCAFPD) of the Central government should convene one or more meetings before August 31 of the concerned secretaries of all the state governments and UTs to find ways and means to effectively implement the NFS Act.

Secondly, the secretary in the MoCAFPD, has been asked to emphatically request and commend every state and UT to notify appropriate rules for a grievance redressal mechanism under the Act, and designate appropriate and independent officials as the DGROs within a fixed time frame, within this year, and to give it adequate publicity.

Third and fourth, the Secretary in the MoCAFPD has to take similar measures to ensure every State establishes and makes fully functional a SFC, and a Vigilance Committee before the end of the year.   Justice Lokur reminded that the Act specifies a very large number of functions that a SFC has to perform.

Lastly, the court has asked the secretary in the MoCAFPD to establish social audit machinery, postulated by Section 28 of the Act, at the earliest, [which is already in place in so far as the Mahatma Gandhi National Rural Employment Guarantee Act is concerned], with appropriate modifications.

Lessons on cooperative federalism

Justice Ramana, in his separate and concurring judgment, observed that the Act elaborates on the nature of federalism as a functional arrangement for cooperative action. Acknowledging that India has divided sovereignty in the form of Centre on the one hand and states on the other, Justice Ramana explained that these institutions meet and interact at various levels to achieve the cherished constitutional goal of cooperative federalism. He added that a combined effort by both the Centre and the states is necessary to implement the Act in the drought affected areas so as to save people from abject poverty and poor quality of life.

NFSA may indeed be a test case, in which the Supreme Court has demonstrated why the Centre is justified in using Article 256 to its full potential.