While remarkably taking the most commendable step in the right direction, the Orissa High Court has in a most robust, rational, remarkable, realistic and recent judgment titled Mantu Das vs Union of India and Others in W.P.(C) No. 12966 of 2023 and cited in 2023 LiveLaw (Ori) 64 that was pronounced as recently as on May 18, 2023 has cautioned both the Union and State Governments that they must not deny benefits of different welfare schemes to the needy people belonging to vulnerable sections only because they do not possess identity proof like Aadhaar Card or mobile number. It must be noted that while taking note of the unfortunate happenings in the Danagadi Block in Jajpur district that was subject matter of the PIL, the Court reminded both the State and Union Governments that the welfare schemes are meant for fulfilling the needs of most vulnerable and poor sections of the society who can never be excluded from the list of beneficiaries on the ground of not having an Aadhaar card or mobile number. No denying it!

At the very outset, this learned, laudable, landmark and latest judgment authored by the Division Bench of Orissa High Court comprising of The Hon’ble Mr Chief Justice Dr S Muralidhar and Hon’ble Mr Justice Gourishankar Satapathy sets the ball in motion by first and foremost putting forth in para 1 that:
Pursuant to the order passed by this Court on 1st May, 2023 affidavits have been filed by the Collector, Jajpur (dated 15th May, 2023), by the Commissioner-cum-Secretary to Government, Women and Child Development (WCD) Department, Odisha (dated 13th May, 2023), by the Chief District Medical and Public Health Officer (CDM & PHO), Jajpur (dated 15th May, 2023) and by the Deputy Secretary, Ministry of WCD, Government of India (dated 18th May, 2023). Apart from Mr. Pandey, Secretary, Ministry of WCD, Government of India, the deponents of the other three affidavits have also participated online in today’s hearing.

As we see, the Division Bench mentions in para 2 that:
As regards the 11 children whose instances were cited in the petition, the Collector, Jajpur has in his affidavit given a break-up which confirms that 4 of the 11 children were severely and acutely malnourished (SAM). 3 of the children were moderately acutely malnourished (MAM). One child, Subhalaxmi Tarai, who was suffering from cerebral palsy and secondary malnutrition had died. The remaining children are stated to be ‘normal’ children i.e. not falling within the above categories of SAM or MAM.

Quite revealingly, the Division Bench points out in para 3 that:
The affidavit of the Collector, Jajpur suggests that Subhalaxmi Tarai had been abandoned by her family. She was found dead on 20th April, 2023. Prior thereto, the Accredited Social health Activist (ASHA) of the area is stated to have visited the child on two dates in January and one date in February, 2023. The Rashtriya Bal Swasthya Karyakrama (RBSK) team is also said to have visited her. The finding that as she was suffering from cerebral palsy, she could neither move nor inform the neighbours of the plight is a pointer to the fact that there could be a child in need of attention, who is unable to get it despite the existence of a plethora of schemes both at the level of the Central Government and the State Government which will be referred to hereafter.

It is then mentioned in para 4 that:
As regards the death of another child, Arjun Hembram, whose name, according to the affidavit of the Collector, ‘does not find mention’ in the records of the Mobile Health Team (MHT), it is a pointer to the fact that there could still be families and children, who are not covered by the schemes. The fact is that these are all children in the age group of 0 to 6 years and belong to tribal community and the poorest sections of the society.

As it turned out, the Division Bench then states in para 5 that:
The affidavit of the Commissioner-cum-Secretary to Government, WCD Department, Odisha sets out the process of identification of children as falling under the SAM and MAM category and the system of referral to the Nutrition Rehabilitation Centers (NRCs) which, as far as Jajpur district is concerned, are located at the Jajpur Road and Sukinda taluks. The said affidavit further states that there are field level workers like Anganwadi Workers (AWWs), the Auxiliary Nurse Midwife (ANM) and the ASHA, who are trained in infant and young child feeding practices. There is a listing of the programmes that are currently stated to be in operation including the Janani Sishu Surakshya Karyakram (JSSK), the Social Awareness and Action for Neutralize Pneumonia Successfully (SAANS) and Sishu Abong Matru Mrutyura Purna Nirakarana Abhiyan (SAMMPurNA) apart from the RBSK. There are also said to be Village Health Sanitation and Nutrition Days (VHSND) where regular check ups are supposed to be undertaken of the women and children for provision of free drugs, lab tests, referral transportation and so on. Then there is the PM Poshan Mid-Day Meal Programme implemented by the Department of School and Mass Education (S & ME) Department of the Government of Odisha and which is expected to improve the nutritional status of the children in Classes-I to VIII in government local bodies and government aided schools.

To put things in perspective, the Division Bench envisages in para 7 that:
At the outset, this Court would like to observe that while discussing issues relating to health of persons and of children in particular, presenting statistics in terms of percentages would hide more than they reveal about the ground situation. Perhaps human lives and human health should, in the present context, not be discussed in terms of percentages but by acknowledging that they are actual persons. To have in Odisha in 2023 nearly 30,000 SAM and 86,000 MAM children is a cause for alarm not just for the State of Odisha but for the Government of India as well. If one were to understand the national percentages of 2.26% SAM and 4.75% MAM on a 1.8 billion population, and translate them into actual numbers, the severity of problem would become evident.

Do note, the Division Bench observes in para 8 that:
Mr. Pandey, the Secretary, WCD, Government of India explained in some detail how the schemes, starting from the Integrated Child Development Scheme (ICDS) which commenced in 1975, were intended to improve the health of children and deal with the problem of malnourishment. What a petition like this, and report of the CDMO and the Collector, Jajpur tells us is that there are obvious gaps in the implementation of these various schemes and that the benefit of the schemes may not be reaching the intended beneficiaries.

Quite worryingly, the Division Bench then lays bare in para 9 that:
One fact that emerged in course of today’s deliberations was that even in a district like Jajpur in Odisha the coverage of the population by public distribution system (PDS) under the National Food Security Act (NFSA) is not ‘universal’. Today’s discussion threw up expressions like ‘allocation’ and ‘vacancies’ pointing to the fact that there might be sections of our society, and this includes the most vulnerable, who may not be covered under the PDS system. Since the distribution of nutritional supplements and rations happens only through the PDS, there is every likelihood that a child or an expectant mother in a family in need of such supplements and rations may not receive them. This, therefore, points to a larger problem of the coverage attempted to be achieved by the NFSA. This also shows that the absence of pending ‘applications’ for coverage under the PDS in a particular district may not explain how many people there are in actual need of such rations and supplements for their children, who may be either in the SAM or MAM categories. What compounds this issue further is that all the statistics are projected on the basis of 2011 census and not on the actual figures on the ground as of 2023. Therefore, the number of persons ‘excluded’ from the coverage of all the schemes could be much larger than what is projected in these affidavits. This is a matter for reflection both by the Government of India and the State of Odisha when they sit down to address the issue of gaps in the implementation of the schemes.

Most commendably, the Division Bench observes in para 10 that:
The Court impressed upon Mr. Pandey that at the level of Government of India, it has to be ensured that the coverage under the schemes is increased progressively year after year and that can only happen if there are systems put in place that incentivise ‘inclusion’ rather than ‘exclusion’. For e.g., the failure to possess an Aadhaar Card or a mobile phone or a proper ‘identity’ paper of a particular kind can result in a child or a family being denied the basic support in terms of food and supplements which are so essential for basic survival. The absence of these documents cannot become obstacles to availing the benefits under the schemes.

Most forthrightly, the Division Bench mandates in para 14 that:
The Court takes on board the statement made in the affidavit of the Collector, Jajpur that no person in Jajpur district in Odisha has been denied any ration only because such person does not possess an Aadhaar card or a mobile phone. The Secretary, WCD Department, Odisha confirmed that this was the position elsewhere in Odisha too. The Court is of the considered view that given the unfortunate happenings in the Danagadi Block in Jajpur district spoken of in the petition, this needs to be made abundantly clear at both the State level as well as the National level since this welfare schemes are meant to cater to the needs of the most vulnerable and poor sections of our society who cannot be excluded on any ground including the lack of an Aadhaar Card or a mobile phone. The fact is that there are still several poor and vulnerable individuals, in the State of Odisha and in the country, who may not possess either.

Of course, the Division Bench then rightly directs in para 19 that:
The Court would, therefore, urge that the Secretaries in the Departments of SME, WCD, Health and Family Welfare, Tribal Welfare and Food and Civil Supplies hold a review meeting within one month from today. The Secretaries of the Odisha State Commission for Women, Odisha Food Commission and the Odisha Child Rights Commission should also participate in such meeting. The Chief Secretary, Government of Odisha will convene the said meeting in the next one month in order to draw up an action plan to achieve the target of complete absence of SAM children in Odisha and a reduction by more than half of MAM children in Odisha by the end of 2023. The minutes of the meeting be placed before the Court with an affidavit before the next date. The compliance with the directions issued in this order also be indicated in the said affidavit.

For sake of clarity, the Division Bench clarifies in para 20 that:
While the participation of the Secretary, WCD Ministry, Government of India, the Commissioner-cum-Secretary, WCD Department, Government of Odisha and the Collector and the CDMO, Jajpur in today’s hearing has been of great assistance, the Court would like to emphasize that PILs like the present one are not to be viewed as ‘adversarial’ but as an opportunity for all to work together to find a workable solution to a problem that is acknowledged.

Finally, the Division Bench concludes by directing in para 21 that:
List on 1st August, 2023. A copy of this order be communicated to the Chief Secretary, Government of Odisha forthwith by the Registry for necessary action.

On the whole, the Orissa High Court has made it indubitably clear that people can’t be denied the benefits of welfare schemes only because they don’t possess Aadhaar Card or mobile number. It is a very progressive, pragmatic, powerful and persuasive judgment which must be definitely implemented in letter and spirit. No denying it!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh.