Back
2020 Supreme(Pat) 445
IN THE HIGH COURT OF JUDICATURE AT PATNA
SANJAY KAROL, S. KUMAR, JJ.
Parul Prasad – Petitioner
Versus
The State of Bihar through the Chief Secretary and Others – Respondents
Civil Writ Jurisdiction Case No. 5609 of 2020
Decided On : 07-09-2020
Advocate Appeared:
For the Respondents: Mr. K.N. Singh, Mr. S.D. Sanjay, Mr. P.N. Shahi, Mr. Patanjali Rishi, Mr. Ratnesh Kumar.
Headnote:
Constitution of India – Articles 21 and 51-A – Disaster Management Act, 2005 – Right of NITI Aayog to direct Government to engage civil society organizations in relief operations during times of crisis and disaster management – An important evolutionary change from past, National Institution for Transforming India (NITI Aayog) acts as quintessential platform of Government of India to bring States to act together in national interest, and thereby fosters Cooperative Federalism – Role of NITI Aayog is that of think tank limited to giving directions and policy inputs which means that such directions/recommendations can be acceptable to Central Government or State Government or may not be acceptable to Central Government or State Government – NITI Aayog is premier policy 'Think Tank' of Government of India providing Government with both directional and policy inputs as well as technical advice on issues – However, guidelines/ communication issued by NITI Aayog, specifically in instant case, was not backed by any statutory authority – There is nothing in letter of NITI Aayog dated March 31, 2020, to show that it comes in exercise of a statutory authority vested in NITI Aayog – State is free to formulate their own policy with respect to engagement of CSOs and NGOs. (Paras 20, 21, 23, 27 and 29)
Constitution of India – Articles 21 and 51-A – Disaster Management Act, 2005 – Section 46 – Right of civil society organizations to be involved in relief operations during times of crisis and disaster management – During pendency of this PIL, State of Bihar suffered from flooding of Kosi river, causing devastation in ten districts of State – For relief operations in flood-hit areas, State disallowed direct relief operations by CSOs and NGOs in flood-hit areas – Every person has a right to receive effective help which ensures to them a right to life and livelihood guaranteed under Article 21 of Constitution – This includes right to food and other essentials – It is a matter of significance that a continued relationship of mutual trust exists between the State and these organizations in providing help to the needy – Role of civil Society in helping vulnerable groups and persons in need cannot be undermined – International norms can be enforced as part of domestic law where domestic law is silent on the issue when they correspond to fundamental rights of citizens under Constitution – Concept of governance encompasses decision-making, policy-making and implementation processes in Society – Good governance directly flows from this concept of governance and consists of ensuring rule of law, effectiveness and accountability in governance processes – In a democracy, good governance and public interest, can best be ensured only with involvement of various stakeholders and institutions, including participation of citizens and civil Society – Active citizen participation is hallmark of a vibrant democracy – Government-citizen partnership ensures accountability, transparency and welfare of people – State cannot act in isolation, more so when dealing with needs, welfare of people on ground and it comes in best interest of welfare of people to have a participative engagement in governance processes – In many situations, NGOs had a better position to reach out to needy than State itself and State ought to leverage such services of Civil Society – Role of Civil Society in a democracy cannot be understated to address miseries brought about by pandemic but coordinated effort of all functionaries is paramount – State directed to Actively interact and coordinate with NITI Aayog ensuring implementation of principles of good governance which, in turn, would enable citizens, achieve and fulfill Constitutional goal of social justice and to allow CSOs and NGOs to conduct relief operations, including in form of distribution of food and other materials, in the State and to Formulate SOPs, guidelines and codes of conduct to be adopted by State as well as CSOs and NGOs in their performance of welfare and relief operations – Accountability of all institutions is essential – This will also ensure meaningful participative governance. (Paras 15, 31, 32, 40, 48, 54, 55, 64, 65 and 68)
JUDGMENT :
SANJAY KAROL, J.
1. Two issues arise for consideration of this Court:
(1) Whether guidelines of the NITI Aayog to the Chief Secretaries of the State governments are in nature of advisory communication or did it make it mandatory on the State government to engage CSOs/NGOs/voluntary organizations into the realm of relief operations?
(2) Whether the civil society organizations have a right to be involved in relief operations during the times of crisis and disaster management, for ensuring the reach of relief to each needy person, especially in light of the Covid-19 response strategies issued by the international organizations, including the WHO and endorsed by the United Nations?
Facts and Procedural History
2. On April 22, 2020, Learned advocate Ms. Parul Prasad, by way of the present Public Interest Litigation, brought to this Court's notice the issue of the rights of Civil Society Organizations (CSOs) and Non-Government Organizations (NGOs) to aid and supplement the efforts of the State in providing relief to the needy during the pandemic.
3. The petitioner submitted that due to the sheer size and population of the State of Bihar, even with the State government's continued efforts, they were unable to reach each and every person in need. It was therefore in the interest of the rights of the persons in need that a large number of voluntary organizations, CSOs and NGOs who were genuinely interested in helping out and we're in an excellent position to assist the State government, be engaged in the relief operations.
4. The petitioner brought on record, two letters of the Chief Executive Officer of NITI Aayog, Amitabh Kant, dated March 30, 2020, and March 30, 2020, respectively, issued in his capacity as the Chairman of the empowered Committee under Disaster Management Act 2005. The first letter was addressed to about 800 recognized CSOs and NGOs from across the country, stressing their pivotal role in joining and assisting the local and State administrations in critical areas and requesting their coordinated efforts to work closely with the State authorities on the ground, especially in critical areas. The second letter was addressed to all State governments intimating them of the request to CSOs and NGOs and directing them to include these organizations in the relief operations conducted in the States.
5. The petitioner also brought on record another set of two letters dated April 8, 2020, and April 10, 2020, issued by NITI AYOG directing the States to appoint Nodal Officers at the State and District levels for coordination with CSOs and NGOs.
6. The petitioner also brought to this Court's notice, guidelines and directions issued by recognized international organizations such as the World Health Organization (WHO) and endorsed by the United Nations for strategic public health response for Covid-19 at the national and local levels. The Covid-19 Strategy Update dated April 14, 2020, by the WHO, while laying down the National Strategies to respond to Covid19 provides that each country must continue to implement a national action plan, which must include civil society organizations and national NGOs to extend the reach of public health and socioeconomic interventions.
7. The petitioner submitted that many NGOs and CSOs are willing to aid and assist the State Government, however, were working under Corporate Social Responsibility (CSR) or foreign funding, and hence were bound by the mandatory requirement of transparency and accountability on where are how the funds are being utilized. This required that their volunteers remain present where the goods and food were distributed and money was being utilized.
8. However, the district administration of Bihar refused lockdown travel passes to organizations and had requested them to deposit the relief goods at allotted stores, which would then be distributed by the State authorities. The petitioner also brought to the notice of this Court, news article dated Aril 15, 2020, pointing out the
