17, Jun 2023 | CJP Team

Hearing a PIL on malnourishment deaths in Jajpur district, noting high rates of hunger, the Court also directed that an inclusive approach must dictate the approach of the state; CJP Team analyses this in a Legal Resource.

This public interest litigation (PIL) was filed citing 11 such children, four of whom were either severely malnourished (SAM) or acutely malnourished (MAM) and was brought to the attention of the Court. After detailed affidavits and responses, the Court has not just underlined that government schemes to mitigate malnourishment and hunger should be inclusive but sought commitments from the Union of India (Women and Child Welfare Department-WCD) and state government that sincere efforts would be made to reduce these malaises and government schemes would be proactively made available. 

The Order was delivered on May 18, 2023 and the matter has been listed on August 1, 2023.

A public interest litigation filed before the court dealt with severe malnutrition of children that emerged in Danagadi Block in the district of Jaipur which brought to notice the non-coverage of PDS and NFSA. In its Order, the court observed that it is a fact that there are still several poor and vulnerable people in the country who do not possess an Aadhaar card or mobile number and these people cannot be excluded from availing the benefits of the welfare schemes which are meant to cater to the needs of the poorest and vulnerable sections of the society.

The court while suspecting the exclusion of some vulnerable people from PDS or NFSA directed the Department of Women and Child Development to ensure that the coverage of these schemes is increased progressively every year which can take place only when there are systems in place that incentivise ‘inclusion’ rather than ‘exclusion’.

Pertinently, the Court sharply observed that human lives and health of persons, especially children should not be measured as cold statistics and percentages alone 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.

Facts of the Case

One child, Subhalaxmi Tarai, who was suffering from cerebral palsy and secondary malnutrition had died. Records suggest that young Subhalaxmi Tarai had been abandoned by her family. She was found dead on April 20, 2023. According to the affidavit filed by the Collector of the district, thereto, ASHA health activist of the area is supposed 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 here is a “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,” observed the Court. (Paras 2, 3)

Another child who also died, Arjun Hembram, whose name, does not find mention’ in the records of the Mobile Health Team (MHT). “This,” observed the High Court, “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.” (Para 4)

The Court cautioned one Mr Pandey, Secretary to the Women & Child Development (WCD) ministry in the Union government that 

“…Human lives and health of persons, especially children should not be measured as cold statistics and percentages alone 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.”

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.” (Para 7) 

A fact that emerged in course of deliberations before the Odisha High Court during the hearing of the PIL, 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’. Discussions in the court 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. (Para 9)

In its judgement, “the Court impressed upon Mr. Pandey that at the level of the 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. (Para 10)

The Collector, Jajpur had stated in court on affidavit 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. (Para 11)

Responding to the Collector, Jajpur’s stand that families of Scheduled Tribes are “not willing to have their children treated at the public health facilities and it requires great persuasion and sometimes even coercion to get them to have their children, who are obviously in the SAM and MAM categories, treated at the CHCs or DHHs. This points to the fact that more active efforts would have to be made by the Tribal Welfare Department to spread awareness of the existence of the schemes and to convince the tribal populations that they are intended to positively benefit them and their children. (Para 15)

Commitments have been given by both Commissioner-cum-Secretary, WCD Department and the Collector, Jajpur have stated that concerted efforts will be made to ensure that there is a progressive reduction in the numbers of children falling in the SAM and MAM category in the immediate short term i.e. in the next two months and those efforts will be kept up to ensure that there is no child in the SAM category in the near future in Odisha. (Para 16).

Other districts of Odisha also suffer from chronic malnutrition. While this PIL has highlighted the alarming situation concerning SAM and MAM children in the Danagadi and Sukinda Blocks in Jajpur district in Odisha, figures made available by the GOI’s WCD Department it appears that in Keonjhar district there are 2,820 children in the SAM category that require immediate attention. 

The High Court through this Order therefore extended the scope of the present petition to include Keonjhar district as well and the Collector and the CDMO, Keonjhar have been directed to undertake visits to the Blocks in Keonjhar district in the next one month to ascertain for themselves the factual position regarding children in the SAM and MAM categories, but not stop at that. Just like the Collector, Jajpur has been able to identify the broader category of ‘vulnerable’ children and has undertaken to also identify the category of ‘vulnerable women’. Thereafter joint reports have to be submitted before the Court says the judgement also flagging the issue of ‘universal’ coverage under the PDS.

The High Court has also highlighted the fact that other departments like the apart from the  WCD Department are involved and SME Department, the Health and Family Welfare Department and the Tribal Welfare Department too should work together on the issue including also with Food and Civil Supplies, hold a review meeting within one month of the order, draw in participation of the Odisha Child Rights Commission too. (Para 17) 

Case Title: Mantu Das v. Union of India & Ors.

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