Ruling that the Delhi government cannot implement its proposed scheme for home delivery of ration in its present form, the Delhi High Court Thursday concurred with the view taken by the Lt-Governor that the decision would require prior approval of the central government.
“Since the Parliament has enacted the NFSA, which specifically requires that schemes introduced by the Central or state government shall be in such area and manner as may be prescribed by the Central government, the GNCTD is bound to implement the proposed doorstep delivery scheme only in the manner that the Central government may prescribe, and not otherwise,” said the division bench of acting Chief Justice Vipin Sanghi and Justice Jasmeet Singh in its ruling on a petition challenging the AAP government’s Ghar Ghar Ration Yojna.
On the Delhi Chief Minister’s conclusion that the scheme attained finality when it was approved by his government, despite objections of the LG, the court said, “To us, it appears that the misunderstanding was not on the part of the Lieutenant Governor, but on the part of the Chief Minister himself. Every Union Territory is administered by the President, acting through an Administrator. In respect of the NCT of Delhi, the administrator appointed under Article 239 is designated as the LG.”
It further said the Chief Minister should place the matter before the council of ministers and consider the proposed scheme in light of the objections raised by the Center last year and observations made by the court in the verdict delivered Thursday.
Observing that the scheme cannot be implemented and rolled out by the government since the LG has expressed his difference of opinion and required that the same be referred for his decision to the President, the court also said the scheme would necessarily have to be rolled out in the name of the Lieutenant Governor, while recording his approval. In case of any difference of opinion between the Council of Ministers and the LG, the matter has to be placed before the President for his decision, it added.
“The GNCTD shall be bound by whatever decision is taken by the President of India in the matter,” said the court, ruling that the Delhi cabinet’s decision to roll out the scheme is not in accordance with the constitutional scheme.
The court said though there may be no necessity for the decision of the council of ministers requiring approval of the LG, there is an obligation for the CM to communicate the cabinet decision to the LG: “And, in case, there is a difference of opinion, or disapproval, then the matter must be referred to the President under the proviso to Article 239AA(4). In our view, the Chief Minister was not correct in concluding that the approval of the Central government is neither mandated, nor necessary, under Section 12(2)(h) of the NFSA.”
The bench also said that the Council of Ministers of the Delhi government “does not appear” to have answered this issue raised by the LG in 2018 and did not answer how “replacement of one set of human intervention with another” would improve ration distribution. It also said that “executive powers of the Council of Ministers, headed by the Chief Minister, is not unfettered”.
However, the court said the government is entitled to frame a scheme for doorstep delivery of ration but the “same has to be done by the GNCTD from its own resources in compliance with prevailing laws”. The scheme at present does not comply with provisions of National Food Security Act and Targeted Public Distribution System Order, 2015, it ruled further.
It also said that the government cannot proceed to implement the scheme without addressing the concerns of the existing FPS owners “with regard to their financial viability, which is statutorily protected”.
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Commenting on the government’s allegation of corruption in the existing system, the court said it appears from the correspondence addressed by the Center to the Delhi government that the latter has not discharged its statutory obligations of maintaining vigilance over functioning of the FPS System.
The court passed the verdict in petitions filed by the Delhi Sarkari Ration Dealers Union and Delhi Ration Dealers Union against the scheme and tenders issued as part of the process to implement it. The court by its verdict also quashed the tenders.
The scheme was initially floated in 2018 but could not be implemented due to a difference of opinion between the government and LG. Official sources said the Delhi government will thoroughly study the order before considering future course of action.
Queuing up not against right to dignity
NGO Bandhua Mukti Morcha, which had sought impleadment in the case to support the government scheme, through its counsel Talha A Rahman had argued that requiring a person to stand in queue at the ration shop for receiving, what the law regards as his or her entitlement , is against the right to dignity and privacy. The division bench said that it is “only civil” that persons who desire to obtain or buy anything from an outlet should queue up.
“It does not offend the right to dignity and privacy of any person, merely because the person may be required to queue up at the outlet. The outlet could be for anything, or for any service. People queue up to buy medicines from a medical store; to buy milk at the milk booth; bus, train and airline tickets at bus stations, railway stations and airports; to buy cinema tickets at cinema houses; to buy tickets for sporting and other entertainment events at the venues, so on and so forth,” said the court.
The case
The Centre, while supporting the petitions, had argued that the tenders and scheme are in contravention of the NFSA. The Delhi government cannot tinker with the architecture of the PDS and the Fair Price Shops are the center of distribution under the scheme, it contended.
“The state governments are at liberty to provide any other welfare-based entitlements, without disturbing or destroying the mandate of the NFSA,” Additional Solicitor General Aishwarya Bhati had argued.
The LG in response had argued that the scheme only amounted to replacing one set of human intervention with another and may not the diversion of ration and corruption. “Without resolving the difference of opinion, the GNCTD could not have proceeded to implement the door-to-door delivery scheme, while interfering with the architecture to implement TPDS under the NFSA,” L-G’s counsel DP Singh had argued.
Defending its scheme, the Delhi government had argued that “politics has taken over public interest” and termed the objections against it a “camouflage” and “egotistic”. Terming it a progressive scheme, Senior Advocate Abhishek Manu Singhvi appearing for the government had said there was no explicit prohibition against it under the NFSA. “The scheme is optional in nature, and the people may opt for either home delivery of ration, or they may take ration from FPS,” the government had told the court
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