Nature of NITI Aayog’s directions & Scope of engagement of Civil Society Organizations in times of crisis: Patna HC discusses

Patna High Court: A Division bench of Sanjay Karol, CJ and S. Kumar, J., addressed two crucial issues revolving around the COVID-19 Pandemic.

Issues raised for consideration:

  • 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?
  • 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?

Advocate Parul Prasad by way of Public Interest Litigation brought to the Court’s notice the following issue:

“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.”

Petitioner submitted that due to the sheer size and population of the State of Bihar and continued government efforts, they were unable to reach each and every person in need.

Adding to the above, petitioner stated that in the interest of the rights of persons in need that a large number of voluntary organizations, CSOs and NGOs who were genuinely interested in helping out and were in an excellent position to assist the State Government, be engaged in the relief operations.

Petitioner prayed for the following reliefs:

  • Direction to the State of Bihar to follow directions and guidelines of the NITI Aayog for allowing representatives of the CSOs and NGOs to aid and supplement the efforts of the State in extending help for the needy during the pandemic.
  • Directions to permit the representatives of CSOs and NGOs to accompany State officials to ensure transparency in the distribution of relief materials provided by the CSOs.
  • Directions for the appointment of Nodal Officers at State and District levels to coordinate and regulate the work with CSOs & NGOs.
  • Directions to the State to ensure that arrangement of food and essential articles are made for Orphanages, Old Age Homes and Shelter Homes for the disabled, at the earliest.

NITI Aayog’s Directions: Advisory in nature

Chief Secretary of Bihar maintained that any direction by the NITI Aayog on the involvement of and taking help from CSOs were entirely advisory in nature and were only meant as a suggestion to supplement the State effort.

An explainer of Court’s opinion

  • Letter of NITI Aayog for involving CSOs and NGOs and whether it was binding on the State?

NITI Aayog acts as the quintessential platform of the Government of India to bring States to act together in the national interest, and thereby fosters Cooperative Federalism.

Role of NITI Aayog

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 the Central Government or State Government or may not be acceptable to the Central Government or State Government.

Ground Realities of the State

Bench stated that it is inclined to accept the State’s view that has repeatedly asserted that communication or guidelines issued by NITI Aayog are purely advisory in nature and leave in the open to the State to adapt their own policies keeping in view the ground realities of the State.

Nature of NITI Aayog’s letters: Advisory 

Further, the Supreme Court’s decision in Poonam Verma v. Delhi Development Authority, (2007) 13 SCC 154 was cited, wherein the Court held that the guidelines by their very nature did not fall into the category of legislation, direct, subordinate or ancillary and therefore were advisory in nature.

The above position was also followed by the Supreme Court in its recent decision of Praneeth K v. UGC, 2020 SCC OnLine SC 592, where the communication at issue was a letter of UGC directing universities to compulsorily conduct final examinations by a fixed date. The advisory nature of the guidelines issued by the UGC was vehemently argued before the Court. However, stating that guidelines/directions become binding when issued in exercise of statutory powers vested in the authority, it was held that the universities were mandated to adopt the guidelines.

In the instant matter, there was nothing in NITI Aayog’s letter that would show that it comes in the exercise of a statutory authority vested in the NITI Aayog.

“…it is the stand of the NITI Aayog itself that the letter to the state government was advisory in nature and not binding on the state government.”

Hence, Bench agreed with the State that they are free to formulate their own policy with respect to the engagement of CSOs and NGOs.

  • Whether the CSOs and NGOs have an enforceable right against the State to be engaged in relief operations.

Every person has a right to receive effective help, which ensures to them a right to life and livelihood guaranteed under Article 21 of the Constitution.

In times of disaster, civil society has always stepped in to provide relief and assistance and has always worked towards ensuring the socio-economic rights of the most vulnerable.

Therefore, 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.

The role of the civil Society in helping vulnerable groups and persons in need cannot be undermined.

Supreme Court in its decision of Public Union for Civil Liberties v. State of T.N., (2004) 12 SCC 381 acknowledged the above stand.

Further, the guidelines of the WHO in its Covid-19 preparedness strategies, direct all countries to establish national strategies and implement National Action Plans, and one of the core pillars of the plans highlights the need for coordination and planning efforts, which included interventions by NGOs and CSOs.

Good Governance and Salus Populi (Est) Suprema Lex

Good governance directly flows from this concept of governance and consists of ensuring the rule of law, effectiveness and accountability in governance processes.

In the Supreme Court’s decision of Manoj Narula v. Union of India, (2014) 9 SCC 1, the maxim, Salus Populi (est) suprema lex was invoked to stress that in a democracy, it was the public interest that is at the heart of good governance.

In a plethora of cases, the Apex Court has recognized the role of civil society in ensuring good governance in the country. Over the years the Court has directed the State to engage the civil society organizations in their efforts to ensure the utmost welfare of numerous vulnerable groups.

Bench reiterated the Supreme Court’s sentiment in Public Union for Civil Liberties v. State of T.N., (2004) 12 SCC 381, where the Court was pleased to point out that in many situations, the NGOs had a better position to reach out to the needy than the State itself and therefore the sate ought to leverage such services of the Civil Society.

Role of the Civil Society in a democracy cannot be understated to address the miseries brought about by the pandemic, but however, a coordinated effort of all functionaries is paramount.

Decision

For the State’s consideration, the High Court laid down the following directions for enforcement to the extent possible:

  • Actively interact and coordinate with NITI Ayog ensuring implementation of principles of good governance.
  • Allow CSOs and NGOs to conduct relief operations. Civil Society forms the fourth institution of democracy.
  •  Integrate the participation of CSOs and NGOs as part of the policy framework formulated by the State.
  • Strive to form policies that allow CSOs and NGOs to work in direct partnership with the State, especially socioeconomic welfare policies, such as those directed towards child education and nutrition, juvenile justice, women’s rights, transgender rights, etc.
  • Accountability of all institutions essential. Formulate SOPs, guidelines and codes of conduct to be adopted by the State as well as CSOs and NGOs in their performance of welfare and relief operations.
  • Leverage the information and knowledge-bases of CSOs and NGOs.
  • Create publicly accessible repositories of recognized CSOs and NGOs, maybe even organized in terms of their area of efforts and involve them in relevant projects.
  • Conduct regular consultations at every stage of relief work, with relevant CSOs and NGOs working at the ground level and are versed with the needs of the people.
  • Create a website/other online platforms for interaction with non-state actors, and as a forum for data and information sharing with the various stakeholders.
  • Have a regular dialogue, collaboration and coordination with CSOs and NGOs at all stages- of policy/ scheme formation, implementation and monitoring results.

While parting with its decision, Court stated that it hopes and expects that the State itself makes optimum use of all the aid and assistance being extended by all the organizations and by engaging them to ensure that relief reaches the maximum number of persons, including the farthest corners of Bihar.

In view of the above, the petition was disposed of. [Parul Prasad v. State of Bihar, Civil Writ Jurisdiction Case No. 5609 of 2020, decided on 09-09-2020]

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