Bombay High Court
Dr. Rajendra Sadanand Burma And ... vs The State Of Maharashtra And Ors on 23 August, 2021
Bench: G. S. Kulkarni
12-PIL.133.2007
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
PUBLIC INTEREST LITIGATION NO. 133 OF 2007
WITH
CIVIL APPLICATION (ST) NO. 35428 OF 2013
WITH
CIVIL APPLICATION NO. 175 OF 2014
WITH
CIVIL APPLICATION NO. 56 OF 2018
WITH
CIVIL APPLICATION NO. 57 OF 2018
WITH
CIVIL APPLICATION NO. 59 OF 2008
WITH
CIVIL APPLICATION NO. 87 OF 2009
Dr.Rajendra Sadanand Burma }
and Anr. } Petitioners
versus
The State of Maharashtra }
and Ors. } Respondents
Mr.J.T.Gilda, Senior Advocate with Ms.Surbhi
Agarwal for the petitioners.
Mr.B.S.Sane, respondent no.7 in-person.
Mr.P.P.Kakade, Government Pleader with Ms.Neha
Bhide, 'B' Panel Counsel for State.
Mr.N.R.Prajapati, Advocate with Mr.Y.R.Mishra for
UOI.
Mr.Siddhesh Pilankar i/b. Dr.Uday P. Warunjikar for
the petitioner in WP/3859/2011 (Not on Board).
CORAM :- DIPANKAR DATTA, CJ &
G. S. KULKARNI, J.
DATE :- AUGUST 23, 2021
J.V.Salunke,PS
12-PIL.133.2007
PC :-
1. It has been 14 years since this Public Interest Litigation
was instituted. The writ petition raised a concern of seminal
importance. Such concern, it is reported, has shown its ugly
head in recent times once again.
2. The petitioners, who are doctors, by instituting the writ
petition, invited the Court's attention to death of children in
the age group of 0 to 6 years in the tribal dominated areas of
Chikhaldara, Dharni Taluka of Amravati District owing to
malnutrition and prayed for ameliorative steps to be taken to
prevent such unfortunate death decades after the nation
attained independence.
3. Mr.Gilda, learned senior advocate appearing for the
petitioners and the respondent no.7, appearing in-person,
contend that despite lapse of 14 years since the institution of
this writ petition, there has not been much headway in
securing the physical and mental growth of tribal children of
the aforesaid area. Between April and July, 2021, more than
70 children in the age group of 0 to 6 years have passed away
either due to malnutrition and/or lack of medical facilities.
They further contend that in the absence of requisite medical
and health care facilities, together with appropriate medical
personnel, there is an imminent need of posting of
gynaecologists, paediatricians and other specialist doctors for
preserving and protecting the younger generation of the tribal
population. It is further contended that since the tribal
villages are at a far away distance from the nearest district
hospitals, there is an imperative need to set up
J.V.Salunke,PS
12-PIL.133.2007
hospitals/health centres with appropriate facilities. According
to them, death of tribal children due to malnutrition is not
now confined to the aforesaid area but in other tribal
dominated areas in Maharashtra too there have been similar
deaths. They contend that a core committee which was set up
by an order dated July 9, 2013 to monitor and oversee that
such unfortunate incidents do not recur is largely non-
functional and ineffective. Finally, it is also contended that
there ought to be appropriate audit of the central funds that
were released from time to time for the benefit of the tribal
population.
4. Ms.Bhide, learned AGP for the State contends that
measures are in place to provide appropriate medical facilities
in the tribal areas as well as to arrest deaths of tribal children
on account of malnutrition. She also contends that the State
would inform the Court on the next date of hearing particulars
of the measures taken for the benefit of the tribal children.
5. In course of hearing, the respondent no.7 intended to
rely on a note. According to him, such note contains facts and
figures pertaining to the medical and health facilities (or the
lack of it) as well as his suggestions as to how the prevailing
situation could be improved to alleviate the problems faced by
the tribal population.
6. We direct the respondent no.7 to place on record the
contents of such note by way of an affidavit in course of this
week. Copy of such affidavit must be served in the office of
the learned Government Pleader by the same date. The writ
petition shall be listed for further consideration two weeks
J.V.Salunke,PS
12-PIL.133.2007
hence. Having regard to the gravity of the concern
expressed by the petitioners as well as the respondent no.7, it
would be appropriate if the learned Advocate General appears
and assists the Court in making appropriate orders/directions
in the matter as the circumstances could warrant.
7. We cannot overlook as to what the Supreme Court had
held more than forty years back in Francis Coralie Mullin
Vs. The Administrator, Union Territory of Delhi & Ors.1
The Supreme Court held that the right to life enshrined in
Article 21 cannot be restricted to mere animal existence. It
means something much more than just physical survival. It
held that the inhibition against its deprivation extends to all
those limbs and faculties by which life is enjoyed. That it is
every kind of deprivation that is hit by Article 21, whether
such deprivation be permanent or temporary and,
furthermore, deprivation is not an act which is complete once
and for all, and it is a continuing act and so long as it lasts, it
must be in accordance with procedure established by law. The
right to life includes the right to live with human dignity and
all that goes alongwith it, namely, the bare necessaries of life
(as against criminal existence) such as adequate nutrition,
clothing and shelter over the head and facilities for reading,
writing and expressing oneself in diverse forms, freely moving
about and mixing and commingling with fellow human beings.
It was held that every act which offends against or impairs
human dignity would constitute deprivation pro tanto of this
right to live and it would have to be in accordance with
reasonable, fair and just procedure established by law which
1 AIR 1981 SC 746
J.V.Salunke,PS
12-PIL.133.2007
stands the test of other fundamental rights. In Kishen
Pattnayak & Anr. Vs. State of Orissa with Indian
People's Front through Its Chairman the Supreme Court
reiterated the urgent need of steps to be taken by the State
for the purpose of mitigating hunger, poverty, starvation
deaths, etc. of the people of Kalahandi in the State of Orissa.
In Bandhua Mukti Morch Vs. Union of India & Ors.3 the
Supreme Court referring to Francis Coralie Mullin (supra) has
held that it is the fundamental right of everyone in this
country, assured under the interpretation given to Article 21
to live with human dignity, free from exploitation. It was held
that the right to live with human dignity enshrined in Article
21 derives its life breath from the Directive Principles of
State Policy and particularly clauses (e) and (f) of Article
39 and Articles 41 and 42, and at the least, therefore, it
must include protection of the health and strength of
workers, men and women, and of the tender age children
against abuse, opportunities and facilities for children to
develop in a healthy manner and in conditions of freedom
and dignity, educational facilities, just and humane conditions
of work and maternity relief. These were held to be the
minimum requirements which must exist in order to enable a
person to live with human dignity and neither the Central
Government nor any State Government has the right to take
any action which will deprive a person of the enjoyment of
these basic essentials. These principles are reiterated in
several other judgments of the Supreme Court of recent
times.
2 AIR 1989 SC 677
3 AIR 1984 SC 802
J.V.Salunke,PS
12-PIL.133.2007
8. The record of these proceedings is replete with telling
orders directing the respondents to take all measures so that
the right to livelihood of such underprivileged and
impoverished children and undernourished pregnant women
are protected. However, despite successive orders and the
PIL itself being of the year 2007, we are deeply pained that
the deaths of children in these areas due to malnutrition still
occur as pointed out by the petitioners.
9. This has made us to ponder as to whether the State
machinery is so weak that it cannot cater to the nutrition
needs of such fellow citizens, only because they are
primitively destined to be in tribal areas, or whether there is
no executive will to urgently look after their needs on all
fronts and more importantly of food, health, clothing and
shelter to be the bare minimum so that the right to livelihood
and such freedoms do not become meaningless. These
constitutional provisions cannot be rendered to be part of a
mere printed book by the executive when the Constitution has
deep rooted principles protecting us as a humankind. The
executive governance cannot be oblivious to the constitutional
ethos and the dignity it confers on all classes of citizens. We
feel that neglect on such vital issues ought not to be the state
of affairs after 72 years of Constitutional governance. It is not
possible to visualize to a situation that the executive
machinery in-charge of such Constitutional obligations to
protect the livelihood of such disadvantaged citizens, can at
all have a peaceful sleep, when expecting mothers are without
food and children are dying for want of food.
J.V.Salunke,PS
12-PIL.133.2007
10. In view of the aforesaid discussion and the alleged
pathetic condition in which the tribal population is made to
survive without the requisite medical and healthcare facilities
and without proper nutrition, we wish to monitor the situation
and put the Principal Secretary, Department of Health and
Family Welfare, Government of Maharashtra on guard that
recurrence of child death due to malnutrition in the near
future would not be lightly dealt with. It is, therefore,
desirable that all possible steps are taken to ensure that no
death of any tribal child, in the area in question, due to
malnutrition, occurs prior to the next date of hearing. Should
any such incident be reported, the Principal Secretary could
be held personally responsible. It would also be advisable if
the Health Department makes an immediate plan of deputing
specialist doctors like gynecologists, paediatricians etc. in the
tribal areas in question so that the tribal population is not
deprived of the basic medical and healthcare facilities. Also,
qualified dieticians may be deputed for recommending
appropriate diet for such tribal children, who are suffering
from malnutrition. All other departments of the Government
shall coordinate with each other to give effect to this order by
providing food/meals as per the diet recommended by the
dieticians.
11. The State shall file an affidavit on the returnable date
and indicate the measures that have been taken in
compliance with this order as well as deal with the contents of
the affidavit to be filed by the respondent no.7. Such affidavit
shall also indicate the status of the core committee and the
J.V.Salunke,PS
12-PIL.133.2007
functions undertaken by it since the time it was constituted by
the order dated July 9, 2013.
12. The Central Government, if so advised, may file an
affidavit giving details of funds released to the State for tribal
development and the extent of its utilization.
SALUNKE
JV
Digitally signed
by SALUNKE J V (G. S. KULKARNI, J.) (CHIEF JUSTICE)
Date: 2021.08.26
16:40:44 +0530
J.V.Salunke,PS
