'In Democracy Role Of Civil Society Can't Be Understated', Patna HC Directs State To Engage CSOs And NGOs As Part Of Policy Framework [Read Judgment]

The Bench of Chief Justice Sanjay Karol and Justice S. Kumar further directed the State Government to "strive to form policies which 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 rights, transgender rights etc."

Notably, the bench was hearing a PIL filed by Ms. Parul Prasad (AOR) challenging the refusal of District Magistrates to allow civil society organizations and NGO's to help and supplement relief mechanisms for needy people.

Significantly, in the month of May, the Patna HC had urged the State Government to reconsider its policy of not engaging with members of civil society in handling the COVID-19 crisis.

Two issues arose for the consideration of the 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 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 international organizations, including the WHO and endorsed by the United Nations?

Stand of the State

The State Chief Secretary maintained before the Court that any direction by the NITI Aayog on the involvement of and taking help/ support from CSOs were entirely advisory in nature and were only meant as a suggestion to supplement the State effort with possible collaborations.

Recently, for relief operations in flood-hit areas (flooding of the Kosi river), the State had disallowed direct relief operations by CSOs and NGOs in the flood-hit areas.

The Learned Assistant Director of Social Welfare Department, in his supplementary affidavit submitted before the Court that this decision was taken after an assessment of the gravity of the situation on the ground.

It was decided that the arduous nature of relief management would be better handled if organized by the State authorities, who had the primary responsibility towards the people.

It was further reiterated that all citizens of the State of Bihar were being taken care of within the State machinery.

Court's observations on the First Issue

The Court observed that the role and function of NITI Ayog in connection to states, is limited to foster cooperative federalism through structured support initiatives and mechanisms with the States on a continuous basis, recognizing that strong States make a strong nation Government policies, guidelines, instructions, subject matter of the present lis, which have not been framed under any statute or provision of the Constitution of India, are not considered as statutory in nature, and are instead in the nature of executive instructions/administrative guidelines and compliance thereof cannot be enforced through courts.

In this context, the Court agreed with the stand of the State that they are free to formulate their own policy with respect to the engagement of CSOs and NGOs and that the guidelines of the NITI Aayog to the Chief Secretaries of the State governments to engage CSOs/NGOs/voluntary organizations into the realm of relief operations are purely advisory in nature.

Court's observations on the second Issue

Firstly, the Court remarked,

"In times of disaster, the civil society has always stepped in to provide relief and assistance and has always worked towards ensuring socioeconomic 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 High Court cited the ruling of the Apex Court in the Case of Public Union for Civil Liberties (PUCL) v. State of T.N. (2004) 12 SCC 381 to conclude that the role of the civil Society in helping vulnerable groups and persons in need cannot be undermined.

While observing that Article 51-A (h) of the Constitution of India lays the foundation for participative governance under the Indian Constitution, the Court observed that the said Article provides that it is a fundamental duty of every citizen to develop "humanism" and a "spirit of inquiry and reform".

The Court further said,

"In a democracy, good governance and public interest, can best be ensured only with the involvement of the various stakeholders and institutions, including the participation of citizens and civil society."

While perusing the general international perspective on the engagement of CSO and NGOs, the Court saw that the United Nations and its various wings have close working relations with NGOs and CSOs, which supplement their efforts in carrying out actions in furtherance of their mandates, and for assistance in humanitarian interventions for States.

In this context, the Court noted,

"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."

Finally, the Court reiterated the sentiments of the Apex Court expressed in Public Union for Civil Liberties (PUCL) (supra), wherein 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.

In the light of the above, the Court directed the State to consider, enforcing following points, to the extent possible:

(i) Actively interact and coordinate with NITI Ayog ensuring implementation of principles of good governance, which, in turn, would enable citizens, achieve and fulfil the Constitutional goal of social justice.

(ii) Allow CSOs and NGOs to conduct relief operations, including in the form of distribution of food and other materials, in the State. The civil Society forms the fourth institution in a democracy. They cannot be indefinitely excluded from relief operations in times of crisis. Where concerted efforts by the State are necessary, CSOs and NGOs be included within the folds of the State operations.

(iii) Integrate the participation of CSOs and NGOs as part of the policy framework formulated by the State.

(iv) Strive to form policies which 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 rights, transgender rights etc.

(v) 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. Accountability of all institutions is essential. This will also ensure meaningful participative governance.

(vi) Leverage the information and knowledge-bases of CSOs and NGOs. These organizations are a source of valuable knowledge and expertise on social issues, that can enhance the quality of decision making and relief operations conducted by the State. Their expertise would help identify the most vulnerable groups and areas that need immediate attention.

(vii) Create publicly accessible repositories of recognized CSOs and NGOs, maybe even organized in terms of their area of efforts (childcare, environment, education, health,

(viii) 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. These consultations could be used as a forum for feedback and opinions to ensure the welfare of the people best.

(ix) 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.

(x) Have a regular dialogue, collaboration and coordination with CSOs and NGOs at all stages- of policy/ scheme formation, implementation and monitoring results.

(xi) Further, we do suggest, hope and expect, that the State itself makes optimum use of all the aid and assistance being extended by all organizations, and by engaging them, to ensure that relief reaches to the maximum number of persons, including in the farthest corners of the State of Bihar.