Swaraj Abhiyan vs. Union of India: A rightful intervention in the drought issue of India

The problem is not lack of resources or capabilities, but the lack of will – Lokmanya Tilak

The above phrase was quoted by Madan B. Lokur, J, in the judgment of Swaraj Abhiyan v. Union of India (Writ petition (Civil) No. 857 of 2015), a judgment which not only provided a direction-cum-solution to the drought issue in major states of the country but also revealed the naked truth about states’ lack of efforts and unwillingness toward finding a solution to this problem.

This judgment came right after the controversy of conduction of IPL matches vis-à-vis drought in Maharashtra and thus a bigger debate on social justice and the role of a concerned government arose. Though, this judgment had nothing to do with the IPL issue but it went deep into the problem to the real issue and brought to the people the right way for improving the conditions of the affected. This article is an attempt to put together the major finding of the court and guidelines provided towards the solution of drought issue in major parts of India.

Revelation of bitter truth

The very first paragraph of the judgment starts with reprimanding states like Bihar, Gujarat and Haryana for their lack of will to solve the possible drought like situation or a drought by not disclosing full facts about the prevailing conditions in these states. The Court in the  judgment criticized the above said states for not properly fulfilling their responsibilities which resulted in people suffering due to drought or drought like situations.

Court condemned the state’s acts by terming it as an Ostrich-like attitude and said that such an attitude is “a pity, particularly since the person affected by a possible drought-like situation usually belongs to the most vulnerable section of society.”

It is pertinent to note the backdrop of this writ petition which is the declaration of drought in parts of nine states, namely, Uttar Pradesh, Madhya Pradesh, Karnataka, Andhra Pradesh, Telangana, Maharashtra, Odisha, Jharkhand and Chhattisgarh. Besides, it is also important to note that drought or ‘semi-scarcity’ has been declared by Gujarat during the hearing of this petition in the month of April, 2016.

Thus, following was prayed by the petitioners in this petition:

• Direction to the three respondent states (Gujarat, Bihar and Haryana) to declare an official drought and provide essential relief and compensation to people affected by the drought.
• Respondents be directed to provide to the farmers affected by drought adequate and timely compensation for crop loss and input subsidy for next crop.
• Direction to make available timely payment for employment to drought affected people under the NREGA Act, 2005.
• Also the respondents were asked to make available food grains as specified under the National Food Security Act, 2013 to the rural populace in the drought affected areas irrespective of their classification of being above the poverty line or below the poverty line.
• Similarly, it was also asked that milk or eggs be made available to all children who are covered by the Mid Day Meal Scheme or the Integrated Child Development Scheme in the drought affected areas.
• With reference to the farmers, it is prayed that crop loads for damaged crop and other debts of farmers in the drought affected areas be restructured and a fair, objective and transparent package for crop loss compensation be fixed.
• With regard to livestock in drought affected area it is prayed that a direction be given to provide subsidized cattle fodder.

The discussions

The judgment discussed multiple issues at great length ranging from that of directive principle of a social welfare state i.e. the concept of parens patriae, which recognizes the state as protector of its citizens as parent particularly when citizens are not in a position to protect themselves. From there the court focused on the role of public interest litigation as something not known to the traditional judicial system and such litigation is intended to vindicate and effectuate the public interest by preventing of violation of their rights.

After dealing with the above, judgment also discussed various provisions of The Disaster Management Act, 2005. The National Disaster Management Authority (NDMA) was discussed at great length which is constituted under the above Act. Court also referred section 6 of the Act which lays down the power and function of the NDMA. Also section 8 of the Act provides for the formation of National Executive Committee (NEC) and under section 10, the NEC is required to assist the NDMA in the discharge of its function and has the responsibility of implementing the policies and plans of the NDMA.

Court also said that corresponding obligations have been placed on the State Governments under the provisions of the DM Act not only with regard to the State but also with regard to each District in the State.

Findings

The Court, after discussing the whole Act and identifying the duties and liabilities of states in disaster management, found the following:

• That a National Plan has not yet been drawn up under Section 11 of the DM Act for disaster management. Evidently, anticipating a disaster such as a drought is not yet in the ‘things to do’ list of the Union of India and ad hoc measures and knee jerk reactions are the order of the day and will continue to be so until the provisions of the Disaster Management Act are faithfully implemented.
• Also, quite surprisingly that the National Disaster Mitigation Fund has not yet been set up even after 10 years of the enforcement of the DM Act. Risk assessment and risk management also appear to have little or no priority as far as the Union of India and the State Governments are concerned.
• On the basis of the Manual for drought Management (Manual), published by the Union of India, rainfall is the most important indicator of drought. A departure in rainfall from its long term average should be taken as the basis for drought declaration.
• However, court found that from a reading of the Manual, it is clear that drought declaration today is to be viewed quite differently from the past practice. The emphasis now is on four factors: rainfall deficiency, extent of area sown, normalization difference vegetation index and moisture adequacy index.

Directions

After going through whole discussion and arguments presented, the Court gave the following directions to be to resolve the issue:

• As mandated by section 44 of the Disaster Management Act, 2005 (Act) a National Disaster Response Force with its own regular specialist cadre is required to be constituted within 6 months from today with appropriate strength.
• As per section 47 of the Act a National Disaster Mitigation Fund is required to be established within 3 months from today.
• Section 11 of the Disaster Management Act, 2005 requires the formulation of a National Plan relating to risk assessment, risk management and crisis management in respect of a disaster at the very earliest and with immediate concern.
• The Drought Management Manual is undoubtedly a meaningful and well-researched document. However, in view of the submissions made before us by learned counsel for the parties, we are of the opinion that since the Manual was published in 2009 several new developments have taken place and there is a need to revise the contents of the Manual, keeping in mind the following factors, namely:
• Weightage to be given to each of the four key indicators should be determined to the extent possible.
• The time limit for declaring a drought should be mandated in the manual.
• The revised and updated Manual should liberally delineate the possible factors to be taken into consideration for declaration of a drought and their respective weightage.
• The nomenclature should be standardized as also the methodology to be taken into consideration for declaring a drought.
• In the proposed revised and updated Manual as well as in the National Plan, the Union of India must provide for the future in terms of prevention, preparedness and mitigation.
• The Government of India must insist on the use of modern technology to make an early determination of a drought or a drought-like situation.

Thus, it is commendable on the part of judiciary to come to the rescue of the people of this country when the government was showing an ostrich like attitude. Surely, judicial activism paid off .The following, would serve the best conclusion of this manuscript:

“The acute needs of the developing countries of the Commonwealth havesometimes produced an approach to constitutional interpretation that is unashamedly described as “activist”, including by judges themselves. Thus in India, at least in most legal circles, the phrase “judicial activism” is not viewed as one of condemnation. So urgent and numerous are the needs of that society that anything else would be regarded by many— including many judges and lawyers—as an abdication of the final court’s essential constitutional role…”