TMI Blog2016 (5) TMI 1459X X X X Extracts X X X X X X X X Extracts X X X X ..... and to give enough elbow room to a State Government to decide whether to declare a drought or not since the Manual is only a reference document and a guide for action and the State Governments could face situations under which they may need to deviate from the guidance given in the Manual. Under the circumstances, it is stated in the third affidavit of the Union of India that it would not be proper for the Union of India to sit in judgment over the decision of the State Governments or to frame binding guidelines. Hence, it will not be proper to direct the states of Bihar, Gujarat and Haryana to immediately declare drought in Taluka/Tehsil/Blocks as suggested by the Petitioner. These states in any case have taken their own reasoned decision for not declaring drought in their states which have already been enumerated in the earlier affidavits filed by this department dated 10th February, 2016 and 11th March, 2016. As mandated necessary Force, fund and plan need to be established to fulfill the required - The Secretary in the Department of Agriculture, Cooperation and Farmers Welfare, Ministry of Agriculture in the Government of India is directed to urgently hold a meeting with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... east, it is better late than never. However, Bihar and Haryana continue to be in denial mode. 2. It is not as if a drought is required to be declared in the entire State or even in an entire district. If a drought-like situation or a drought exists in some village in a district or a taluka or tehsil or block, it should be so declared. The failure of these States to declare a drought (if indeed that is necessary) effectively deprives the weak in the State the assistance that they need to live a life of dignity as guaranteed under Article 21 of the Constitution. 3. To compound the problem, the Union of India has introduced the concept of 'federalism' and canvasses the view that a disaster requires the Union of India to primarily provide financial assistance and any other assistance if it is sought by the State Government. A declaration of drought and its management is really the concern of the States. Surely, if a State Government maintains an ostrich-like attitude, a disaster requires a far more proactive and nuanced response from the Union of India. Therefore, in such a state of affairs the question that needs to be asked is: Where does the buck stop? 4. In this de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e response (or lack of it) by the State Government in Gujarat. 7. The Petitioner has also prayed that all the Respondents before us (13 in number including the Union of India) be directed to provide to the farmers affected by drought adequate and timely compensation for crop loss and input subsidy for the next crop. A prayer has also been made for a direction to the Respondents to make available timely payment for employment (more particularly to the drought affected people) under the Mahatma Gandhi National Rural Employment Generation Scheme framed under the Mahatma Gandhi National Rural Employment Guarantee Act, 2005 (for short the NREGA Act ). It has also prayed that food grains be made available as specified under the National Food Security Act, 2013 (for short the NFS Act ) to the rural populace in the drought affected areas irrespective of their classification of being above the poverty line or below the poverty line. 8. Similarly, it is prayed 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 particular reference to the farmers, it is prayed tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e drought affected persons and animals and indeed we were told by all the learned Counsel that that is also their concern. We are mentioning this because over the years, public interest litigation appears to be degenerating into a no-holds barred adversarial litigation - which it is not meant to be. 13. Public interest litigation is necessary in certain circumstances particularly in a welfare State such as ours. In Gaurav Kumar Bansal v. Union of India: (2015) 2 SCC 130 it was held that the Directive Principles enjoin the State to take all protective measures to which a social welfare State is committed. It is said in paragraph 8 of the Report: There is no manner of doubt that a welfare State is the protector of life and liberty of its citizens not only within the country but also outside the country in certain situations. The concept of parens patriae recognises the State as protector of its citizens as parent particularly when citizens are not in a position to protect themselves. The Preamble to the Constitution, read with directive principles, under Articles 38, 39 and 39-A enjoins the State to take all protective measures to which a social welfare State is committed. Inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erence to our country as follows: The acute needs of the developing countries of the Commonwealth have sometimes 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. One instance may be cited from Indian experience: the expansion of the traditional notion of standing to sue in public interest litigation. The Indian Supreme Court has upheld the right of prisoners, the poor and other vulnerable groups to enlist its constitutional jurisdiction by simply sending a letter to the Court. This might not seem appropriate in a developed country. Yet it appears perfectly adapted to the nation to which the Indian Constitution speaks. Lord Chief Justice Woolf recently confessed to having been astounded at first by the proactive approach of the Indian Supreme Court in this and other respects. Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve decided to enact a law on disaster management to provide for requisite institutional mechanisms for drawing up and monitoring the implementation of the disaster management plans, ensuring measures by various wings of Government for prevention and mitigating effects of disasters and for undertaking a holistic, coordinated and prompt response to any disaster situation. 18. It is quite clear from the above that the object of the DM Act is not only to draw up, monitor and implement disaster management plans but also prevent and mitigate the effects of a disaster. 19. Section 2(d) of the DM Act defines disaster as meaning a catastrophe, mishap, calamity or grave occurrence in any area arising from natural or man-made causes which results, inter alia, in human suffering. A drought would certainly fall within this definition of disaster. 20. Section 2(e) of the DM Act defines disaster management as meaning a continuous and integrated process of planning, organizing, coordinating and implementing measures necessary or expedient for prevention of danger or threat of any disaster and mitigation or reduction of risk of any disaster or its severity or consequences. 21. Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hough a policy document has been prepared by the NEC. 27. 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. 28. Section 36 of the DM Act places a responsibility on every Ministry or Department of the Government of India to take measures necessary for the prevention of disasters, mitigation, preparedness and capacity building in accordance with the guidelines laid down by the NDMA. 29. Section 44 of the DM Act provides for the constitution of a National Disaster Response Force for the purposes of a specialist response to a threatening disaster situation or disaster. We have been informed that no such specialist Force has been constituted as yet. 30. Section 46 of the DM Act provides for the establishment of a National Disaster Response Fund (for short the NDRF ) for meeting any threatening disaster situation or disaster. The NDRF shall be credited with an amount by the Government of India after due appropriation made by Parliament as provided by law. This Fund shall be made available to the NEC for meeting the expenses for an emergen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rprised 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. 37. Having expressed our anguish that the Disaster Management Act, 2005 has not been faithfully implemented as yet, we must add that it is not that nothing has been done. 38. Insofar as a drought is concerned, the Union of India has published two important documents. The first important document is the Manual for Drought Management (for short the Manual ) prepared in November 2009 by the Department of Agriculture and Cooperation, Ministry of Agriculture in the Government of India. The second important document is the National Disaster Management Guidelines for Management of Drought (for short the Guidelines ) prepared in September 2010 by the National Disaster Management Authority of the Government of India. According to the Union of India, these documents have no binding force and are mere guidelines to be followed, if so advised. This has resulted in a great deal of observance in the breach of the Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tics of the specific plant, its stage of growth and the physical and biological properties of the soil. Agricultural drought arises from variable susceptibility of crops during different stages of crop development, from emergence to maturity. In India, it is defined as a period of four consecutive weeks (of severe meteorological drought) with a rainfall deficiency of more than 50 % of the long-term average or with a weekly rainfall of 5 cm or less from mid-May to mid-October (the kharif season) when 80% of India's total crop is planted or six such consecutive weeks during the rest of the year. The classification of drought as mentioned above need not be the only criteria used for declaring drought.2 41. In this context, the Manual promotes a new system of drought management (different from the colonial model) broadly based on the following salient features: 1. Abandon the use of famine codes and varied State management plans. 2. Focus on mitigation measures. 3. Adopt newer technologies. 4. Adapt to the new legal framework. 5. Include employment and area development programmes in drought mitigation. 6. Prescribe standardized steps for management at the na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons, though these are often attributed to over extraction of water.8 Sowing and Crop Conditions: An important indicator of drought provides information on sowing on a weekly basis. A delayed sowing shows rainfall deficiency and indicates the onset of drought. Reports on crop conditions also provide an indication of the severity of the drought situation. If the crops are wilting, it indicates soil moisture stress. A crop contingency plan and other mitigation measures are implemented based on reports prepared for all the crops sown during the monsoon.9 Monitoring of Drought by Scientists 43. Scientists utilize other indices to measure the intensity, duration and spatial extent of drought.10 These are: Aridity Anomaly Index; Standardized Precipitation Index; Palmer Drought Severity Index; Crop Moisture Index; Surface Water Supply Index; Normalized Difference Vegetation Index; Normalized Difference Wetness Index, Effective Drought Index and Moisture Adequacy Index. It is not necessary to deal with each of these indices particularly since the Manual makes is quite clear that there ought to be a convergence of views between the State Governments and scientists in the declaration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he south-west monsoon) and or from December to March (north-east monsoon), is less than 75% of the average rainfall for the season and there is an adverse impact on vegetation and soil moisture, as measured by the vegetation index and soil moisture index.12 Extent of area sown 46. Sowing is an important indicator of the spread and severity of drought. The area under sowing provides reliable information on the availability of water for agricultural operations. Drought conditions could be said to exist if the total sowing area of Kharif crops is less than 50% of the total cultivable area by the end of July/August, depending upon the Schedule of sowing in individual States. In such situations, even if rainfall revives in the subsequent months, reduction in the area under sowing cannot be compensated for and the agricultural production would be substantially reduced. The State Government should therefore consider declaring a drought if along with the other indicators, the total area sown by the end of July/August is less than 50% of the total cultivable area. 47. In case of Rabi crops, the declaration of drought could be linked to the area of sowing being less than 50% of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e applied in conjunction with other indicators such as rainfall figures, area under sowing and NDVI values.16 National Disaster Management Guidelines 52. The second important publication handed over to us is in a sense a follow-up to the Manual, namely, the National Disaster Management Guidelines of September, 201017 published by the NDMA (with the Prime Minister as its Chairperson) constituted under the Disaster Management Act, 2005. The Guidelines provide a large number of meaningful suggestions and practices on virtually all aspects of drought management. However, what is important for our present purposes is that in the 'Status and Context' of drought in India, it is stated, inter alia, that drought has a slow onset and has an impact on economic, environmental and social sectors. While its impact can be reduced through mitigation and preparedness, it is important to develop contextual plans to deal with the impacts. It is stated as follows: Drought is a natural hazard that differs from other hazards as it has a slow onset, evolves over months or even years and affects small pockets to a large regional expanse. Its onset and severity are often difficult to deter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o call it) in 526 villages in three districts followed by another 468 villages in five districts (including the earlier three districts) during the pendency of this writ petition. Perhaps more areas in Gujarat might need to be declared as drought hit. 56. Notwithstanding the absence of judicially manageable standards, the judiciary cannot give a totally hands-off response merely because such standards cannot be laid down for the declaration of a drought. However, the judiciary can and must, in view of Article 21 of the Constitution, consider issuing appropriate directions should a State Government or the Union of India fail to respond to a developing crisis or a crisis in the making. But there is a Lakshman rekha that must be drawn. Declaration of drought in Bihar 57. The State of Bihar has filed two affidavits before us-one on or about 14th January, 2016 and the other on or about 11th April, 2016. The latter affidavit effectively relies on the affidavits filed by the Union of India since the State of Bihar has furnished all the requisite information and data to the Central Government regarding the issue of drought declaration in the State. The Union of India has filed it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ors is not clear. 61. What is more saddening is that the rainfall coverage report has been selectively adverted to for no apparent reason. While the State-wide rainfall deficit for June and July 2015 might have been 30%, the rainfall in June and July 2015 in ten districts, that is, Araria, East Champaran, Madhepura, Madhubani, Muzaffarpur, Purnia, Saharsa, Sheohar, Sitamarhi and Siwan was less than 50% the average rainfall. The coverage report clearly indicates that as on 30th September, 2015 rainfall is deficit in 19 out of 38 districts in Bihar that is in half of the districts in Bihar the rainfall is below 75% of the average. The affected districts are Araria, Bhojpur, Gaya, Gopalganj, Madhepura, Madhubani, Muzaffarpur, Nalanda, Nawada, Patna, Purnia, Saharsa, Saran, Sheohar, Sitamarhi, Siwan, Supaul, Vaishali and West Champaran. The overall State-wide deficit is 27% and this gets progressively worse. As on 30th October, 2015 three more districts that is Darbhanga, Jamui and Katihar have rainfall below 75% of the average, the overall State-wide deficit being 31%. 62. Since Bihar has selectively disclosed information and closeted full and complete information from us, we do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Bihar has made available the figures only till August 2015 but as we have seen earlier, the general situation in Bihar gets progressively worse after August 2015. The figures (other than rainfall coverage) post August 2015 have not been shared with us by learned Counsel for Bihar for unknown reasons. Perhaps the game plan is to disclose selective information and material that suits its interests (but not the interest of its citizens) and to withhold information and material that might be uncomfortable. We therefore cannot make any comment on the third key indicator that is NDVI. 66. However, as far as MAI is concerned, the Petitioner has annexed to the Final Rejoinder the MAI for Bihar.23 A perusal of this clearly shows that large swathes of Bihar are facing a moderate or mild drought as on 30th September, 2015. 67. In its defence, Bihar states that a Crisis Management Group headed by the Chief Secretary has been constituted. Several steps have been taken for arrangement of water for irrigation and distribution of diesel subsidy for Kharif and Rabi crops. Bihar has canvassed a case of no water shortage. It is pointed out that Bihar has 12 river basins and most of them are p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions by learned Counsel for Gujarat on 7th April, 2016 some documents were handed over to us. 71. According to Gujarat, rainfall received was 61.9% of the average rainfall in the end of July 2015 and during the monsoon period of 2015-16 the State received 81.24% of the annual rainfall. Hence there is no rainfall deficit in Gujarat. Again, the figures presented to us in this manner do not reveal the entire truth. 72. Even though Gujarat relies upon State-wide figures of rainfall, it is acknowledged that normally the pattern of rainfall varies from village to village and sometimes within the same area, certain villages receive high rainfall and certain villages receive low rainfall, therefore, district-wise averages are normally considered. There is therefore an inherent contradiction in the understanding of Gujarat in what constitutes deficit rainfall as she understands and as projected before us. 73. The rainfall data submitted by Gujarat makes for interesting reading inasmuch as in June 2015 only two districts (in Saurashtra) received more than 50% rainfall out of 33 districts. In July 2015 the number of districts receiving adequate rainfall went up substantially but t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht in 526 villages in three districts by a resolution dated 1st April, 2016. The Government of Gujarat uses the expression 'semi scarcity' as against drought and one of the submissions made by the Petitioner in this regard is that there must be some standardization in the nomenclature otherwise each State can use a different expression without admitting a drought. 78. Subsequently, another 468 villages have also been declared as affected by drought (or semi-scarcity-the date of the second declaration has not been indicated). Therefore, a total of 994 villages in five districts have been declared as affected by drought in Gujarat, despite its claim of adequate rainfall and normal crop sowing. 79. At this stage, it should be mentioned that Maharashtra employs the annewari system where the cut-off is 50 paise crop yield for declaring a drought or a drought-like situation. (We take it that the unit is 50 paise in a rupee of 100 paise). What is more important is that Maharashtra completed the crop-cutting exercise in October 2015 and passed a Resolution on 20th October, 2015 spelling out the various measures to be undertaken in villages where annewari is less than 50 paise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... part of the Government of India may be necessary in this regard. 84. The Manual very clearly refers to the effect and impact of a delayed declaration of drought (as in the case of Gujarat). It is stated in the Manual as follows: Drought declaration should be a timely step so that relief assistance and other concessions can be provided to the drought affected people at the right time.25 It is further stated as follows: Ideally, States should declare drought in October. The monsoon is over by this month and figures for total rainfall are available in this month. Similarly, a final picture regarding the crop conditions as well as the reservoir storage is available by the end of October. It provides adequate time for the central team to visit the State and assess the crop losses.26 (The emphasis is in the original). The Guidelines also state: Declaration of drought, traditionally, is recommended after the estimates of crop production are obtained through Annewari/Paisewari. Generally those areas where Annewari/Paisewari is less than 50 percent, the areas is considered to be affected by a drought. Final figures in respect of Kharif crops are available only in December ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any deficit rainfall district where the area under sowing and average production of food grain is below 50%. In fact, overall there has been an increase in food grain production by 3.2% over Kharif 2014. 89. Haryana says that a self-sufficient irrigation system is in place in the State with two important sources of canal water that is the Bhakra Canal and the Yamuna river. In addition, there are lakhs of tube-wells and wells for irrigation purposes which ensure that 83% of the State is covered under irrigation through canals, tube-wells and wells. There is no shortage of fodder or drinking water. 90. Under the circumstances it is stated that there is no drought-like situation in Haryana. The concentration of Haryana is entirely on food grain production. Undoubtedly, there does appear adequate food grain productivity as far as the Kharif crop is concerned. But there is no acknowledgement of rainfall deficit which, as per the Manual is the most important indicator for the purposes of declaring a drought. There is also no application of mind to any of the key indicators (NDVI and MAI) mentioned in the Manual and the pity is that there appears to be a total lack of any concern fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d all the States require to follow standard definition and modalities for declaration of drought recommended by the Manual for Drought Management. In this regard, it is stated that the Manual for Drought Management is used extensively as a reference document as well as guide for action by policy makers, administrators and technical professionals. That the Government of India recommends these guidelines, it also recognizes that the State Government could face situations under which they may need to deviate from these guidelines and they may have necessary freedom to do so. The manual does not in any way reduces the state government authority to take their own decisions in a drought situation. This is necessary as there might be situations which do not find mention in the manual. Also the fact that some states are more irrigated than others, as also availability of water, and are not so dependent on rainfall vis-a-vis other states. The requirement of water is also dependent on the type of crop sown and even when there is deficit rainfall, the crop production does not necessarily fall to that extent in all states. Accordingly, in a federal polity, it may not be justified to issue bind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ought. In other words, a drought has been declared in 1/3rd of the country. In our opinion, a strong case has been made out for reconsidering the declaration of a drought in Bihar and Haryana and in more parts of Gujarat. It may be mentioned that as per the Manual the three States of Bihar, Gujarat and Haryana are agriculturally important but drought-vulnerable.29 96. Of the 10 States in which drought has been declared (other than Gujarat) as per the information furnished by the State Governments to the Union of India, the number of affected districts is 234 representing more than 1/3rd of the districts in the country; the total population in the districts affected by drought is about 33 crores which is about 1/4th of the population of the country. Swaraj Abhiyan says that the figure is between 40 crores and above 50 crores that is about at least 1/3rd of our population. We are therefore concerned with a very large number of lives and not just very large numbers and statistics. It is true that the degree of severity or intensity of the drought might impact differently in different parts of a district or a smaller unit, but the fact is that drought does exist even in those areas, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pace at Hyderabad. This report gives the agricultural drought situation for a number of districts. As far as the three States of Bihar, Gujarat and Haryana are concerned, the drought information is as follows: 100. It is clear from the above chart that it was known in October 2015 that several districts in these three States are facing varying degrees of drought. Yet, no preparatory steps appear to have been taken to tackle a possible disaster. The information provided is from reputed agencies of the Government of India and there is no reason for any of the States to have ignored it. It is this ostrich-like attitude of these State Governments that compels us to make some comment about their concern. Directions 101. Keeping all the factors in mind we issue the following directions: 1. As mandated by Section 44 of the Disaster Management Act, 2005 a National Disaster Response Force with its own regular specialist cadre is required to be constituted. Unfortunately, no such force has been constituted till date. Accordingly, we direct the Union of India to constitute a National Disaster Response Force within a period of six months from today with an appropriate and regular c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the Manual and it is not necessary to repeat it. Hence the necessity of a timely declaration. (iii) 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. Haryana has added several factors as has been mentioned above. Similarly, Bihar has added some other factors such as perennial rivers while Gujarat has added factors such as the nature of the soil etc. While we appreciate that it may be difficult to lay down specific parameters and mathematical formulae, the elbow room available to each State enabling it to decline declaring a drought (even though it exists) should be minimized. This would certainly be in the interest of the people who face distress because of a drought or a drought-like situation. (iv) The nomenclature should be standardized as also the methodology to be taken into consideration for declaring a drought or not declaring a drought. The Gujarat Relief Manual, for example, apparently refers to scarcity and semi-scarcity . The State Government appears to be hesitant to use the word drought even though a drought or a drought-like situatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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