Swaraj Abhiyan- (I) Vs. Union of India and Ors, on 11th May 2016, Supreme Court India – Read Judgement

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 857 OF 2015

Swaraj Abhiyan – (I) .…Petitioner

versus

Union of India & Ors..…Respondents
J U D G M E N T

Madan B. Lokur, J.

Lokmanya Tilak said:
“The problem is not lack of resources or capability, but the lack of Will.”
1. This lack of Will is amply demonstrated in this public interest
litigation under Article 32 of the Constitution, in which the States of
Bihar, Gujarat and Haryana are hesitant to even acknowledge, let alone
address, a possible drought-like situation or a drought by not disclosing
full facts about the prevailing conditions in these States. A candid
admission does not imply a loss of face or invite imputations of
ineffective governance – it is an acknowledgement of reality. An ostrich-
like attitude is a pity, particularly since the persons affected by a
possible drought-like situation usually belong to the most vulnerable
sections of society. The sound of silence coming from these States subjects
the vulnerable to further distress. During the hearing of this public
interest petition, no one alleged a lack of effective governance, only the
lack of an effective response and therefore we are at a loss to understand
the hesitation of these States. Ironically, towards the fag end of the
hearing, Gujarat finally admitted the existence of a drought in five
districts – a fact that could have been admitted much earlier. But at
least, 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 decision and for the present, we propose to deal only with
the submissions relating to the prevailing drought situation or the drought-
like situation in the States before us since there is some urgency in
deciding it. We shall deal with the other issues raised by the petitioner
in subsequent decisions as they are in a sense quite disparate, though
linked to the drought situation or the drought-like situation.
Background
5. The petitioner Swaraj Abhiyan has filed this public interest
petition under Article 32 of the Constitution. Before taking up the case
for final hearing, we put it to learned counsel appearing on behalf of
Swaraj Abhiyan whether the petitioner is a political party. We were
informed that it is an unregistered non-government organization and is not
a political party. We put this question to learned counsel for two reasons:
firstly, we were of the prima facie opinion that the reliefs sought in the
writ petition arising out of drought-like conditions and a declaration of
drought in some parts of the country was not a political issue but a matter
of grave humanitarian distress and invited concern for the affected persons
and animals, particularly livestock. Secondly, we have some prima facie
reservations whether a public interest litigation initiated by a political
party should at all be entertained. Since we were given an assurance that
Swaraj Abhiyan is not a political party and humanitarian concern was
uppermost, we proceeded to hear the petition on merits.
6. The writ petition was filed in the backdrop of a declaration of
drought in some districts or parts thereof in nine States that is Uttar
Pradesh, Madhya Pradesh, Karnataka, Andhra Pradesh, Telangana, Maharashtra,
Odisha, Jharkhand and Chhattisgarh. Drought or “semi-scarcity” has since
been declared very recently in April 2016 in 526 villages followed by
another 468 villages in Gujarat as well. All these States are respondents
in this writ petition along with the Union of India. According to Swaraj
Abhiyan drought ought to be declared in most parts of the respondent States
of Bihar, Gujarat and Haryana. It has, therefore, sought a direction to
these three States to declare a drought and provide essential relief and
compensation to people affected by the drought. The prayer for a
declaration of drought in Gujarat has seemingly become infructuous, but we
do have a lot to say about the 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 that crop loans for damaged crops 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 areas it is prayed that a
direction be given to provide subsidized cattle fodder.
9. During the pendency of the writ petition, several affidavits were
filed by the Union of India and by the respondent States. The record being
somewhat unwieldy learned counsel for the petitioner Mr. Prashant Bhushan
submitted a ‘Written Revised Note’ for our convenience. The Note is based
on the information culled out from the various affidavits on record. This
has been supplemented by a detailed document styled as a ‘Final Rejoinder’
which is really an aggregation of the submissions made on behalf of the
petitioner.
10. The Union of India has filed a counter affidavit on or about 15th
January, 2016, an additional affidavit on or about 10th February, 2016 (the
first affidavit), another additional affidavit on or about 19th March, 2016
(the second affidavit), yet another additional affidavit on or about 28th
March, 2016 (the third affidavit which is in response to the Note) and an
affidavit filed on or about 11th April, 2016 (the fourth affidavit). The
learned Additional Solicitor General also handed over (on our asking) some
additional but relevant documents.
11. The Note, the Final Rejoinder, the third affidavit filed by the
Union of India and the list of documents are the principal documents
referred to and relied upon during oral submissions by the learned
Additional Solicitor General. With regard to the declaration of a drought,
affidavits were also filed by the three States that we are primarily
concerned with – Bihar, Gujarat and Haryana. Learned counsel for these
States also handed over some documents during the course of their
submissions. The sum and substance of their affidavits and the documents
are generically dealt with in the affidavits filed by the Union of India.

12. On the commencement of hearing, we made it very clear to learned
counsel that we are treating the writ petition as one filed in public
interest. Consequently, and even otherwise, given the backdrop in which the
petition is filed, we informed learned counsel that the petition ought not
to be taken as an adversarial contest. Our concern is for the 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[1] 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. Interestingly, this doctrine has been
recognised in India even before the Constitution came into force.”
14. There are occasions when people in disadvantaged situations are
unable to have access to courts and therefore access to justice and need
someone to speak up for them. How else can a welfare State function
effectively if it cannot even hear let alone listen to what the
underprivileged and needy people have to say? In Sheela Barse v. Union of
India[2] this Court held that public interest litigation is intended to
prevent the violation of rights of those segments of society that cannot
assert their rights owing to poverty, ignorance or other disadvantages. It
was said in paragraph 11 of the Report:

“The compulsion for the judicial innovation of the technique of a public
interest action is the constitutional promise of a social and economic
transformation to usher in an egalitarian social order and a welfare State.
Effective solutions to the problems peculiar to this transformation are not
available in the traditional judicial system. The proceedings in a public
interest litigation are, therefore, intended to vindicate and effectuate
the public interest by prevention of violation of the rights,
constitutional or statutory, of sizeable segments of the society, which
owing to poverty, ignorance, social and economic disadvantages cannot
themselves assert — and quite often not even aware of — those rights.”
15. Public interest litigation presents the Court with an issue based
problem concerning society and solutions need to be found to that problem
within the legal framework. Sometimes, the cause of the problem is
bureaucratic inactivity and apathy; sometimes executive excesses that cause
the problem and sometimes the problem is caused by the ostrich-like
reaction of the executive. These situations represent the broad contours of
public interest issues brought to the notice of the Court, and these are
the kind of issues for which we need to search for solutions. The
successful pursuit of appropriate solutions and consequent conclusions and
directions are often pejoratively and unfortunately described as judicial
activism. In this context, it is worth quoting Justice Michael Kirby a
former judge of the High Court of Australia who says in his Hamlyn Lecture
“Judicial Activism – Authority, Principle and Policy in the Judicial
Method”[3] with reference 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. However, he went on:
“.. . I soon realised that if that Court was to perform its essential role
in Indian society, it had no option but to adopt the course it did and I
congratulate it for the courage it has shown”.

Much later, Justice Kirby goes on to say:
“It is beyond contest that some of the accretions of power to the judiciary
over the last century have come about as a result of failures and
inadequacies in lawmaking by the other branches and departments of
government. Constitutional power hates a vacuum. Where it exists, in the
form of silence, confusion or uncertainty about the law, it is natural that
those affected, despairing of solutions from the other law-making organs of
government, will sometimes approach the judicial branch for what is in
effect a new rule. They will seek a new law that responds quickly to their
particular problem. When this happens judges, if they have jurisdiction in
the case, are not normally at liberty to just send the parties away. How do
they decide whether the fulfilment of their judicial role permits, or
requires, the giving of an answer or obliges them to decline and force the
parties to return to the politicians or bureaucrats? To what extent must
judges defer to Parliament, when they know full well, from many like cases,
that nothing will be done because the problem is too particular, divisive,
technical or boring to merit political attention and parliamentary time?
What, in other words, is the judicial role in the particular case?”

To be sure, judicial activism is not an uncomplimentary or uncharitable
epithet to describe the end result of public interest litigation. Those who
benefit from judicial activism shower praise and those who are at the
receiving end criticize it. C’est la vie!
16. Keeping this and the common Indian in mind, we have proceeded to
hear and decide this petition and we acknowledge that learned counsel made
their submissions in the spirit expected of them on such a vital issue as
risk management, drought assessment and drought management.
The Disaster Management Act, 2005
17. The Disaster Management Act, 2005 (hereinafter referred to as “the
DM Act”) has been on the statute book for more than a decade since it
received the assent of the President on 23rd December, 2005. The Statement
of Objects and Reasons for enacting the DM Act is, inter alia, as follows:-
“The Government have 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. Section 2(i) of the DM Act defines “mitigation” as meaning measures
aimed at reducing the risk, impact or effect of a disaster or threatening
disaster situation.
22. By virtue of Section 3 of the DM Act, a National Disaster Management
Authority (for short “the NDMA”) is required to be constituted and we are
told that it has been constituted with the Prime Minister as the
Chairperson ex-officio.
23. Section 6 of the DM Act provides for the powers and functions of the
NDMA and these include laying down policies on disaster management,
approving the National Plan prepared under Section 11 of the DM Act and to
take such other measures for prevention of a disaster or the mitigation or
preparedness for dealing with a threatening disaster situation.
24. Section 8 of the DM Act provides for the constitution of a National
Executive Committee (for short “the NEC”). In terms of Section 10 of the
DM Act, the NEC is required to assist the NDMA in the discharge of its
functions and has the responsibility of implementing the policies and plans
of the NDMA and to ensure compliance of directions issued by the Government
of India for the purpose of disaster management in the country. It is also
provided that the NEC shall prepare a National Plan under Section 11 of the
DM Act to be approved by the NDMA. The NEC shall monitor the implementation
of the National Plan. It shall also monitor, coordinate and give directions
regarding the mitigation and preparedness measures to be taken by the
Government of India and to lay down guidelines for and give directions to
the State Government and State Authorities regarding measures to be taken
by them in response to any threatening disaster situation or disaster.
25. Section 11 of the DM Act provides for the drawing up of a disaster
management plan for the whole country to be called the National Plan. The
National Plan is required to be prepared by the NEC and is expected to
include measures to be taken for the prevention of disasters or the
mitigation of their effects, measures to be taken for preparedness and
capacity building to effectively respond to any threatening disaster
situation or disaster.
26. The National Plan prepared by the NEC is required to be approved by
the NDMA and shall be reviewed and updated annually. We are told by the
learned Additional Solicitor General that a National Plan has not yet been
prepared, though 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 emergency response, relief and
rehabilitation. We have been informed by the learned Additional Solicitor
General that the NDRF has been established and the funds of the NDRF are
drawn from the National Calamity Contingency Duty imposed on specified
goods under the Central Excise Act and the Customs Act. In addition to
this, the Government of India also releases funds for the NDRF.
31. Section 47 of the DM Act provides for the constitution of a National
Disaster Mitigation Fund for projects exclusively for the purposes of
mitigation which, as mentioned earlier, means measures aimed at reducing,
inter alia, the risk of a disaster or threatening disaster situation.
Although, the DM Act has been in force for more than 10 years, the National
Disaster Mitigation Fund has not yet been constituted. There is, therefore,
no provision for the mitigation of a disaster.
32. Section 48 of the DM Act places a corresponding obligation on the
State Governments to create response and mitigation funds at the State
level and the District level. We are informed that the States have set up
State Disaster Response Funds but it is not clear whether District Disaster
Response Funds have been established. Since the Government of India has
not established the National Disaster Mitigation Fund, it is unlikely that
the State Governments or the District Administration would have set up such
Mitigation Funds.
33. The above review of the DM Act makes it abundantly clear that the
statute provides for risk assessment and risk management in the event of a
disaster such as a drought and also crisis management in the event of a
drought.
34. There is no dispute and indeed there cannot be any dispute that a
drought is a disaster and risk assessment and risk management as well as
crisis management of a drought falls completely within the purview of the
Disaster Management Act, 2005.
35. We are quite surprised at being informed by the learned Additional
Solicitor General 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.
36. We are also quite surprised 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 Manual and the Guidelines.
What is a drought?
39. The Manual is undoubtedly comprehensive, well-researched and
instructive. However, before we refer to it, we must point out that it is
now of more than six years vintage. It might perhaps need a revision
considering the experience gained over the years and the availability of
more and better information including more accurate information now
available from the use of technology, satellite imagery, weather stations
etc. Some suggestions have also emerged during the hearing of the writ
petition and these too would require consideration in updating the Manual.
There certainly cannot be any harm in being up to date, particularly in
matters concerning a drought or a drought like situation.
40. The Manual expresses difficulty in providing a precise and
universally accepted definition of drought in view of a large number of
factors involved. It is generally said that conditions of drought appear
when rainfall is deficient in relation to the statistical multi-year
average for a region over an extended period of a season or even more. The
impact of a drought could be economic, environmental and social. The Manual
classifies drought in three categories in terms of impact namely
meteorological drought, hydrological drought and agricultural drought.
These are explained as under:

“Meteorological drought is defined as the deficiency of precipitation from
expected or normal levels over an extended period of time. Meteorological
drought usually precedes other kinds of drought and is said to occur when
the seasonal rainfall received over an area is less than 25 % of its long-
term average value. It is further classified as moderate drought if the
rainfall deficit is 26-50% and severe drought when the deficit exceeds 50%
of the normal.

Hydrological drought is best defined as deficiencies in surface and sub-
surface water supplies leading to a lack of water for normal and specific
needs. Such conditions arise, even in times of average (or above average)
precipitation when increased usage of water diminishes the reserves.

Agricultural drought is usually triggered by meteorological and
hydrological droughts and occurs when soil moisture and rainfall are
inadequate during the crop growing season causing extreme crop stress and
wilting. Plant water demand depends on prevailing weather conditions,
biological characteristics 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.”[4]

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:
Abandon the use of famine codes and varied State management plans.
Focus on mitigation measures.
Adopt newer technologies.
Adapt to the new legal framework.
Include employment and area development programmes in drought mitigation.
Prescribe standardized steps for management at the national/central
level.[5]

Strangely, none of these prescriptions seem to have gained universal
acceptance over the years.
Monitoring of Drought by State Governments
42. According to the Manual, drought is monitored by the State
Governments by obtaining information on four key indicators.[6] They are:
rainfall; storage water levels in reservoirs; surface water and ground
water level; sowing and crop conditions. The Manual explains these key
indicators in the manner given below. However, it must specifically be
pointed out that the Manual categorically states that “Rainfall is the most
important indicator of drought. A departure in rainfall from its long-term
averages should be taken as the basis for drought declaration. The IMD
[Indian Meteorological Department] can provide rainfall data to the State
Government, which can also collect data through its own network of weather
stations.”[7]
Rainfall: The Indian Meteorological Department (IMD) and State Governments
collect data on rainfall every day during the rainy season. According to
the IMD, drought sets in when the deficiency of rainfall at a
meteorological sub-division level is 25 per cent or more of the Long-Term
Average of that sub-division for a given period. The drought is considered
“moderate”, if the deficiency is between 26 and 50 per cent, and “severe”
if it is more than 50 per cent.[8]
Storage Water Levels in Reservoirs: State Governments collect data on the
levels of stored water in important reservoirs through its Irrigation
Department. Reservoir storage level is a useful indicator of water
shortages. As data on reservoir storage are available on a regular basis,
these could provide accurate information on water shortages. The Central
Water Commission maintains data on water levels in 81 important reservoirs
of the country, where the water storage is compared with the Full Reservoir
Level.[9]
Surface Water and Groundwater Level: Natural discharge from shallow
aquifers provides base flow to streams and sustains the water in lakes and
ponds, particularly during periods of dry weather. Similarly, groundwater
levels are also affected due to poor recharge, whether due to lack of
adequate rainfall or poor water conservation practices. As a result, water
availability in deep bore-wells and open wells diminishes substantially.
Declining groundwater level are important indicators of drought conditions,
though these are often attributed to over extraction of water.[10]
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.[11]
Monitoring of Drought by Scientists
43. Scientists utilize other indices to measure the intensity, duration
and spatial extent of drought.[12] 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 of a drought. It is, therefore, stated:
“It is clear that that no one indicator or index is adequate for monitoring
drought at the State level; instead, a combination of indicators and
indices needs to be used for drought declaration.

On the basis of wide-ranging consultations with the meteorologists and
agriculture scientists, rainfall deficiency, the extent of area sown,
normalized difference vegetation index and moisture adequacy index are
recommended as the four standard monitoring tools which could be applied in
combination for drought declaration. Since the information on these
indicators and indices are available at the level of Taluka /Tehsil /
Block, drought may be declared by the State Government at the level of
these administrative units on the basis of observed deficiencies. At least
three indicators or index values could be considered for drought
declaration.

It is recommended that these new standards / guidelines should replace the
present system of drought declaration that is based on rainfall deficiency
and reduction in annewari / paisewari / girdawari figures.”[13]

44. 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: (i) Rainfall deficiency; (ii) Extent of
area sown; (iii) Normalized Difference Vegetation Index, and (iv) Moisture
Adequacy Index. This is generally accepted by almost all the States and the
Union of India as well.
Rainfall deficiency
45. How is rainfall deficiency calculated? It must be remembered that
rainfall is the most important indicator of drought. The State Government
can obtain rainfall data from the IMD and also collect data through its own
network of weather stations. This rainfall data may be applied in two ways:
1. The State Government could consider declaring a drought if the total
rainfall received during the months of June and July is less than 50% of
the average rainfall for these two months and there is an adverse impact on
vegetation and soil moisture, as measured by the vegetation index and soil
moisture index. Such a rainfall deficit would cause so much damage to
agriculture that it would be difficult to revive crops.
2. The State Government could consider declaring a drought if the total
rainfall for the entire duration of the rainy season of the state, from
June to September (the 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.[14]
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 total cultivable area by the
end of November /December along with the other indicators.[15]
Normalized Difference Vegetation Index (NDVI)
48. According to the Manual, there are at present 11 (eleven)
agriculturally important and drought-vulnerable States. They are: Andhra
Pradesh (now including Telangana), Bihar, Gujarat, Haryana, Karnataka,
Maharashtra, Madhya Pradesh, Orissa, Rajasthan, Tamil Nadu and Uttar
Pradesh.[16] We are primarily concerned with the drought-vulnerable States
of Bihar, Gujarat and Haryana.
49. NDVI is an index indicating the density of vegetation on earth based
on the reflection of visible and near infrared lights detected by the
National Oceanic and Atmospheric Administration – Advanced Very High
Resolution Radiometer instrument from a remote sensing satellite. The
values obtained for a given NDVI always range from –1 to +1. A negative
number or a number close to zero means no vegetation and a number close to
+1 (0.8-0.7) represents luxurious vegetation. For declaring drought, States
need to obtain NDVI values through the National Agricultural Drought
Assessment and Monitoring System. All the above-mentioned States receive
National Agricultural Drought Assessment and Monitoring System reports on a
regular basis. Those States which do not receive the report can approach
the National Remote Sensing Centre for receiving the information. It is
necessary that the States declare drought only when the deviation of NDVI
value from the normal is 0.4 or less. However, the NDVI value needs to be
applied in conjunction with other indicators and values. The NDVI must not
be invoked for the declaration of drought in isolation from the other two
key indicators.[17]
Moisture Adequacy Index (MAI)
50. MAI is based on a calculation of weekly water balance and is a ratio
expressed as a percentage. If the percentage is between 76 and 100 there is
no drought; between 51 and 75 there is mild drought; between 26 and 50
there is a moderate drought and below 25 there is a severe drought.
51. MAI values are critical to ascertain agricultural drought. The State
agriculture department needs to calculate the MAI values on the basis of
data available to it and provide it to the Department of Relief and
Disaster Management, which would ascertain that MAI values conform to the
intensity of moderate drought before drought is declared. MAI values need
to be applied in conjunction with other indicators such as rainfall
figures, area under sowing and NDVI values.[18]
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, 2010[19] 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
determine. As a result, there is a lack of urgency in response. Like other
hazards, the impacts of drought span economic, environmental and social
sectors and can be reduced through mitigation and preparedness. Because
droughts are a normal part of climate variability for virtually all
regions, characterized by extended periods of water shortage, it is
important to develop contextual plans to deal with them in a timely,
systematic manner as they evolve.”[20]

53. A little later, a three-pronged strategy is advocated, namely, of
prevention, preparedness and mitigation rather than the erstwhile relief-
centric approach of the past. It is stated:

“The value of prevention, preparedness and mitigation is now gaining
recognition the world over. In India in particularly, after 2005, there
has been a paradigm shift from the erstwhile relief-centric response to a
proactive prevention, mitigation and preparedness-driven approach for
conserving developmental gains and also to minimize loss of life,
livelihood and property.”[21]

54. With regard to the ‘changing face’ of drought in India, the
Guidelines give the telling (and shocking) examples of Cherrapunji in
Meghalaya and Jaisalmer in Rajasthan and it is observed:
“The traditional approach to drought as a phenomenon of arid and semi-arid
areas is changing in India too. Now, even regions with high rainfall, often
face severe water scarcities. Cherrapunji in Meghalaya, one of the world’s
highest rainfall areas, with over 11, 000 mm of rainfall, now faces drought
for almost nine months of the year. On the other hand, the western part of
Jaisalmer district of Rajasthan, one of the driest parts of the country, is
recording around 9 cm of rainfall in a year.”[22]

55. This preliminary discussion is intended to indicate that a
declaration of drought is not a complicated affair but a manageable
exercise and an appropriate conclusion can be scientifically drawn with the
available data. Nevertheless, it is not a judicially manageable exercise
and no judicially acceptable standards can be laid down for declaring or
not declaring a drought. With this background and on the basis of the
information provided to us, it is necessary to see whether a possible
drought situation or a drought-like condition exists in Bihar and Haryana.
It may be recalled that Gujarat has declared a drought (or semi-scarcity as
Gujarat would like to 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 its comprehensive
affidavit, which contains the response of the State of Bihar.”
58. The reference to the affidavits filed by the Union of India arises
due to our direction given on 18th January, 2016. We had directed the
Secretary in the Department of Agriculture, Cooperation and Farmers Welfare
in the Union of India to convene a meeting of his counterparts in the
States to consider an effective response to the drought and a possible
drought situation in the country. Pursuant thereto, a meeting was convened
by the concerned Secretary on 25th January, 2016 with officers of the
Government of India and on 27th January, 2016 with officers of the State
Governments.
59. The response of Bihar in sum and substance, as regards the four
admitted key indicators, is that rainfall deficiency in the end of July
2015 was 30% and the deficiency had decreased to 20% by the end of August
2015 thereby implying that there is no rainfall deficit in Bihar (as
against the requirement of 50% deficit). Sowing of paddy crop was at 96.03%
and of maize at 89.62% at the end of August 2015 (as against the
requirement of 50%). Steps are taken to provide irrigation facilities
through tube-wells and canals to save the standing crops and a large amount
is distributed as diesel subsidy for the Kharif crop. In view of this, the
situation does not warrant a declaration of a drought.
60. Even a cursory evaluation of the information points to the fact that
(i) Bihar failed to take into consideration that a drought is not
necessarily a State-wide phenomenon and a declaration of drought might be
limited to a few areas. A drought might exist in a district or a sub-
division of a district such as a taluka, tehsil or block but not the entire
State. (ii) Bihar also failed to consider that the monitoring or the
possibility of a drought does not end in July or early August but continues
till the end of September and in some situations till the end of November.
The Guidelines provide that “To promote management of relief measures in
near real time it is necessary to declare early season drought by end of
July, mid season drought (growing season) by end of September and end
season by November.”[23] (iii) Before us, Bihar has completely ignored the
remaining two factors while taking a decision not to declare a drought,
namely, NDVI and MAI. The reason for the non-consideration of these
material indicators 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, Muzazffarpur, Purnia, Saharsa, Seohar, 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 not know the extent to which each
taluka, tehsil or block is affected in each of the 22 out of 38 districts
in Bihar. The Manual states (and the Manual is relied on by Bihar) that
“Rainfall is the most important indicator of drought. A departure in
rainfall from its long-term averages should be taken as the basis for
drought declaration.” How did this very crucial factor escape the attention
of the powers that be in Bihar?
63. As far as the area under cultivation is concerned, it is true that
the extent of area sown continues to exceed 50% of the total cultivable
area. Bihar must be credited for this, but that is not the only or the most
important factor to take into consideration for declaring or not declaring
a drought. Unfortunately, Bihar seems to be giving undue importance to this
one key indicator at the expense of the remaining three key indicators.
64. The third and fourth key indicators are NDVI and MAI. In this
regard, our attention was invited to a few pages of a monthly Report of
Agricultural Drought Assessment for Bihar for the month of August, 2015.
The Report is prepared by the Mahalanobis National Crop Forecast Centre
under the Ministry of Agriculture and Farmers Welfare. Reference was made
to the NDVI and the Normalized Difference Water Index (NDWI).[24] The
Report indicates that till August 2015 the vegetation condition is good in
the entire State except in a few districts that is between 0.61 and 0.52
(which is better than in the previous three years). Similarly, the NDWI
condition till August 2015 is good in the entire State except in a few
western and southern districts that is between 0.50 and 0.40 (which is
slightly poorer than in the previous three years). However, the “Vegetation
Condition Index (NDVI) shows fair or good vegetation condition in most part
of Bihar, while Vegetation Condition Index (NDWI) shows poor to slightly
poor moisture condition in large part of the state, particularly northern
region.” The summary points out that in August 2015 rainfall has been
normal to deficient except in Banka District; vegetation condition is good
in Eastern and Western Bihar while Northern and Southern Bihar have poor
vegetation condition; the moisture condition is good except in a few
districts of Northern Bihar, and 31 districts are categorized as normal
while 7 districts are under ‘watch’ category.
65. As mentioned above, 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.[25] 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
perennial Himalayan rivers. In view of the deficient rainfall, the
Department of Water Resources has made arrangements for irrigation through
canals, ponds and the Minor Irrigation Department has made arrangements
through public bore-wells. On an in-depth analysis, it is concluded by
Bihar that the situation does not warrant the declaration of drought.
68. On the basis of what has been told to us and the material referred
to by learned counsel for Bihar, two definite conclusions can be arrived
at: firstly, the information provided does not reflect the position on the
ground in districts or tehsils or blocks or talukas but is intended to
reflect the position in the entire State of Bihar. There is no reason why
relevant information at the micro level should be ignored. We have already
mentioned that drought conditions may exist in a taluka, tehsil or block
but not necessarily in the entire district or State and that is why micro
level information should be considered. Secondly, it is quite clear that:
(i) there is deficit rainfall (the deficit being more than 25%) for the
period June to September 2015 in 19 out of 38 districts in Bihar and this
gets progressively worse. If the coverage for the entire State is taken
into consideration then the deficit is to the extent of 27% and by 30th
October, 2015 the deficit goes up to 31%; (ii) the area under sowing is
considerable during June and July, 2015 but the status of the Kharif crop
thereafter, whether it is wilting due to deficit rain or low moisture or
there is an adequate network of canals, ponds and bore-wells is not
disclosed; (iii) the NDVI in August 2015 is generally good except in parts
of Bihar. The situation in the end of September 2015 and thereafter is not
known; and (iv) the MAI for Bihar shows that large areas in the State are
facing a moderate or mild drought as on 30th September, 2015.
69. Under the circumstances, it appears to us that there is more than
sufficient material to suggest that there is a perceptible threat of a mild
or moderate drought in some districts, tehsils, talukas or blocks of Bihar.
The unfortunate part of the exercise undertaken by us is that Bihar is in a
state of denial.
Declaration of drought in Gujarat
70. The State of Gujarat filed its first and only affidavit on 21st
April, 2016 just a few days before hearing concluded although during the
course of oral submissions 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 there were
five districts in East Central Gujarat, two districts in Saurashtra and six
districts in South Gujarat that received less than 50% rainfall. If the
rainfall data as on 30th September, 2015 is taken into consideration, the
district of Vadodara in East Central Gujarat has consistently received less
than 40% rainfall but that district has not been declared drought-hit. The
entire South Central Gujarat has received less than 75% rainfall and two
districts of Saurashtra have received less than 75% rainfall as also the
entire South Gujarat region. As per the information made available on
affidavit there is no doubt that every district in Central Gujarat and
South Gujarat has received inadequate rainfall while two districts of
Saurashtra are hit by inadequate rainfall.
74. Gujarat has constituted a Cabinet sub-Committee on 23rd September,
2015 to monitor the situation arising due to less than average rainfall in
the State. A district level and taluka level relief committee has also been
constituted for monitoring and implementation of measures to deal with
drought. Why was all this necessary if Gujarat was so well positioned in
terms of adequate rainfall?

75. Gujarat submits that on account of the satisfactory rainfall, the
normal crop sowing was to the extent of 99.70%. As far as agriculture
production is concerned, the advance estimate production for 2015-16, as
per the Agriculture Department of Gujarat is estimated to be 95% of the
average crop yield for major crops. This might be true. But, Gujarat
considers scarcity/semi-scarcity on the basis of annewari (crop cutting
procedure) as per the provisions of the Gujarat Relief Manual.
76. On completion of the annewari process, it appears that the Cabinet
sub-Committee met in the end of March 2016 (it might have met earlier also)
and took a decision with regard to declaring a drought. The Cabinet sub-
Committee appears to have found that there is no village falling below 4
annas (out of 12 annas and not 16 annas) where mandatory scarcity is
required to be declared in terms of the Gujarat Relief Manual.
Notwithstanding satisfactory rainfall and normal crop sowing, in 526
villages in three districts that is Rajkot, Jamnagar and Devbhoomi Dwarka
the agricultural output is between 4 annas and 6 annas.
77. Therefore, on a consideration of the available data, the Government
of Gujarat declared a drought 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. It is difficult to
understand why Gujarat could make an assessment only in March 2016 and not
months earlier as in Maharashtra.
80. As regards the third and fourth key indicators (NDVI and MAI)
Gujarat points out that NDVI needs to be applied in conjunction with other
indicators and there are large tracts of land in the State that are not
arable which adversely affects NDVI. The type of soil is also a relevant
consideration and despite many parts of the State being inundated with
water, MAI will be low due to the type of soil. This information is used by
Gujarat for justifying the annewari system which is said to be a time-
tested method of determining scarcity or drought. Consequently, both NDVI
and MAI have not been given any importance by Gujarat or in any event,
greater importance is given to the traditional annewari system of
assessment of crop production.
81. For this reason, we do not have the NDVI figures with us but the
petitioner has filed with the Final Rejoinder the MAI chart which indicates
that large tracts of Gujarat are facing a severe or moderate drought.[26]
82. In justification of not declaring a drought or a drought-like
situation, Gujarat says that it has taken steps to combat the probable
water crisis and the National and State Water Policy for drinking water has
been given the highest priority. It is further stated that South Gujarat
has perennial rivers namely Narmada and Tapi and Central Gujarat has the
perennial river Mahi. Gujarat has an extensive network of pipelines and
several water supply schemes based on these rivers and other rivers as also
water reservoirs and bore-wells. It is because of the river/canal
irrigation that there are a large number of bore-wells for irrigation and
both these regions have about 94% to 95% of crop sowing. There is adequate
food grain available including fodder for cattle and there is adequate
availability of drinking water.
83. The affidavit and contentions of Gujarat raise an extremely
important issue namely whether continued importance should be given to the
traditional method of drought assessment by following the annewari system
rather than rainfall deviation. The Manual prepared by Government of India
would like to discard the annewari system but Gujarat continues to hold on
to it. Gujarat might be justified in doing so (although we doubt it) but
perhaps some standardization on the 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.”[27]

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.”[28] (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, while those for Rabi crops are
available in March.

If drought is declared as late as December or January, relief works will
start only after such a declaration. It will be too late if the distress
signals have appeared in the wake of rainfall deficiency. Also if the
drought is declared in January or February, the Central Team would visit
much after the crop is harvested and it would not be in a position to
assess crop losses. To promote management of relief measures in near real
time it is necessary to declare early season drought by end of July, mid
season drought (growing season) by end of September and end season by
November.”[29]

85. The system followed by Gujarat clearly does not meet with the
approval of the Manual or the Guidelines. As noticed above, drought was
declared in 526 villages in Gujarat only on 1st April, 2016 and in 468
villages thereafter. As per the Manual and the Guidelines this is clearly
too late for those in distress. The purpose of an early declaration of
drought is preventive, but the route taken by Gujarat is palliative and
relief centric. Risk assessment and risk management gives way, in Gujarat,
to crisis management. This is hardly of any advantage to those whose
distress can be avoided.
Declaration of drought in Haryana
86. The State of Haryana filed an affidavit only on 21st April, 2016.
According to learned counsel for Haryana deficit rainfall for June and July
2015 is minus 12.6% and for the calendar year 2015 the deficit rainfall is
minus 16.4%. However, there is sufficient coverage under irrigation
through tube-wells and canals in Haryana and as such a declaration of
drought is not warranted.
87. However, for the period June to September 2015 there is more than
25% deficit rainfall in 11 out of 21 districts of Haryana. These districts
are: Bhiwani, Palwal, Fatehabad, Hissar, Jind, Kaithal, Mohendergarh,
Panchkula, Panipat, Rohtak and Sirsa with Ambala on the borderline. As far
as the entire State is concerned, the rainfall deficit is minus 28.8% for
the period June to September 2015. In terms of deficit rainfall there is
most certainly a drought-like situation in Haryana.
88. With regard to the extent of sowing it is stated that there is an
increase in the total area sown during Kharif 2015 as against Kharif 2014.
Haryana says that food grain production has been adequate and there is no
district including 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 for the situation on the ground.
91. The petitioner has placed before us the MAI for Haryana ending 30th
September, 2015[30]. A perusal of the chart indicates that (frighteningly)
most of Haryana is in the grip of a severe or moderate or mild drought. But
Haryana also banks upon other factors for not declaring a drought, such as:
Extent of fodder supply and its prevailing prices compared to normal
prices;
Position regarding drinking water supply;
Demand for employment on public works, and unusual movement of labour in
search of employment;
Current agricultural and non-agricultural wages compared with normal times;
Supply of food grains, and price situation of essential commodities, could
be applied by the State, in combination for drought declaration.

92. We make no comment on the view expressed by Haryana except to say
that the disparity in the methodology of assessment of a drought or a
drought-like condition between the Government of India and Haryana is quite
stark.
Discussion and Conclusions
93. Each of the three States that we are concerned with have their own
unique method of determining whether there is a drought or not. According
to the learned Additional Solicitor General the Manual and the Guidelines
are indicative and not mandatory. The third affidavit of the Union of India
complicates the matter by introducing the concept of ‘federalism’ that is
the relationship between the Union and the States with respect to drought.
The ostensible purpose of introducing this concept is to enable the Union
of India to wash its hands off in matters concerning drought declaration
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.
Since this is of some significance, the view expressed by the Union of
India is reproduced below:
“14. In reply to para 7 & para 17 of the revised note it is submitted
that the petitioner has stated that Union of India and 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-à-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 binding guidelines for all states to declare
drought. It may also be pointed out that the states are as much concerned
about the welfare of the people on whose mandate they have come to power
and it will not be proper on the part of the Central Government to sit in
judgment on their decisions or to frame guidelines which are binding on
them. Further, both the central and state government have to work as a
team and supplement the effort of each other so as to provide necessary
relief to the people.

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.”

94. In light of this, the question that we had raised earlier remains to
be answered: Where does the buck stop? The Disaster Management Act, 2005
places considerable responsibility on the Union of India in matters
pertaining to disasters. This begins with the formulation of a National
Plan. The Union of India is expected to make available its vast expertise
and database in leading (and not merely guiding) the State Governments in
the right direction. The final decision to declare a drought is of the
State Government but the resources available with the Union of India can be
effectively used to assist the State Governments in having a fresh look
into the data and information and to arrive at the correct decision in the
interest of the affected people of the State. It cannot totally wash its
hands off on issues pertaining to Article 21 of the Constitution but at the
same time, we do not suggest that the authority of the State Government to
declare a drought or any other similar power is diluted. The Union of India
has certainly to maintain a delicate and fine balance between federalism
and its constitutional responsibility, and that it must do, otherwise it is
ultimately the common person who will suffer and be in distress because of
a situation not of his or her making.
95. What are the figures being discussed in this case? From the
documents filed by the Union of India (on our asking) 11 out of 29 States
in the country (now including Gujarat) have declared a drought. 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.[31]
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, as per the assessment of the State
Government. Can we afford to ignore the plight of such a large population?
97. The timing of the declarations by the various States is also
significant. The ten respondent States that have declared a drought and
completed their assessment exercise between August 2015 and December 2015.
On the other hand and inexplicably Gujarat began its exercise only in March
2016. The Manual mentions that the final figures of the Kharif crop are
available in December. There is therefore no reason to delay the assessment
exercise till March of the following year. The adverse or negative impact
of a delayed declaration of drought affects the common person, particularly
women and children, and postpones the assistance that is needed. It also
puts an undue strain on the resources of the State Government and the
Government of India. All in all, a delayed declaration is of no assistance
to anybody whatsoever and the consequences thereof are mentioned in the
Manual and adverted to above.
98. We have been informed by the learned Additional Solicitor General
that on its part, the Government of India does issue regular advisories to
the State Governments but that they have to take the final decision in the
declaration of a drought. Maybe the issuance of advisories is an adequate
response to an impending crisis but maybe it is not. That is a call that
the Government of India will have to take, but whatever view is taken by
the Government of India, it must appreciate that as far as a response to a
disaster is concerned the approach of the Union of India should be small-
minded in certain respects but financially liberal. It is true that
provision for finances has been made in the National Disaster Response
Fund, but whether that is adequate and releases are timely is not an issue
before us. In any event, in view of the provisions of the Disaster
Management Act, 2005 the buck will eventually stop with the Government of
India.
99. Towards the fag end of the hearing of the case, Mr. Prashant Bhushan
learned counsel for Swaraj Abhiyan presented the Agricultural Drought
Assessment Report for October 2015. We are told that a similar report is
usually prepared every month and distributed to all concerned. The report
shown to us is prepared by the Mahalanobis National Crop Forecast Centre
and the National Remote Sensing Centre, ISRO, Department of Space 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:
|STATE |Normal |Mild |Moderate |
|Bihar |23 |15 |00 |
|Gujarat |07 |16 |03 |
|Haryana |09 |08 |04 |
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:
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 cadre strength.
As mandated by Section 47 of the Disaster Management Act, 2005 a National
Disaster Mitigation Fund is required to be established. Unfortunately, no
such Fund has been constituted till date. Accordingly, we direct the Union
of India to establish a National Disaster Mitigation Fund within a period
of three 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. Such a National Plan has not been
formulated over the last ten years, although a policy document has been
prepared. We can appreciate that the formulation of a National Plan will
take some time but surely ten years is far too long for such an exercise.
Accordingly we direct the Union of India to formulate a National Plan in
terms of Section 11 of the Disaster Management Act, 2005 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. We direct that the
Manual be revised and updated on or before 31st December, 2016. While
revising and updating the Manual, the Ministry of Agriculture in the Union
of India should take into consideration the following factors apart from
others:
(i) Weightage to be given to each of the four key indicators should be
determined to the extent possible. Although the Manual states that
rainfall deficit is the most important indicator, State Governments seem to
be giving greater weightage to the area of crop sown out of the cultivable
area and not to rainfall deficit. For this reason, necessary weightage is
required to be given to each key indicator.
The time limit for declaring a drought should be mandated in the Manual.
Although it is stated in the Manual that the best time to declare a
drought, if necessary, is October, we find that some States have declared a
drought in November and December and in the case of Gujarat in April of the
following year. Obviously this is far too late. The impact and effect of
a late declaration of drought has already been mentioned in the Manual and
it is not necessary to repeat it. Hence the necessity of a timely
declaration.
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.
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 situation exists.
Similarly, due to a lack of standardization in the annewari system of crop
assessment, Gujarat takes 4 annas out of 12 annas as a base for determining
if there is a drought-like situation. In areas where the crop cutting is
between 4 annas and 6 annas, there is discretion in the State Government to
declare or not to declare a drought. On the other hand, Maharashtra uses
50 paise as the standard the annewari system for declaring a drought.
There ought to be some standardization so that each State does follow its
own methodology in declaring or not declaring a drought.
5. 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. Innovative methods of water
conservation, saving and utilization (including ground water) should be
seriously considered and the experts in the field should be associated in
the exercise. Illustratively, dry land farming, water harvesting, drip
irrigation etc. could be considered amongst other techniques.
6. 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.
There is no need to continue with colonial methods and manuals that follow
a colonial legacy. It is high time that State Governments realize the vast
potential of technology and the Government of India should insist on the
use of such technology in preparing uniform State Management Plans for a
disaster.
7. 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 within a week with the Chief Secretary of Bihar,
Gujarat and Haryana to review the apparent drought situation with all the
available data and if so advised persuade the State Government to declare a
drought in whichever district, taluka, tehsil or block is necessary. It
should be emphasized that there is no loss of face or prestige or dignity
in the State Government declaring a drought if it is warranted, although
succour to the distressed might be too late in the day. The Secretary in
the Department of Agriculture, Cooperation and Farmers Welfare in the Union
of India might also consider convening a meeting of the National Executive
Committee and issue directions, if necessary, to the States of Bihar,
Gujarat and Haryana and their Authorities in response to any threatening
disaster situation or disaster.
8. Humanitarian factors such as migrations from affected areas, suicides,
extreme distress, the plight of women and children are some of the factors
that ought to be kept in mind by State Governments in matters pertaining to
drought and the Government of India in updating and revising the Manual.
Availability of adequate food grains and water is certainly of utmost
importance but they are not the only factors required to be taken note of.

……………………..J(Madan B. Lokur)

……………………J(N.V. Ramana)
New Delhi;
May 11, 2016

———————–
[1] (2015) 2 SCC 130
[2] (1988) 4 SCC 226
[3] The Hamlyn Lectures, Fifty-fifth Series, 2003
[4] Page 13 and 14 of the Manual for Drought Management
[5] Pages 4 to 6 of the Manual
[6] Section 2 of the Manual
[7] Page 49 of the Manual. Emphasis has been supplied by us.
[8] Page 38 of the Manual
[9] Page 38 of the Manual
[10] Page 38 and 39 of the Manual
[11] Page 39 of the Manual
[12] Section 2 of the Manual
[13] Pages 47 and 48 of the Manual
[14] Page 49 of the Manual
[15] Page 50 of the Manual
[16] Page 51 of the Manual
[17] Page 51 and 52 of the Manual
[18] Page 53 and 54 of the Manual
[19] National Disaster Management Guidelines: Management of Drought. A
publication of the National Disaster Management Authority, Government of
India. ISBN 978-93-80440-08-8, September 2010, New Delhi.
[20] Page xvii of the Guidelines
[21] Page 1 of the Guidelines
[22] Page 2 of the Guidelines
[23] Page 27 of the Guidelines
[24] Higher values of NDWI signify more surface wetness.
[25] Source: http://bhuvan.nrsc.gov.in
[26] Source: http://bhuvan.nrsc.gov.in
[27] Page 47 of the Manual
[28] Page 55 of the Manual
[29] Page 27 of the Guidelines
[30] Source: http://bhuvan.nrsc.gov.in
[31] Page 51 of the Manual

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