Drought; Swaraj Abhiyan Vs. Union of India [11-05-2016] SC

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

(Madan B. Lokur) and (N.V. Ramana) JJ.

May 11, 2016

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 ostrichlike 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 “semiscarcity” 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, (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:-