# SWARAJ ABHIYAN - (I) v. UNION OF INDIA & ORS

- **Citation:** [2016] 9 S.C.R. 257
- **Court:** Supreme Court of India
- **Decided:** 2016
- **Bench:** Madan B. Lokur, N.V. Ramana
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/swaraj-abhiyan-i-v-union-of-india-ors-31463
- **Pages:** 38

## Headnote

Public interest litigation - Non-disclosure of full facts about
the drought like situation or drought by the States of Bihar, Gujarat
and Haryana - Said issue matter of grave humanitarian distress -
C
· Writ petition filed seeking declaration of drought in some districts
or parts thereof in nine States - Also sought direction to declare
drought in most parts of the State of Bihar, Gujarat and Haryana
and to provide essential relief and compensation to people affected
by drought - Held: Each of the three States-Bihar, Gujarat and
Haryana have their own unique method of determining whether D
there is a drought or not - Final decision to declare drought is of
the State Government but the resources available with the Union of
India can be effectively used to assist the State Governments - Union
of India to maintain a delicate and fine balance between federalism
and its constitutional responsibility - Strong case made out for
E
reconsidering the declaration of a drought in Bihar and Haryana
and in more parts of Gujarat - Delayed declaration of drought
affects common person - Several districts in the three States facing
varying degrees of drought, however, no preparatory steps taken
to tackle a possible disaster - Due to ostrich-like attitude of the
State Governments, this Court compelled to make comment about
F
their concern - Issuance of certain directions - Union of India to
constitute a National Disaster Response Force as also to establish
a National Disaster Mitigation Fund within the stipulated period -
Union of India to formulate a National Plan at the earliest and with
immediate concern as also update and revise the Drought
G
Management Manual - Government of India to insist 011 the use of
modern technology to make an early determination of a drought or
a drought like situation - Officials lo 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 - State Government to keep in mind the
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SUPREME COURT REPORTS
[2016] 9 S.C.R.
A
humanitarian factors in matters pertaining to drought and
Government of India in updating and revising the Manual - Disaster
Management Act, 2005 - ss. 36, 44, 47, 48, 11 - Constitution of
India - Art. 32.
Public interest litigation - Entertaining of PIL - Instant writ
B
petition pertaining to declaration of drought like situation or drought
by the States of Bihar, Gujarat and Haryana - Said matter is of
grave humanitarian distress - Petition to be treated as one filed in
public interest and not to be taken as an adversarial contest - Over
the years, public interest litigation appears to be degenerating into
C
a no-holds barred adversarial litigation, which it is not meant to be
- Public interest litigation is necessary in a welfare State - Welfare
State cannot function effectively if it cannot hear to the
underprivileged and needy people - Public interest litigation
presents the Court with an issue based problem concerning society
- Solutions to the problem within the legal framework and the
D directions are described as judicial activism - Judicial activism.
E
Gaurav Kumar Bansal v. Union of India (2015) 2 SCC
130 : 2014 (7) SCR 725; Sheela Barse v. Union of India
(1988) 4 SCC 226 : 1988 (2) Suppl. SCR 643 - referred
to.
Case Law Reference
2014 (7) SCR 725
1988 (2) Suppl. SCR 643
referred to
referred to
Para 13
Para 14
CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.
F
857of2015.
Under Article 32 of the Constitution oflndia.
Prashant Bhushan, Ro hit Kr. Singh, Govind Jee, 0. Kuttan, Ad vs.,
for the Petitioner.
G
P.S. Narasimha, Tushar Mehta, ASGs, Aj it Kumar Sinha, Sr. Adv.,
-..: Anil Grover, Irshad Ahmad, AAGs, Mukul Singh, Irhan George, Ajay
Sharma, Sridhar Potaraju, B.K. Satija, Neeraj Kumar Sharma, Guntur
Prabhakar, Ms. Prerna Singh, Gopal Singh, Mani sh Kumar, A.P. Mayee,
Ms. Shashi Juneja, A. Selvin Raja, Ms. Hemantika Wahi, Kabir Hathi,
Ms.

## Text

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[2016] 9 S.C.R. 257
SWARAJ ABHIYAN - (I)
v.
UNION OF INDIA & ORS.
(Writ Petition (Civil) No. 857of2015)
A
MAYll,2016
B
(MADAN B. LOKUR AND N.V. RAMANA, JJ.]
Public interest litigation - Non-disclosure of full facts about
the drought like situation or drought by the States of Bihar, Gujarat
and Haryana - Said issue matter of grave humanitarian distress -
C
· Writ petition filed seeking declaration of drought in some districts
or parts thereof in nine States - Also sought direction to declare
drought in most parts of the State of Bihar, Gujarat and Haryana
and to provide essential relief and compensation to people affected
by drought - Held: Each of the three States-Bihar, Gujarat and
Haryana have their own unique method of determining whether D
there is a drought or not - Final decision to declare drought is of
the State Government but the resources available with the Union of
India can be effectively used to assist the State Governments - Union
of India to maintain a delicate and fine balance between federalism
and its constitutional responsibility - Strong case made out for
E
reconsidering the declaration of a drought in Bihar and Haryana
and in more parts of Gujarat - Delayed declaration of drought
affects common person - Several districts in the three States facing
varying degrees of drought, however, no preparatory steps taken
to tackle a possible disaster - Due to ostrich-like attitude of the
State Governments, this Court compelled to make comment about
F
their concern - Issuance of certain directions - Union of India to
constitute a National Disaster Response Force as also to establish
a National Disaster Mitigation Fund within the stipulated period -
Union of India to formulate a National Plan at the earliest and with
immediate concern as also update and revise the Drought
G
Management Manual - Government of India to insist 011 the use of
modern technology to make an early determination of a drought or
a drought like situation - Officials lo 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 - State Government to keep in mind the
H
257
258
SUPREME COURT REPORTS
[2016] 9 S.C.R.
A
humanitarian factors in matters pertaining to drought and
Government of India in updating and revising the Manual - Disaster
Management Act, 2005 - ss. 36, 44, 47, 48, 11 - Constitution of
India - Art. 32.
Public interest litigation - Entertaining of PIL - Instant writ
B
petition pertaining to declaration of drought like situation or drought
by the States of Bihar, Gujarat and Haryana - Said matter is of
grave humanitarian distress - Petition to be treated as one filed in
public interest and not to be taken as an adversarial contest - Over
the years, public interest litigation appears to be degenerating into
C
a no-holds barred adversarial litigation, which it is not meant to be
- Public interest litigation is necessary in a welfare State - Welfare
State cannot function effectively if it cannot hear to the
underprivileged and needy people - Public interest litigation
presents the Court with an issue based problem concerning society
- Solutions to the problem within the legal framework and the
D directions are described as judicial activism - Judicial activism.
E
Gaurav Kumar Bansal v. Union of India (2015) 2 SCC
130 : 2014 (7) SCR 725; Sheela Barse v. Union of India
(1988) 4 SCC 226 : 1988 (2) Suppl. SCR 643 - referred
to.
Case Law Reference
2014 (7) SCR 725
1988 (2) Suppl. SCR 643
referred to
referred to
Para 13
Para 14
CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.
F
857of2015.
Under Article 32 of the Constitution oflndia.
Prashant Bhushan, Ro hit Kr. Singh, Govind Jee, 0. Kuttan, Ad vs.,
for the Petitioner.
G
P.S. Narasimha, Tushar Mehta, ASGs, Aj it Kumar Sinha, Sr. Adv.,
-..: Anil Grover, Irshad Ahmad, AAGs, Mukul Singh, Irhan George, Ajay
Sharma, Sridhar Potaraju, B.K. Satija, Neeraj Kumar Sharma, Guntur
Prabhakar, Ms. Prerna Singh, Gopal Singh, Mani sh Kumar, A.P. Mayee,
Ms. Shashi Juneja, A. Selvin Raja, Ms. Hemantika Wahi, Kabir Hathi,
Ms. Puja Singh, Ms. Noopur Singhal, Manan, Dr. Monika Gusain, Tapesh
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SWARAJ ABHIYAN - (I) v. UNION OF INDIA & ORS.
259
Kumar Singh, Kumar Anurag Singh, Mohd. Waquas, Shashank Singh,
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V. N. Raghupathy, C. D. Singh, Ms. Sylona Mohapatra, Udit Arora,
Nishant R. Katneshwarkar, Sibo Sankar Mishra, Umakant Mishra,
S. Udaya Kumar Sagar, Krishna Kumar Singh, Upendra Mishra, Vinay
Garg, Advs., for the Respondents.
The Judgment of the Court was delivered by
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MADAN B. LOKUR, J.
Lokmanya Tilak said:
"The problem is not lack ofresources or capability, butthe 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
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full facts about the prevailing conditions in these States. A candid
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admission does not imply a loss of face or invite imputations ofineffective
governance- it is an acknowledgement ofreality. An ostrich-like attitude
is a pity, particularly since the persons affected by a possible droughtlike 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 ofan 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
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be so declared. The failure of these States to declare a drought (if indeed
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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 oflndia has introduced
the concept of 'federalism' and canvasses the view that a disaster
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[2016] 9 S.C.R.
A requires the Union oflndia 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.
B
c
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 tis 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
S. The petitioner Swaraj Abhiyan has filed this public interest
D petition under Article 32 of the Constitution. Before taking up the case
for final Ii.earing, 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
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reasons: firstly, we were of the primafacie 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
primafacie 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
G 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 oflndia.
According to Swaraj Abhiyan drought ought to be declared in most parts
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SWARAJ ABHIYAN • (I) v. UNION OF INDIA & ORS.
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[MADAN B. LOKUR, J.]
of the respondent States ofBihar, Gujarat and Haryana. It has, therefore, A
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.
B
7. The petitioner has also prayed that all the respondents before
us (13 in number including the Union oflndia) 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 C
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 NREGAAct"). 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 D
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
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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 forthe 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
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on record. This has been supplemented by a detailed document styled as
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a 'Final Rejoinder' which is really an aggregation of the submissions
made on behalf of the petitioner.
I 0. The Union of India has filed a counter affidavit on or about
15"' January, 2016, an additional affidavit on or about JO•h February, 2016
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(the first affidavit), another additional affidavit on or about I 9'h 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 ] ] 'h 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
State.s 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 oflndia.
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 I11dia
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 oflife 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 ofits citizens as parent particularly when citizens
are not in a position to protect themselves. The Preamble
• (2015) 2 sec 130
SWARAJ ABHIYAN - (I) v. UNION OF INDIA & ORS.
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[MADAN B. LOKUR, J.]
to the Constitution, read~ with directive principles, under
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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
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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 Sltee/a Barse v. Union
of India2 this Court held that public interest litigation is intended to prevent
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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
'(1988) 4 sec 226
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in his Hamlyn Lecture "Judicial Activism -Authority, Principle and Policy
in the Judicial Method"3 with reference to our country as follows:
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"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 publjc
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 ifthat Court was to perform its
essential role in Indian society, it had no option but to
adopt the course it did and l 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
3 The Hamlyn Lectures. Fifty-fifth Series, 2003
SWARAJ ABHIYAN - (I) v. UNION OF INDIA & ORS.
[MADAN B. LOKUR, J.]
law-making organs of government, will sometimes approach
the judicial branch for what is in effect a new rule .. They
will seek a new Jaw 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?"
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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
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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
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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 2J'd December, 2005.
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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
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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."
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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
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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
c prevention of danger or threat of any disaster and mitigation or reduction
of risk of any disaster or its severity or consequences.
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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 oflndia and
SWARAJ ABHIYAN - (I) v. UNION OF INDIA & ORS.
267
[MADAN B. LOKUR, J.]
to lay down guidelines for and give directions to the State Government
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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
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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 c
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
D.
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
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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
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any threatening disaster situation or disaster. The NDRF shall be credited
with an amount by the Government oflndia after due appropriation made
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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
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A imposed on specified goods under the Central Excise Act and the Customs
Act. In addition to this, the Government oflndia also releases funds for
the NDRF.
31 . Section 4 7 of the DM Act provides for the constitution of a
National Disaster Mitigation Fund for projects exclusively for the purposes
B 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 l 0 years, the
National Disaster Mitigation Fund has not yet been constituted. There
is, therefore, no provision for the mitigation of a disaster.
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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
oflndia has not established the National Disaster Mitigation Fund, it is
D unlikely that the State Governments or the District Administration would
have set up such Mitigation Funds.
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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 ofa 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 oflndia and ad hoc measures and knee jerk reactions are
G the order of the day and will continue to be so until the provisions of the
Disaster Management Act are faithfully implemented.
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36. We are also quite surprised that the National Disaster Mitigation
Fund has not yet been set up even after I 0 years of the enforcement of
the OM Act. Risk assessment and risk management also appear to have
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[MADAN B. LOKUR, J.]
little or no priority as far as the Union oflndia and the State Governments
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are concerned.
3 7. 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
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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 oflndia. The second important
document is the National Disaster Management Guidelines for c
Management of Drought (for short "the Guidelines") prepared in
September 20 I 0 by the National Disaster Management Authority of the
Government oflndia. According to the Union oflndia, 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.
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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.
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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
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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:
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"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."'
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41. In this context, the Manual promotes a new system of drought
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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.
' Page I 3 and I 4 of the Manual for Drought Management
SWARAJ ABHJYAN - (I) v. UNION OF INDIA & ORS.
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[MADAN B. LOKUR, J.]
2. Focus on mitigation measures.
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3. Adopt newer technologies.
4. Adapt to the new legal framework.
5. Include employment and area development programmes in
drought mitigation.
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6. Prescribe standardized steps for management at the national/
central level.;
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."'
Rainfall: The Indian Meteorological Department (IMD) and State
Governments collect data on rainfall every day during the rainy season.
According to the !MD, drought sets in when the deficiency ofrainfall at
a meteorological sub-division level is 25 per cent or more of the LongTenn Average of that sub-division for a given period. The drought is
considered "moderate", ifthe 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
' 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.
' Page 38 of the Manual
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regular basis, these could provide accurate information on water
shortages. The Central Water Commission maintains data on water
levels in 8 l 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. Ifthe 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.'" 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
9 Page 38 of the Manual
10 Page 38 and 39 of the Manual
11 Page 39 of the Manual
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SWARAJ ABHJYAN - (I) v. UNION OF INDIA & ORS.
[MADAN 8. LOKUR, J.]
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, tlte extent of area sown, normalized
difference vegetation index and moisture adequacy
index are recommended as the four standard monitoring
tools whic/i could be applied in combinatio11for drought
declaration. Since lite information 011 these indicators
a11d indices are available at the level of Taluka /Tehsi/
I Block, drought may be declared by the State
Govemme11t at the level of these admillistrative units
011 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 I guideli1;es
should replace the present system of drought declaration
that is based on rainfall deficiency and reduction in
annewari I paisewari I girdawari figures." 13
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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 E
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 IMO and also collect data
through its own network of weather stations. This rainfall data may be
applied in two ways:
I. 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
" Pages 4 7 and 48 of the Manual
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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
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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
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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.