TaxTMI 
TaxTMI 
2016 (5) TMI 1459
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....his 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 con....
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.... 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. ....
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....ril, 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 ....
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.... 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"1 with reference to our country as follows: The acute needs o....
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....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....
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....lan 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....
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....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 Fu....
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....eorological 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 subsurface 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 ....
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....ision 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.6 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.7 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 ....
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....om 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 (t....
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.... 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.15 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 b....
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....almer 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.20 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 Gu....
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....ells 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."21 (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 thes....
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....griculture and Farmers Welfare. Reference was made to the NDVI and the Normalized Difference Water Index (NDWI).22 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. ....
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....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 cou....
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.... 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 Gujara....
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....rat 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 stan....
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....ly 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, Mahendragarh, 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 d....
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....mining 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....
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....ers. 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 ....
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....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....
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....es, 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. (ii) 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....