Swaraj Abhiyan v. Union Of India And Others

Order dated 18-1-2016

(Before Madan B. Lokur and R.K. Agrawal, JJ.)

Writ Petition (Civil) No. 857 of 2015

1. Application for impleadment is allowed. We have heard the learned counsel for the parties.

2. Mr Prashant Bhushan, learned counsel appearing on behalf of the petitioner has made several suggestions which are as follows:

2.1. Rainfall data may be examined by the States of Uttar Pradesh, Madhya Pradesh, Karnataka, Andhra Pradesh, Telangana, Maharashtra, Gujarat, Odisha, Jharkhand, Bihar, Haryana and Chhattisgarh for the purposes of considering whether drought should be declared in some districts or blocks or mandals or tehsils or villages as the case may be in the respective State;

2.2. The National Food Security Act, 2013 should be implemented with a broad interpretation being given thereto;

2.3. Protein should be made available in the drought hit areas preferably through supply of dal at 2 kg per month per family;

2.4. Edible oil should be supplied at 1 kg per month per family in the drought-affected areas;

2.5. Either egg or milk should be made available for children under the Mid-Day Meal Scheme;

2.6. The Mahatma Gandhi National Rural Employment Guarantee Act, 2005 should be effectively implemented more particularly in drought-affected areas.

3. In our opinion, in the first instance, it may be more appropriate if the Secretary, Department of Agriculture and Farmers' Welfare, Government of India calls a meeting of his counterparts in the aforementioned States to discuss these issues as well as seven other below mentioned issues which have been handed over by Mr Prashant Bhushan to the learned Solicitor General:

3.1. Does the Union of India and the States have requisite officials and committees for drought management as per the Manual for Drought Management (MDM), p. 95? Did they formulate a contingency plan and contingent crop plan this year as per MDM (pp. 59-61)? What steps have been taken by the Ministry of Agriculture for coordination of drought management by all States (as per MDM, pp. 94-95)?

3.2. What are the measures taken by the Government for managing water resources in the drought-affected areas including policy for use of reservoir storage (as per MDM, p. 71), repair and augmentation of all existing water supply schemes (as per MDM, p. 71, details as per Form 11 Annexure 1 of MDM) and other emergency measures for supply of drinking water (as per MDM, pp. 75-77)?

3.3. Has the Government initiated special relief employment programmes including Mnregs for drought-affected areas (as per MDM, pp. 64-67)? If so, please provide details of demand for relief employment, number of relief works on shelf, number of works in progress, attendance of workers, wages, distributed so far.

3.4. Has the Government implemented the National Food Security Act in the State? Has it taken any special steps to monitor food availability (as per MDM, p. 78, started community kitchens (MDM, p. 81) and provided additional items like dal and edible oil in the drought-affected areas? Has the Government augmented the Integrated Child Development Service and Mid-Day Meal Scheme (MDM, pp. 80-81) to meet the nutritional requirements of children in the drought-affected areas?

3.5. What are the plans of the Government for managing availability of fodder, fodder prices, fodder cultivation, availability of water for fodder cultivation (MDM, pp. 87-90) in the drought-affected areas? Has the Government set up any cattle depots and cattle camps (MDM, p. 89) for this purpose and how much fodder has been supplied so far?

3.6. What relief has the Government announced for the drought-affected farmers in terms of land revenue, water and electricity dues, etc. (MDM, pp. 85-86) and restructuring of bank loans for affected farmers as per the circular of Reserve Bank of India (RBI/2014-15/512 dated 25-3-2015)?

3.7. Have the States released agricultural input grant to affected farmers as per the norms set by the Government of India (as per MHA Circular No. 32-7/2014-NDM-1 dated 8-4-2015)?

4. The Secretary should inform us and the learned Solicitor General the earliest date on which the meeting can be called to discuss the aforesaid issues and measures to alleviate the problems of people in the drought-affected areas and also to discuss the issues that have been raised and suggestions made. For this purpose, we adjourn the matter to 22-1-2016 to enable the learned Solicitor General to obtain instructions.

5. In the meanwhile, a copy of this order may be handed over to the Standing Counsel of the aforesaid States and the aforesaid States may provide necessary information to the Secretary, Ministry of Agriculture and also seriously consider implementation of the measures that have been suggested which we prima facie feel would go a long way in alleviating the problems in the drought-affected areas more particularly with regard to the supply of protein, edible oil, egg or milk and implementation of the provisions of the National Food Security Act, 2013 and the Mahatma Gandhi National Rural Employment Guarantee Act, 2005.

6. List the matter on 22-1-2016. States that have not filed their response may do so within two days.

Judgment dated 11-5-2016

Swaraj Abhiyan (I)

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

Writ Petition (Civil) No. 857 of 2015

The Judgment of the Court was delivered by

Madan B. Lokur, J.— Lokmanya Tilak said:

“The problem is not lack of resources or capability, but the lack of will.”

8. 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 acknowledgment 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.

9. 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.

10. 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?

11. 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

12. 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 the learned counsel appearing on behalf of Swaraj Abhiyan whether the petitioner is a political party. We were informed that it is an unregistered non-governmental organisation and is not a political party. We put this question to the 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.

13. 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.

14. 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 Guarantee Scheme framed under the Mahatma Gandhi National Rural Employment Guarantee Act, 2005 (for short “the Nrega Act”). It has also prayed that foodgrains 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.

15. 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 subsidised cattle fodder.

16. 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, the 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.

17. The Union of India has filed a counter-affidavit on or about 15-1-2016, an additional affidavit on or about 10-2-2016 (the first affidavit), another additional affidavit on or about 19-3-2016 (the second affidavit), yet another additional affidavit on or about 28-3-2016 (the third affidavit which is in response to the Note) and an affidavit filed on or about 11-4-2016 (the fourth affidavit). The learned Additional Solicitor General also handed over (on our asking) some additional but relevant documents.

18. 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. The 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.

19. On the commencement of hearing, we made it very clear to the 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 the 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.

20. 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 para 8 of the Report:

“8. 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.”

21. There are occasions when people in disadvantaged situations are unable to have access to courts and therefore, to have access to justice 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 (1988) 4 SCC 226 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 para 11 of the Report:

“11. … 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.”

22. 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” 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 law-making by the other branches and departments of the 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 the 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 criticise it. C'est la vie!

23. Keeping this and the common Indian in mind, we have proceeded to hear and decide this petition and we acknowledge that the 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

24. 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 23-12-2005. 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.”

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.

25. 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. Section 2(e) of the DM Act defines “disaster management” as meaning a continuous and integrated process of planning, organising, 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. 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.

26. By virtue of Section 3 of the DM Act, a National Disaster Management Authority (for short “NDMA”) is required to be constituted and we are told that it has been constituted with the Prime Minister as the Chairperson ex officio. Section 6 of the DM Act provides for the powers and functions of 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.

27. Section 8 of the DM Act provides for the constitution of a National Executive Committee (for short “NEC”). In terms of Section 10 of the DM Act, NEC is required to assist NDMA in the discharge of its functions and has the responsibility of implementing the policies and plans of NDMA and to ensure compliance with directions issued by the Government of India for the purpose of disaster management in the country. It is also provided that NEC shall prepare a National Plan under Section 11 of the DM Act to be approved by NDMA. 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.

28. 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 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.

29. The National Plan prepared by NEC is required to be approved by 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 NEC.

30. 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:

30.1. 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 NDMA.

30.2. 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.

30.3. Section 46 of the DM Act provides for the establishment of a National Disaster Response Fund (for short “NDRF”) for meeting any threatening disaster situation or disaster. 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 NEC for meeting the expenses for an emergency response, relief and rehabilitation. We have been informed by the learned Additional Solicitor General that NDRF has been established and the funds of 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 NDRF.

30.4. 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.

30.5. 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.

31. 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.

32. 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.

33. 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. 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.

34. 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. 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?

35. 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.

36. 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.”

(emphasis supplied)

37. In this context, the Manual promotes a new system of drought management (different from the colonial model) broadly based on the following salient features:

1. Abandon the use of famine codes and varied State management plans.

2. Focus on mitigation measures.

3. Adopt newer technologies.

4. Adapt to the new legal framework.

5. Include employment and area development programmes in drought mitigation.

6. Prescribe standardised 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 the State Governments

38. According to the Manual, drought is monitored by the State Governments by obtaining information on four key indicators. They are: rainfall; storage water levels in reservoirs; surface water and groundwater 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. IMD (Indian Meteorological Department) can provide rainfall data to the State Government, which can also collect data through its own network of weather stations.”

(emphasis supplied)

38.1. Rainfall: The Indian Meteorological Department (IMD) and the State Governments collect data on rainfall everyday during the rainy season. According to IMD, drought sets in when the deficiency of rainfall at a meteorological sub-division level is 25% 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%, and “severe” if it is more than 50%.

38.2. Storage water levels in reservoirs: The State Governments collect data on the levels of stored water in important reservoirs through their Irrigation Departments. 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.

38.3. 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.

38.4. 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.

Monitoring of drought by scientists

39. Scientists utilise other indices to measure the intensity, duration and spatial extent of drought. These are: Aridity Anomaly Index; Standardised Precipitation Index; Palmer Drought Severity Index; Crop Moisture Index; Surface Water Supply Index; Normalised Difference Vegetation Index; Normalised 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 it 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, normalised 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.”

(emphasis supplied)

40. 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) Normalised 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

41. 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 IMD and also collect data through its own network of weather stations. This rainfall data may be applied in two ways:

41.1. 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.

41.2. 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.

Extent of area sown

42. 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.

43. 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.

Normalised Difference Vegetation Index (NDVI)

44. 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. We are primarily concerned with the drought-vulnerable States of Bihar, Gujarat and Haryana.

45. 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 abovementioned 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, NDVI value needs to be applied in conjunction with other indicators and values. NDVI must not be invoked for the declaration of drought in isolation from the other two key indicators.

Moisture Adequacy Index (MAI)

46. 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.

47. MAI values are critical to ascertain agricultural drought. The State Agriculture Department needs to calculate 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.

National Disaster Management Guidelines

48. 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 published by 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, characterised 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.”

49. 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 minimise loss of life, livelihood and property.”

50. 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.”

51. 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.

52. 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

53. The State of Bihar has filed two affidavits before us — one on or about 14-1-2016 and the other on or about 11-4-2016. 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.”

54. The reference to the affidavits filed by the Union of India arises due to our direction given on 18-1-2016. 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 Secretary concerned on 25-1-2016 with officers of the Government of India and on 27-1-2016 with officers of the State Governments.

55. 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 tubewells 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.

56. 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”.

(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.

57. What is more saddening is that the rainfall coverage report has been selectively adverted to for no apparent reason. While the State-wide rainfall deficit for June and July 2015 might have been 30%, the rainfall in June and July 2015 in ten districts, that is, Araria, East Champaran, Madhepura, Madhubani, Muzaffarpur, Purnia, Saharsa, Sheohar, Sitamarhi and Siwan was less than 50% the average rainfall. The coverage report clearly indicates that as on 30-9-2015 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 30-10-2015 three more districts that is Darbhanga, Jamui and Katihar have rainfall below 75% of the average, the overall State-wide deficit being 31%.

58. 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?

59. 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.

60. 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 NDVI and the Normalised Difference Water Index (NDWI). 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, 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 parts 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 categorised as normal while 7 districts are under “watch” category.

61. 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 the 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.

62. However, as far as MAI is concerned, the petitioner has annexed to the Final Rejoinder, MAI for Bihar. A perusal of this clearly shows that large swathes of Bihar are facing a moderate or mild drought as on 30-9-2015.

63. 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.

64. On the basis of what has been told to us and the material referred to by the 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 30-10-2015 the deficit goes up to 31%;

(ii) the area under sowing is considerable during June and July 2015 but the status of the kharif crops 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) 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) MAI for Bihar shows that large areas in the State are facing a moderate or mild drought as on 30-9-2015.

65. 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

66. The State of Gujarat filed its first and only affidavit on 21-4-2016 just a few days before hearing concluded although during the course of oral submissions by the learned counsel for Gujarat on 7-4-2016 some documents were handed over to us.

67. According to Gujarat, rainfall received was 61.9% of the average rainfall in the end of July 2015 and during the monsoon period of 2015-2016 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.

68. 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.

69. 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 30-9-2015 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.

70. Gujarat has constituted a Cabinet Sub-Committee on 23-9-2015 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?

71. 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 2015-2016, 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.

72. 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.

73. 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 1-4-2016. 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 standardisation in the nomenclature otherwise each State can use a different expression without admitting a drought.

74. 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.

75. 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 20-10-2015 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.

76. 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 affect 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.

77. For this reason, we do not have 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.

78. 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 foodgrain available including fodder for cattle and there is adequate availability of drinking water.

79. 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 the 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 standardisation on the part of the Government of India may be necessary in this regard.

80. 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.”

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.”

(emphasis in 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%, 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.”

81. 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 1-4-2016 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

82. The State of Haryana filed an affidavit only on 21-4-2016. According to the 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 tubewells and canals in Haryana and as such a declaration of drought is not warranted.

83. 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.

84. 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 foodgrain production has been adequate and there is no district including any deficit rainfall district where the area under sowing and average production of foodgrain is below 50%. In fact, overall there has been an increase in foodgrain production by 3.2% over Kharif 2014.

85. 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 Yamuna River. In addition, there are lakhs of tubewells and wells for irrigation purposes which ensure that 83% of the State is covered under irrigation through canals, tubewells and wells. There is no shortage of fodder or drinking water.

86. Under the circumstances, it is stated that there is no drought-like situation in Haryana. The concentration of Haryana is entirely on foodgrain production. Undoubtedly, there does appear adequate foodgrain productivity as far as the kharif crop is concerned. But there is no acknowledgment 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.

87. The petitioner has placed before us MAI for Haryana ending 30-9-2015. 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:

(i) Extent of fodder supply and its prevailing prices compared to normal prices;

(ii) Position regarding drinking water supply;

(iii) Demand for employment on public works, and unusual movement of labour in search of employment;

(iv) Current agricultural and non-agricultural wages compared with normal times;

(v) Supply of foodgrains, and price situation of essential commodities, could be applied by the State, in combination for drought declaration.

88. 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

89. 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 Paras 7 and 17 of the revised note, it is submitted that the petitioner has stated that the 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 recognises 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 10-2-2016 and 11-3-2016.”

90. 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.

91. 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 ⅓rd 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 most 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.

92. 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 ⅓rd of the districts in the country; the total population in the districts affected by drought is about 33 crores which is about ¼th 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 ⅓rd 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?

93. 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.

94. 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.

95. Towards the fag end of the hearing of the case, Mr Prashant Bhushan, the 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

96. 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

97. Keeping all the factors in mind we issue the following directions:

97.1. As mandated by Section 44 of the Disaster Management Act, 2005, a National Disaster Response Force with its own regular specialist cadre is required to be constituted. Unfortunately, no such force has been constituted till date. Accordingly, we direct the Union of India to constitute a National Disaster Response Force within a period of six months from today with an appropriate and regular cadre strength.

97.2. 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.

97.3. 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.

97.4. The Drought Management Manual is undoubtedly a meaningful and well-researched document. However, in view of the submissions made before us by the 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 31-12-2016. 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:

97.4.1. 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, the 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.

97.4.2. 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.

97.4.3. 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 minimised. This would certainly be in the interest of the people who face distress because of a drought or a drought-like situation.

97.4.4. The nomenclature should be standardised 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 standardisation 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 in the annewari system for declaring a drought. There ought to be some standardisation so that each State does follow its own methodology in declaring or not declaring a drought.

97.5. 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 utilisation (including groundwater) 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.

97.6. 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 the State Governments realise 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.

97.7. 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 emphasised 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.

97.8. 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 the State Governments in matters pertaining to drought and the Government of India in updating and revising the Manual. Availability of adequate foodgrains and water is certainly of utmost importance but they are not the only factors required to be taken note of.

Judgment dated 13-5-2016

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

Writ Petition (Civil) No. 857 of 2015

Swaraj Abhiyan (II)

The Judgment of the Court was delivered by

Madan B. Lokur, J.— In our judgment dated 11-5-2016 we had adverted to the drought or the drought-like conditions prevailing in several parts of our country and had issued certain directions for compliance. In this judgment, we will deal with the prayer made by the petitioner Swaraj Abhiyan relating to the implementation of the National Food Security Act, 2013 (for short “the NFS Act”).

Implementation of the National Food Security Act, 2013

99. It is submitted by the petitioner that it is necessary to ensure food security to the persons affected by the drought. In this regard, the petitioner made four suggestions and they are:

99.1. All households should be provided with 5 kg foodgrains per person per month irrespective of whether or not they fall in the category of priority households as defined in Section 2(14) of the NFS Act read with Section 10 thereof. The provision for foodgrains should be in addition to and not in derogation of any other entitlement in any other government scheme.

99.2. Households that do not have a ration card or family members left out of existing ration cards should be issued special and temporary coupons on production of an appropriate identity card or any other proof of residence.

99.3. Each household affected by the drought should be provided 2 kg of dal (lentil) per month at Rs 30 per kg and one litre of edible oil per month at Rs 25 per litre through the Public Distribution System. In this regard, reference was made to a similar scheme which is said to be working quite well in Tamil Nadu.

99.4. Children affected by the drought should be provided one egg or 200 gm of milk per day (6 days a week) under the Mid-Day Meal Scheme. In addition to this, the Mid-Day Meal Scheme should continue during the summer vacation period in schools so that children are not deprived of their meals, including eggs or milk, as the case may be.

100. The Union of India has explained in its response that in terms of Section 3 of the NFS Act the monthly entitlement of foodgrains is 5 kg per person for eligible households under “priority” category and 35 per kg per family under the Antyodaya Anna Yojna for rice, wheat and coarse grains. Coverage under the NFS Act has been delinked from poverty estimates and is substantially above the percentage of population living below the poverty line. It is submitted that coverage under the NFS Act has to be determined by each State and the criteria for identification of priority households and their actual identification is the responsibility of the State Government. It is further stated that the State Government is expected to digitise the beneficiary database and also set up a “grievance redressal mechanism”.

101. For implementation of the NFS Act, the State Government is required to complete all preparatory steps for which guidelines have been issued by the Government of India. In this context, it is stated that the implementation of the NFS Act has started in 32 States and Union Territories and as far as Gujarat is concerned it will implement the NFS Act from 1-4-2016. During the course of hearing, we were informed that thankfully Gujarat is now implementing the NFS Act.

102. It is also stated that since drought is a temporary phenomenon, additional foodgrains are made available on request basis from the State Government. It is further stated that for 2015-2016, only Maharashtra made a request for additional foodgrain allocation for drought-affected people and the Government of India made available 1.63 lakh tons of rice and 2.44 lakh tons of wheat, as requested.

103. With regard to the supply of dal/lentil and edible oils, it is stated by the Union of India that under the NFS Act there is no provision to supply these items. In the absence of sufficient domestic availability of these items, their supply under the Public Distribution System is difficult to ensure and there are fiscal constraints on stretching the food subsidy bill by including the supply of dal/lentil and edible oils. However, the State Governments are at liberty to distribute additional items out of their own resources. In fact, Andhra Pradesh, Chhattisgarh, Haryana, Karnataka and Telangana are distributing dal/lentil or edible oils to sections of society while Chhattisgarh is distributing chana (gram) in scheduled areas.

104. With regard to the Mid-Day Meal Scheme, it is stated by the Union of India that there is no special provision for the supply of eggs or milk but there is a requirement of minimum calorific and nutritional contents. These are as follows:

Components Primary Upper Primary Calories 450 Cal 700 Cal Protein 12 g 20 g Micronutrients Adequate quantities of micronutrients like iron, folic acid, Vitamin A, etc.

105. It is further stated by the Union of India that the menu under the Mid-Day Meal Scheme is locally decided and of the 12 States that we are concerned with, only 5 States, that is, Andhra Pradesh, Karnataka, Madhya Pradesh, Odisha and Telangana provide either eggs or milk under the Mid-Day Meal Scheme. According to Swaraj Abhiyan, additional or different items like chana (for example) is provided by 4 other States, Chhattisgarh, Gujarat, Jharkhand and Maharashtra. Admittedly, neither eggs nor milk nor any other additional item is provided by 3 States, that is, Bihar, Haryana and Uttar Pradesh.

106. With regard to continuing the Mid-Day Meal Scheme during the summer vacations in the drought-affected areas, the Union of India says that only 3 of the States that we are concerned with, that is, Karnataka, Maharashtra and Uttar Pradesh made such a proposal during 2015-2016 and that was sanctioned by the Performance Appraisal Board. As far as 2016-2017 is concerned, only Chhattisgarh, Karnataka and Madhya Pradesh have made a request and that is under consideration by the Performance Appraisal Board.

107. The monitoring and implementation of the NFS Act is really the duty and responsibility of the State Food Commission under Section 16 of the NFS Act. We are told that not every State has established such a Commission making it difficult for any corrective or remedial measures in respect of the review and implementation of the NFS Act. It is high time that the machinery under the NFS Act is put in place by all concerned otherwise the enactment of social justice legislations will have no meaning at all.

Discussion and conclusions

108. We are quite surprised that with regard to the implementation of the NFS Act, even though the statute was passed by Parliament and it extends to the whole of India and is deemed to have come into force on 5-7-2013, some States have not implemented it. As per the chart provided to us by the learned counsel for the petitioner in the Note, the State of Uttar Pradesh has partially implemented the NFS Act in the sense that it has been implemented only in 28 of its 75 districts. Gujarat has admittedly implemented the NFS Act only from 1-4-2016.

109. It is surprising that the implementation of a law enacted by Parliament such as the NFS Act is left to the whims and fancies of the State Governments, and it has taken more than two years after the NFS Act came into force for Gujarat to implement it and Uttar Pradesh has only implemented it partially. This is rather strange. A State Government, by delaying implementation of a law passed by Parliament and assented to by the President of India, is effectively refusing to implement it and Parliament is left a mute spectator. Does our Constitution countenance such a situation? Is this what “federalism” is all about? Deliberate inaction in the implementation of a parliamentary statute by a State Government can only lead to utter chaos or worse. One can hardly imagine what the consequence would be if a State Government, on a similar logic, decides that it will not implement other parliamentary statutes meant for the benefit of vulnerable sections of society. Hopefully, someone, somewhere, sometime will realise the possible alarming consequences.

110. We find force in the submission of the learned Additional Solicitor General that no mandamus can be issued by this Court to the State Governments to implement the NFS Act beyond what is required by the terms and provisions of the statute. In other words, it is not possible for us to issue a positive direction to the State Governments to make available to needy persons any item over and above what is mandated by the NFS Act, such as dal/lentil and edible oil (or any other item for that matter) to all households in the drought-affected areas. Today, Swaraj Abhiyan prays for the supply of dal/lentil and edible oils; tomorrow some other NGO might pray for the supply of some other items. This might become an endless exercise and would require us to go beyond what Parliament has provided. While this Court or any other constitutional court can certainly intervene, to a limited extent, in issues of governance it has also to show judicial restraint in some areas of governance, and this is one of them.

111. In State of H.P. v. Umed Ram Sharma (1986) 2 SCC 68 the High Court had treated a letter as a public interest petition received from some poor and mostly Harijan residents of a village complaining of the failure of the State Government to complete the construction of a road due to collusion between the residents of another village and the administrative authorities. The High Court heard the matter and gave directions, inter alia, for early completion of the road. This was challenged by the State before this Court. This Court took resort to Article 21 of the Constitution and observed that for residents of hilly areas, access to roads is access to life itself. This Court held:

“11. … The entire State of Himachal Pradesh is in hills and without workable roads, no communication is possible. Every person is entitled to life as enjoined in Article 21 of the Constitution and in the facts of this case read in conjunction with Article 19(1)(d) of the Constitution and in the background of Article 38(2) of the Constitution every person has right under Article 19(1)(d) to move freely throughout the territory of India and he has also the right under Article 21 to his life and that right under Article 21 embraces not only physical existence of life but the quality of life and for residents of hilly areas, access to road is access to life itself. These propositions are well settled. We accept the proposition that there should be road for communication in reasonable conditions in view of our constitutional imperatives and denial of that right would be denial of the life as understood in its richness and fullness by the ambit of the Constitution. To the residents of the hilly areas as far as feasible and possible society has constitutional obligation to provide roads for communication.”

112. After referring to Article 38(2) of the Constitution, this Court in Umed Ram Sharma (1986) 2 SCC 68 observed that:

“27. … access to life should be for the hillman an obligation of the State but it is primarily within the domain of the legislature and the executive to decide the priority as well as to determine the urgency.”

There had been allocation of funds and the

“court has directed the executive to bring it to the notice of the legislature if some reallocation was feasible amongst the sanctioned expenditure for roads leaving the priorities to the discretion of the competent authorities”.

113. In State of H.P. v. High Court of H.P. (2000) 10 SCC 646 the High Court acted on a newspaper report and directed the construction of a certain road during the current financial year and the State Government was directed to make the funds available for the purpose. This Court found it extremely difficult to uphold the order of the High Court. Two principal reasons were given: firstly, it is for the State Government to determine its priorities and allocate funds, even though it might be necessary to lay a communication network; secondly, the necessity could be fulfilled only on the availability of funds.

“3. … Any interference of this nature would require diversion of funds carefully allocated on the basis of priority requirements and thereby disturb the programme of development chalked out by the State Government.”

114. In matters involving financial issues and prioritisation of finances, this Court should defer to the priorities determined by the State, unless there is a statutory obligation that needs to be fulfilled by the State. It is for this reason that in the matter of construction of roads (for example) this Court has left the prioritisation to the State.

115. In State of Uttaranchal v. Balwant Singh Chaufal (2010) 3 SCC 402 this Court observed that public interest litigation in India has travelled through three phases. These are:

Phase I.— It deals with cases of this Court where directions and orders were passed primarily to protect fundamental rights under Article 21 of the marginalised groups and sections of the society who because of extreme poverty, illiteracy and ignorance cannot approach this Court or the High Courts.

During this phase, the courts relaxed the traditional rule of locus standi and broadened the definition of aggrieved persons and gave directions and orders to preserve and protect the fundamental rights of marginalised, deprived and poor sections of society.

Phase II.— It deals with the cases relating to protection, preservation of ecology, environment, forests, marine life, wildlife, mountains, rivers, historical monuments, etc. etc.

This hardly needs any elucidation. This Court has been in the forefront in issues relating to the environment, forests and historical monuments, amongst others. There are several decisions of this Court in this regard.

Phase III.— It deals with the directions issued by the Courts in maintaining the probity, transparency and integrity in governance.

In the third phase, the constitutional courts

“broadened the scope of public interest litigation and also entertained petitions to ensure that in governance of the State, there is transparency and no extraneous considerations are taken into consideration except the public interest”.

116. As far as the present case is concerned, there is no doubt that provision of foodgrains as per the provisions of the NFS Act is a statutory obligation on the State. This Court can certainly direct the State to faithfully implement the provisions of the NFS Act. Unfortunately, there is no statutory or constitutional obligation on the State to provide edible oils and dal/lentil to people in distress. If these items were vital for the survival of the people, this Court would have surely directed their distribution. But there is nothing to suggest that without edible oils and dal/lentil the fundamental right of the people in drought-affected areas guaranteed under Article 21 of the Constitution is violated. We therefore cannot reasonably read into the Constitution or the law something that is not there. That apart, although the number of affected households is not available with us, we can only assume the number to be sizeable given the fact that drought has been declared in vast areas of the country. Even on a conservative estimate, more than 33 crore people are affected by drought with varying degrees of distress and intensity. The estimate of Swaraj Abhiyan is between about 40 crore and over 50 crore people being affected by drought. All that we can say and do say in this regard is that at least ¼th of the country's population (if not ⅓rd) is affected by drought and the State Governments must take appropriate steps to ensure that at least the statutory requirement of foodgrains is made available to the people in the drought-affected areas of the country. In addition, and to the extent possible, the State Government should take appropriate measures to provide dal/lentil and an appropriate cooking medium and any other items of necessity to persons affected by the drought and if a request is made by a State Government to the Government of India, it must consider the request with compassion.

117. We would like to draw attention to Article 47 of the Constitution which provides that one of the primary duties of the State is to raise the level of nutrition and the standard of living of the people. Although Article 47 is not enforceable being a directive principle, there is considerable moral force and authority in this provision to persuade the State Governments and the Government of India to attempt at ensuring that the people, particularly those in drought-affected areas, are provided adequate foodgrains and a cooking medium for the preparation of their meals.

118. Similarly, the entitlement of foodgrains at 5 kg per person per month (as per the NFS Act) is a goal that must be achieved by the State at the earliest particularly in drought-affected areas. In fact, statute or no statute and implementation or non-implementation of a law enacted by Parliament, the State ought to appreciate and realise that an adequate supply of foodgrains must be made available without much fuss to people in drought-affected areas. As it is, because of the drought such persons undergo immense hardship mainly for reasons beyond their control and if there is a scarcity of food, it would only add to their misery and adversity if not multiply it. The State being a welfare State must take these factors into consideration and strain every nerve to ensure that the mandate of the NFS Act is adhered to.

119. In this context, it would be inappropriate for the State Governments to deprive any household in drought-affected areas of the requisite foodgrains merely because they do not have a ration card. We find substance in the contention of the learned counsel for Swaraj Abhiyan that in grave and emergent situations such as those in the drought-affected areas, the requirement of a ration card for obtaining foodgrains can only be considered a procedural requirement and that requirement should be substituted with a valid identity card or any appropriate proof of residence that is acceptable to the functionaries in the State Governments, who need to construe such a condition open-handedly and without being tight-fisted.

120. We reject the contention on behalf of the Union of India that fiscal constraints or an increase in the food subsidy bill can be a reason for denying relief to persons in drought-affected areas. Our constitutional jurisprudence has travelled an enormous distance over the years to even think of attempting a rollback.

121. In Municipal Council, Ratlam v. Vardichan (1980) 4 SCC 162 this Court took the view that a plea of financial inability cannot be an excuse for disregarding statutory duties. It was held in para 12 of the Report:

“12. The statutory setting being thus plain, the municipality cannot extricate itself from its responsibility. Its plea is not that the facts are wrong but that the law is not right because the municipal funds being insufficient it cannot carry out the duties under Section 123 of the Act. This “alibi” made us issue notice to the State which is now represented by counsel, Shri Gambhir, before us. The plea of the municipality that notwithstanding the public nuisance financial inability validly exonerates it from statutory liability has no juridical basis. The Criminal Procedure Code operates against statutory bodies and others regardless of the cash in their coffers, even as human rights under Part III of the Constitution have to be respected by the State regardless of budgetary provision. Likewise, Section 123 of the Act has no saving clause when the Municipal Council is penniless. Otherwise, a profligate statutory body or pachydermic governmental agency may legally defy duties under the law by urging in self-defence a self-created bankruptcy or perverted expenditure budget. That cannot be.”

122. Similarly, in Khatri (2) v. State of Bihar (1981) 1 SCC 627 this Court referred to a constitutional obligation (as against a statutory obligation) of providing free legal services to an indigent person and had this to say in para 5 of the Report:

“5. … Mr K.G. Bhagat on behalf of the State agreed that in view of the decision of this Court the State was bound to provide free legal services to an indigent accused but he suggested that the State might find it difficult to do so owing to financial constraints. We may point out to the State of Bihar that it cannot avoid its constitutional obligation to provide free legal services to a poor accused by pleading financial or administrative inability. The State is under a constitutional mandate to provide free legal aid to an accused person who is unable to secure legal services on account of indigence and whatever is necessary for this purpose has to be done by the State. The State may have its financial constraints and its priorities in expenditure but, as pointed out by the Court in Rhem v. Malcolm 377 F Supp 995 (SDNY 1974)

‘the law does not permit any Government to deprive its citizens of constitutional rights on a plea of poverty’

and to quote the words of Blackmun, J. in Jackson v. Bishop 404 F 2d 571 (CA8 1968)

‘humane considerations and constitutional requirements are not in this day to be measured by dollar considerations’.”

123. Finally, in Paschim Banga Khet Mazdoor Samity v. State of W.B. (1996) 4 SCC 37 this Court referred to another constitutional obligation of providing adequate medical services to the people and held in para 16 of the Report as follows:

“16. It is no doubt true that financial resources are needed for providing these facilities. But at the same time it cannot be ignored that it is the constitutional obligation of the State to provide adequate medical services to the people. Whatever is necessary for this purpose has to be done. In the context of the constitutional obligation to provide free legal aid to a poor accused this Court has held that the State cannot avoid its constitutional obligation in that regard on account of financial constraints. [See Khatri (2) v. State of Bihar (1981) 1 SCC 627, SCC at p. 631.] The said observations would apply with equal, if not greater, force in the matter of discharge of constitutional obligation of the State to provide medical aid to preserve human life. In the matter of allocation of funds for medical services the said constitutional obligation of the State has to be kept in view.”

There is undoubtedly a distinction between a statutory obligation and a constitutional obligation but there can be no doubt that the right to food is actually a constitutional right and not merely a statutory right. (See for example: Shantistar Builders v. Narayan Khimalal Totame (1990) 1 SCC 520.) In any event, even if the right to food is a statutory right, it would be the obligation of the State to make all possible efforts and some more to ensure that to the extent possible, adequate foodgrains are available to all and particularly to those in drought-affected areas. There can hardly be any dispute on this. In this context, it would be worth recalling the Preamble to the NFS Act which states that it is

“An Act to provide for food and nutritional security in human life cycle approach, by ensuring access to adequate quantity of quality food at affordable prices to people to live a life with dignity and for matters connected therewith or incidental thereto.”

124. As far as the provision of eggs or milk for mid-day meals is concerned, there is no dispute that calorific and nutritional contents for children have been prescribed under the Mid-Day Meal Scheme. How that standard is to be met is for each State Government to decide and no direction can be given in this regard by this Court. Apart from milk and eggs, there are other nutritional items that can be provided, such as chana or gram. However, it is unfortunate that neither milk nor eggs or anything else is provided under the Mid-Day Meal Scheme in Bihar, Haryana and Uttar Pradesh. Even in the States that we are concerned with, eggs or milk is not being provided to the beneficiaries on a daily basis or 5 days in a week, except in Chhattisgarh where eggs are provided for 6 days in a week. In other States that provide eggs or milk, the provision varies from one day to three days per week.

125. No one can doubt that children are the future of our country and if there is some stinginess in providing them with adequate nutrition, the country as a whole is deprived in future of taking the benefit of their potential. Therefore, the calorific and nutritional requirements mentioned by the Union of India cannot be treated as the maximum requirements but only as the minimum requirements.

126. As regards the provision of extending the Mid-Day Meal Scheme during the summer vacations, it is a pity that for the year 2016-2017 only three States, that is, Karnataka, Madhya Pradesh and Chhattisgarh have submitted a proposal for consideration to the Government of India. Is it that the States expect the children and their families to fend for themselves during the summer months? Maharashtra had submitted a proposal in 2015-2016 to the Union of India and that was accepted as it is by the Performance Appraisal Board but no proposal appears to have been made by Maharashtra for 2016-2017. Is it that the drought conditions have improved in Maharashtra over the last one year? We do not know. We have not been given any reason for not extending the Mid-Day Meal Scheme into the summer vacation in respect of some of the drought-affected States before us, nor is there any opposition to the prayer for extension made by Swaraj Abhiyan in this regard. In fact the Guidelines of September 2006 for the Mid-Day Meal Scheme provide in Chapter 5 thereof [Para 5.1(4)(iii)] as follows:

“In case notification declaring an area as “drought affected” is issued at a time when summer vacation has already commenced or is about to commence, the State Government should provide mid-day meal in primary schools located in such areas in anticipation of release of Central assistance.”

127. Accordingly, we take it, that the State Government of each of the drought-affected States before us (other than the three States mentioned above) are not averse to extending the Mid-Day Meal Scheme into the vacation period for schools in the drought-affected areas.

Directions

128. In view of the discussion and the conclusions arrived at by us, we issue the following directions:

128.1. Each of the States before us shall establish an internal grievance mechanism and appoint or designate for each district a District Grievance Redressal Officer as postulated by Section 14 and Section 15 respectively of the NFS Act within one month from today, unless these provisions have already been complied with. The said officer would also be entitled to address grievances relating to non-supply of foodgrains due to the absence of a ration card.

128.2. Each of the States before us shall constitute a State Food Commission for the purpose of monitoring and reviewing the implementation of the NFS Act as postulated by Section 16 thereof within two months from today, unless a State Food Commission has already been constituted.

128.3. In the States in which drought has been declared or might be declared in the future, all households should be provided with their monthly entitlement of foodgrains in terms of the NFS Act regardless of whether they fall in the category of priority household or not. The provision made under the NFS Act shall be in addition to and not in derogation of any other entitlement under any other government scheme.

128.4. No household in a drought-affected area shall be denied foodgrains as required under the NFS Act only because the household does not have a ration card. The requirement of a household having a ration card is directed to be substituted by an appropriate identification or proof of residence that is acceptable to the State Government.

128.5. It is made clear that each of the States before us is fully entitled to provide any foodgrains or other items over and above and in addition to the entitlement of a household under the NFS Act. There is no restriction in this regard.

128.6. The States of Bihar, Haryana and Uttar Pradesh must within a month from today make adequate provision for the supply of eggs or milk or any other nutritional substitute for children under the Mid-Day Meal Scheme. Eggs, milk or another nutritional substitute should be made available preferably five days in a week or at least three days in a week. The other States before us must make a similar provision for the supply of eggs or milk or any other nutritional substitute preferably five days in a week or at least three days in a week. Keeping in mind the children of this country, financial constraints shall not be an excuse for not complying with this direction. It is a sad commentary that we should have to say this but we need to in the interest of the children of our country.

128.7. The States before us are directed to extend the Mid-Day Meal Scheme for the benefit of children during the summer vacation period in schools, if the extension has not yet been made, within a week from today. The Union of India shall immediately approve any such proposal in consultation with these State Governments. This direction is being passed in the interest of children in drought-affected areas.

129. We might mention that the Union of India usually brings into force a statute without putting in place the implementation machinery. This is clearly demonstrated by the fact that the mechanism for enforcing several provisions of the NFS Act has not been established or constituted. This is completely inexplicable. We fail to understand how a statute enacted by Parliament can be given effect to without appropriate rules and regulations being framed for putting in place the nuts and bolts needed to give teeth to the law or setting up mechanisms in accordance with the provisions of the statute. It is perhaps this tardiness in execution that enables some State Governments to take it easy and implement the law whenever it is convenient to do so.

Swaraj Abhiyan (III)

Madan B. Lokur, J.— In our judgment dated 11-5-2016 we had considered the issue of the drought or drought-like conditions prevailing in some parts of the country and had issued certain directions for compliance. Subsequently, in a related matter in our judgment pronounced today, we have dealt with the provisions of the National Food Security Act, 2013 and the Mid-Day Meal Scheme announced by the Government of India and issued directions for the effective implementation of the statute and the Mid-Day Meal Scheme to benefit people (including children) particularly those affected by the drought or drought-like conditions.

131. In this judgment we deal with the implementation of the Mahatma Gandhi National Rural Employment Guarantee Act, 2005 and the Mahatma Gandhi National Rural Employment Guarantee Scheme framed under the provisions of Section 4 of the said Act.

Implementation of the Mgnreg Scheme

132. The Mahatma Gandhi National Rural Employment Guarantee Act, 2005 (for short “the NREG Act”) has a very simple and straightforward Preamble which says that it is:

“An Act to provide for the enhancement of livelihood security of the households in rural areas of the country by providing at least one hundred days of guaranteed wage employment in every financial year to every household whose adult members volunteer to do unskilled manual work and for matters connected therewith or incidental thereto.”

For the effective implementation of the NREG Act, the Mahatma Gandhi National Rural Employment Guarantee Scheme (for short “the Scheme”) has been announced and is implemented throughout the country.

133. The learned counsel for the petitioner submits that the Scheme is demand driven and in terms of Section 3(1) read with Section 3(3) of the NREG Act, every rural household registered for employment is entitled as a matter of right to have one adult person provided with unskilled manual work and adequate wages under the Scheme for a minimum of 100 days in a year. In other words, if an adult member of a registered rural household is voluntarily desirous of doing unskilled manual work, he/she is guaranteed work for at least 100 days in a year.

134. The first submission of the petitioner in this context is that the Government of India and the State Governments concerned are obliged to ensure that adequate budgetary provision is made for the financial implementation of the Scheme. It is submitted that in addition to ensuring adequate financial provision, the Government of India as well as the State Governments concerned should not place any budgetary limit under the Scheme if employment is sought over and above 100 days. The first prayer, therefore, is for issuing appropriate directions to the Union of India in this behalf. While the guarantee is for 100 days in a year, the State should encourage employment for more than that.

135. The second prayer made in this context is that even if there is no budgetary limit, there is an informal cap on funds under the Scheme and that should be done away with. To appreciate what is sought to be conveyed by this prayer requires an understanding of the procedure followed by the Government of India in the implementation of the Scheme.

136. Reference is made by the learned counsel to the “Operational Guidelines for Nrega” issued in 2013 particularly Para 6.9 thereof. This paragraph provides that the Labour Budget (or LB) should be finalised by each State by 31st December for all Gram Panchayats (or GP) in the State and placed before an Empowered Committee chaired by the Secretary in the Ministry of Rural Development. This projected Labour Budget is then slashed and an “agreed to” Labour Budget is prepared which is only a percentage of the Labour Budget presented by the State Government. It is submitted that in Financial Year 2014-2015 the “agreed to” Labour Budget was 78% of the Labour Budget and for Financial Year 2015-2016 the “agreed to” Labour Budget was 75% of the Labour Budget. This is the informal cap on funds adverted to by the learned counsel.

137. It is submitted that the consequence of this informal cap is that the State Governments do not have an adequate fund at their disposal and because of a lack of funds, they are unable to encourage voluntary unskilled manual labour. Resultantly, they cannot reach the target of 100 days of employment per household per year. Since there is a shortage of the “workforce” caused by a lack of funds, the State Governments are compelled to drop some development works. In other words, fiscal constraints result in a vicious cycle adversely impacting employment and development.

138. The third prayer therefore relates to an additional consequence of a shortage of funds and a depleted “workforce”. The consequence, as projected by the learned counsel, is that due to fiscal constraints, the unskilled manual labour put in is not duly compensated by payment of wages in time, the excuse of the State Governments being a lack of funds. Consequently, the pending wage bill continues to rise and that increasing liability actually makes a complete mockery of the Scheme and the NREG Act since the dues are cleared much later than required by law. This is a modern form of begar and is contrary to the spirit of Article 23 of the Constitution.

139. The fourth prayer made under this heading is for the Government of India to increase the minimum statutory obligation of 100 days employment per rural household by another 50 days for drought-affected States for the year 2016-2017 and to release the additional financial requirements well in time.

140. Responding on behalf of the Union of India, the Joint Secretary in the Ministry of Rural Development ably assisted us on facts on this issue. She is extremely well-versed in the subject and we acknowledge her valuable assistance in understanding the point of view of the Government of India.

141. The Government of India acknowledges that the minimum guaranteed employment is 100 days in a year in terms of the NREG Act, but that it is voluntary. That apart, it is submitted that given the magnitude of the effort required, it is not easy to achieve the target. It is not denied that job cards have been issued to about 13.26 crore households all over the country and the number of active job cards is about 5.72 crores and the total households that have worked in Financial Year 2015-2016 is about 4.77 crores. The total number of households that have been provided 100 days of employment in the year 2015-2016 is said to be 47,06,129 (as on 19-4-2016) and in the drought-affected States the number of such households is said to be 27,64,508 (as on 19-4-2016). The petitioner has different figures as on a different date but it is not necessary to decide which set of figures is correct since the Government of India believes that in view of the large numbers, the implementation of the Scheme is dependent upon the efforts of the State Governments. The Government of India can only persuade the State Governments to reach the minimum statutory guarantee of 100 days' employment. It is submitted that as a result of this persuasion, employment provided per household at the national level is 47 days which is the highest achieved in the last six years. As far as the drought-affected States are concerned, the average days of employment provided per household is 46.4 days. Based on this, it is submitted that all efforts are being made to faithfully implement the Scheme in spirit and no effort is spared in this regard.

142. With regard to the informal capping of the Labour Budget, it is submitted that in terms of Section 14(6) of the NREG Act the District Programme Coordinator (who is usually the Collector in the district), prepares a district specific budget in December for the coming financial year. This budget contains the details of anticipated demand for unskilled manual work in the district. The district budgets for the State are then collated at the State level and the State Government prepares its Labour Budget. This is then communicated and presented to the Government of India in the Ministry of Rural Development which then examines it in the Programme Division in the Ministry in consultation with the State Governments concerned. Thereafter, the budget is finalised by an Empowered Committee headed by the Secretary in the Ministry of Rural Development. It is submitted that the Labour Budget is essentially a tool for the financial management of funds released and is purely indicative. What the Empowered Committee does is to prepare a budget based on the performance of the State Government and other related criteria and arrive at a somewhat more realistic budget, which too is indicative.

143. It is submitted that there is no cap on the expenditure and States may exceed the budget approved by the Empowered Committee after seeking approval of the said Ministry. A comparative statement of expenditure incurred over the last four financial years has been placed before us and a perusal thereof does show that there has been a fluctuation in expenditure over the years as follows:

Year Budget provision (in crores) Actual expenditure (in crores) 2011-2012 31,000.00 37,072.82 2012-2013 30,287.00 39,778.29 2013-2014 33,000.00 38,601.59 2014-2015 33,000.00 36,032.48 2015-2016 37,345.95 42,253.75

144. With regard to the shortage of funds, it is submitted that the Ministry of Rural Development has been in touch with the Ministry of Finance to ensure that there is no such shortage. While a request was made for the release of Rs 5000 crores to the Ministry of Finance what was in fact released is only Rs 2000 crores. There is therefore a tacit admission that the Ministry of Finance does not release funds in adequate amounts or in time for the effective implementation of the Scheme. In her presentation, the Joint Secretary in the Ministry of Rural Development submitted that efforts are also being made through the Ministry of Agriculture for the release of funds.

145. It is submitted that notwithstanding this, some States have in fact exceeded the budget approved by the Empowered Committee. There is therefore no question of any informal capping of funds.

146. With regard to the pending wage bill under the Scheme, it is admitted that till 31-3-2016 there is a pending balance of about Rs 8000 crores. However, it is stated in the fourth affidavit filed by the Government of India on or about 11-4-2016 that an amount of Rs 11,030 crores will be released to the States within one week subject to fulfilment of standard conditions by the States. This will take care of the pending wage liability of Rs 7983 crores as on 31-3-2016 for Financial Year 2015-2016. This includes the wage liability of Rs 2723 crores in the ten drought-affected States that we are concerned with where the Ministry of Rural Development has allowed additional 50 days of employment to the households concerned. It is further stated in the affidavit that an amount of Rs 3047 crores will be released to the States for implementing the Scheme in April 2016 (inclusive of wages and material component). The pending liability of the material component of Rs 4359 crores for Financial Year 2015-2016 (as on 31-3-2016) will be released in June 2016. In other words, it is admitted that for Financial Year 2015-2016 there is an existing wage and material component liability in excess of Rs 12,000 crores.

147. As far as the release of funds for 2016-2017 is concerned, it is submitted by the learned counsel for the petitioner that in terms of the Master Circular under the Scheme, funds are required to be released in two tranches, the first tranche in the first week of April (for the period 1st April to 30th September) and the second tranche in the first week of October (for the period 1st October to 31st March). It is submitted that therefore the release of Rs 3047 crores for implementing the programme only for April 2016 is contrary to the Master Circular.

148. It is explained in the fourth affidavit of the Government of India that the first tranche is actually released in two parts. The first part of the first tranche is released in the first week of April because of the vote on account while the second part of the first tranche is released in June after the regular Budget is passed in Parliament. It is, therefore, submitted that while there has been a delay in the release of funds, that has now been taken care of at least for Financial Year 2015-2016 (with regard to the wage bill) and for the month of April (both wage bill and material component) in Financial Year 2016-2017.

149. With regard to implementing and extending the Scheme for an additional 50 days in drought-affected States (over and above the guarantee of 100 days) we are informed by the Joint Secretary that in the drought-affected States, employment is guaranteed for 150 days in a year and funds will be made available to every household whose adult members volunteer to do unskilled manual work under the Scheme. The extension of the Scheme for a period of 50 days over and above 100 days is therefore now not an issue.

Discussion and conclusions

150. A review of the NREG Act indicates that under Section 3(3) thereof after the work is done, the disbursement of wages shall be on a weekly basis and in any event within a fortnight after the date on which the work is done. However, if no work is provided to an applicant within 15 days, then as per Section 7 of the NREG Act the applicant shall be entitled to receive an unemployment allowance. Consequently, the NREG Act provides for a guarantee of employment, payment for the work within a week and in any event within a fortnight, and if employment is not provided then a payment of unemployment allowance. What if the payment of wages is delayed in the first instance?

151. The Guidelines on Compensation for delayed wage payment circulated by a Letter dated 12-6-2014 by the Ministry of Rural Development draws attention to Para 29 of Schedule II to the NREG Act which provides that the workers are entitled to receive “delay compensation” at a rate of 0.05% of the unpaid wages per day for the duration of the delay beyond the sixteenth day of the closure of the muster roll. Guideline 2 in this regard reads as follows:

“2. Compensation due to delay in payment of wages.—Para 29, Schedule II of Mgnrega, 2005 has laid down a detailed procedure for establishing a delay compensation system. As per the system Mgnrega workers are entitled to receive delay compensation @ 0.05% of the unpaid wages per day for the duration of the delay beyond the sixteenth day of the closure of the MR.”

152. The relevant part of Para 29 of Schedule II to the NREG Act reads as follows:

“29. Wage payment.— (1) In case the payment of wages is not made within fifteen days from the date of closure of the muster roll, the wage seekers shall be entitled to receive payment of compensation for the delay, @ 0.05% of the unpaid wages per day of delay beyond the sixteenth day of closure of muster roll.

(a) Any delay in payment of compensation beyond a period of fifteen days from the date it becomes payable, shall be considered in the same manner as the delay in payment of wages.

(b) to (f)***

(2) Effective implementation of sub-para (1) shall be considered necessary for the purposes of Section 27 of the Act.”

153. The meat of the matter lies in three issues: (i) Informal capping of funds through the Labour Budget and the “agreed to” budget process; (ii) delayed release of payments both for wages and materials; and (iii) ineffective monitoring of the Scheme.

154. As far as the informal cap on funds is concerned, no doubt a process has to be followed by the Government of India for the release of funds. The issue really is one of accepting a budget presentation as it is made by the State Government. The Government of India believes that the budget presentation cannot be accepted as it is and the Empowered Committee must consider the totality of facts and take a final decision.

155. It seems to us that a comparative table on the annual demand made by the States and the final decision of the Empowered Committee must be available, but the relevant figures have not been placed before us. However, during the course of hearing, it was the admitted position that there is a reduction from the demand made to the actual approval and that is based, inter alia, on the performance of the State Government in implementing the Scheme. This is also apparent from a reading of Para 7.1.1 of the Master Circular (Financial Year 2016-2017) Guidance for Programme Implementation issued by the Ministry of Rural Development of the Government of India.

156. There is, therefore, a chicken and egg situation — the release of funds by the Government of India is low because the performance of the State Government is poor and the performance of the State Government is poor because the release of funds by the Government of India is low. The suffering is of the unemployed unskilled manual labourer as an individual and the society as a whole.

157. Regarding the informal cap on funds, the learned counsel for the petitioner sought to substantiate his contention by referring to the minutes of the meeting of the Empowered Committee held on 21-3-2016 for the State of Madhya Pradesh for Financial Year 2016-2017. Para 4 of the Minutes is illustrative of the view of the Government of India and this records: “Under no circumstances, the State will cross the approved Labour Budget for 2016-2017 without the prior approval of the Ministry.”

158. It seems to us that the petitioner is perhaps reading too much into these Minutes. The reason we say so is because the learned Additional Solicitor General has drawn our attention to a subsequent Letter dated 11-4-2016 sent by the Secretary in the Ministry of Rural Development to the Chief Secretary of about 10 States (including Madhya Pradesh) wherein it is categorically stated that: “the agreed to Labour Budget for 2016-2017 does not imply that work cannot be provided beyond the Labour Budget if there is a genuine demand for work”. Also, in the fourth affidavit filed by the Union of India it is stated as follows:

“8. That there has been no restriction on registration of demand for work and States have been allowed to go beyond estimated Labour Budget in Financial Year 2015-2016. The Labour Budget is just a rough estimation of the demand and is one of the tools for financial management.

9. That 13 States i.e. West Bengal, Uttarakhand, Odisha, Meghalaya, Uttar Pradesh, Assam, Rajasthan, Nagaland, Kerala, Sikkim, Gujarat, Punjab and Tripura have generated person days beyond the estimated Labour Budgets for Financial Year 2015-2016. These States include three drought-affected States, namely, Odisha, Uttar Pradesh and Rajasthan.”

159. Keeping the above in mind and the submissions made, it appears to us that there is no informal capping of funds although it does appear that the Government of India is not prone to easily release funds for the projects under the Scheme. This really takes us to the second issue, namely, the delayed release of payments both for wages and materials.

160. According to the petitioner delayed release of payments has an adverse impact in the sense that it acts as a disincentive to a person taking on any work under the Scheme. If a person does some work under the Scheme and is not sure when he or she is likely to get the payment, there will definitely be some reluctance to seek employment under the Scheme.

161. With reference to Financial Year 2016-2017 the Union of India states in the fourth affidavit filed on or about 11-4-2016 that an amount of Rs 11,030 crores will be released to the States within one week subject to certain conditions and the release will take care of the pending wage liability of Rs 7983 crores (as on 31-3-2016) pertaining to Financial Year 2015-2016. This is a clear admission on the part of the Government of India that huge amounts remain unpaid towards wages. The unfortunate part is that an amount of Rs 2723 crores from this is with respect to 10 drought-affected States where the unemployed perhaps need their wages the most.

162. In Sanjit Roy v. State of Rajasthan (1983) 1 SCC 525 this Court held that providing labour for less than the minimum wage amounts to forced labour and as such violates Article 23 of the Constitution. It was said by Bhagwati, J. as follows:

“3. … where a person provides labour or service to another for remuneration which is less than the minimum wage, the labour or service provided by him clearly falls within the meaning of the words “forced labour” and attracts the condemnation of Article 23. Every person who provides labour or service to another is entitled at the least to the minimum wage and if anything less than the minimum wage is paid to him, he can complain of violation of his fundamental right under Article 23 and ask the court to direct payment of the minimum wage to him so that the breach of Article 23 may be abated.”

What we are concerned with in the present case is not strictly payment less than the minimum wage but delayed payment to crores of people. We can understand delayed payment of a few days or weeks to a few people, but in this case it is delayed payment of a few weeks (if not more) to lakhs of people. Given the enormous number of persons involved, this is really unfortunate.

163. In Sanjit Roy (1983) 1 SCC 525, a strange submission was made by the State. It was submitted that it would not be possible to pay the minimum wage to persons undertaking famine relief work and to persons affected by drought and scarcity conditions since that would cripple the potential to provide employment to the affected persons. Rejecting this contention, Bhagwati, J. held:

“4. … when the State undertakes famine relief work with a view to providing help to the persons affected by drought and scarcity conditions, it would be difficult for the State to comply with the labour laws, because if the State were required to observe the labour laws, the potential of the State to provide employment to the affected persons would be crippled and the State would not be able to render help to the maximum number of affected persons and it was for this reason that the applicability of the Minimum Wages Act, 1948 was excluded in relation to workmen employed in famine relief work. This contention, plausible though it may seem is, in my opinion, unsustainable and cannot be accepted. When the State undertakes famine relief work it is no doubt true that it does so in order to provide relief to persons affected by drought and scarcity conditions but, nonetheless, it is work which enures for the benefit of the State representing the society and if labour or service is provided by the affected persons for carrying out such work, there is no reason why the State should pay anything less than the minimum wage to the affected persons. … Whenever any labour or service is taken by the State from any person, whether he be affected by drought and scarcity conditions or not, the State must pay, at the least, minimum wage to such person on pain of violation of Article 23….”

164. Pathak, J. concurred with the view of Bhagwati, J. but preferred to rest his decision on a breach of Article 14 of the Constitution and not Article 23 thereof. Pathak, J. held: (Sanjit Roy case (1983) 1 SCC 525)

“10. The circumstance that employment has been given to persons affected by drought and scarcity conditions provides only the reason for extending such employment. In other words, the granting of relief to persons in distress by giving them employment constitutes merely the motive for giving them work. It cannot affect their right to what is due to every worker in the course of such employment. The rights of all the workers will be the same, whether they are drawn from an area affected by drought and scarcity conditions or come from elsewhere. The mere circumstance that a worker belongs to an area effected by drought and scarcity conditions can in no way influence the scope and sum of those rights. In comparison with a worker belonging to some other more fortunate area and doing the same kind of work, is he less entitled than the other to the totality of those rights? Because he belongs to a distressed area, is he liable, in the computation of his wages, to be distinguished from the other by the badge of his misfortune? The prescription of equality in Article 14 of the Constitution gives one answer only, and that is a categorical negative.”

165. It is quite clear, therefore, that when the rights of tens of thousands of people are affected by delayed payment of their legitimate dues, there is a clear constitutional breach committed by the State — be it the Government of India or a State Government.

166. As mentioned above, a worker is entitled to compensation at the rate of 0.05% per day for delayed payment of the wages due. We are quite pained to note that the Government of India has made no provision for this compensation while releasing the wages for 2015-2016 of Rs 7983 crores. This is extremely unfortunate and certainly does not behove a welfare State in any situation, more so in a drought situation. Social justice has been thrown out of the window by the Government of India.

167. To make matters worse, the Union of India has admitted in the fourth affidavit that the material component of Financial Year 2015-2016 (as on 31-3-2016) is Rs 4359 crores for the entire country which includes the material liability of Rs 1995 crores in the 10 drought-affected States. This amount, according to the Government of India will be released in June 2016. Why should there be a delay in this?

168. We are unable to appreciate the unconscionable delay on the part of the Government of India in the release of funds both under the wage component as well as under the material component. It is quite clear, and there is no worthwhile justification forthcoming from the learned Additional Solicitor General, that delay in payment of wages acts as a disincentive to those persons who are intending to take the benefit of the Scheme. We have not been given any explanation whatsoever why a person would want to work without wages or at least work with an uncertainty in timely receipt of wages. It just does not stand to reason.

169. The Union of India has also stated in the fourth affidavit that an amount of Rs 3047 crores will be released to the States for implementing the Scheme in April 2016 and that this amount would be inclusive of both the wage and material components.

170. In terms of the Master Circular (2016-2017) the first tranche of the “agreed to” Labour Budget is required to be released in April 2016 (for the period ending in September). In terms of Para 7.1.2 of the Master Circular the release would be made after adjusting for unspent balance available with the districts/States and considering the pending liabilities if any. As is apparent from the fourth affidavit filed by the Government of India the possibility of any unspent balance perhaps does not exist but what does exist is the pending liabilities. Therefore, the amount that is released in the first tranche would actually be much less than the required amount for the first six months of the financial year since the pending liabilities themselves are more than Rs 12,000 crores. Clearly the implementation of the Scheme in the first six months of Financial Year 2016-2017 would begin with a deficit and the actual amount required for the first six months of the financial year (even as per the “agreed to” Labour Budget) would not be fulfilled. In our opinion, this is hardly any encouragement to persons willing to take advantage of the Scheme.

171. The fourth affidavit goes on to say that the first tranche will be released in two instalments — the first instalment being released in April 2016 which would apparently take care of the implementation of the Scheme for the month of April and the second tranche would be released in June 2016 after the regular Budget is passed in Parliament. The reason given in the fourth affidavit for the release of the first tranche in two instalments is because of the vote on account. It is a matter of common knowledge that the annual Budget is presented every year on the last day of February and it naturally takes time for the Budget proposals to be accepted by Parliament and hence the need for a vote on account. That being so it is rather odd that the Master Circular proceeds on the basis that the entire quantum of the first tranche will be released in April 2016 — something that is apparently not possible. There is no mention of any vote on account in the Master Circular and to this extent an incorrect picture of the release of funds is held out. All that we can say is that this is an unfortunate way of implementing a social welfare scheme intended for the benefit of unemployed persons.

172. We are informed by the Joint Secretary that the Labour Budget for 2016-2017 is calculated on 314 crore person days of employment. This has been scaled down by the Empowered Committee and the “agreed to” Labour Budget for 2016-2017 is calculated on 217 crore person days of employment. Therefore, (roughly) only 70% of the Labour Budget is accepted by the Empowered Committee based on the past performance of the States. On this basis, (roughly) about Rs 20,000 crores ought to be released by the Government of India in the first tranche towards financial implementation of the Scheme. The amount actually released is only Rs 3047 crores. The implicit assurance is that the balance amount of about Rs 17,000 crores will be made over to the States in June 2016 in the second instalment of the first tranche after the annual Budget is approved by Parliament. We can only wait and hope.

173. As far as the third issue of monitoring the Scheme is concerned the NREG Act makes adequate provision in this regard. Section 10 of the NREG Act provides for constituting a Central Employment Guarantee Council (for short “CEGC”). As per Section 11 of the NREG Act, the functions of CEGC include, amongst others, establishing a Central evaluation and monitoring system; advising the Central Government in all matters concerning the implementation of the NREG Act; monitoring the implementation of the NREG Act; and preparing annual reports to be laid before Parliament by the Central Government on the implementation of the Act. It is not clear to us whether CEGC is in existence and whether any monitoring mechanism is in place. A visit to the official website of the NREG Act indicates that as of now there is no CEGC in place.

174. Similarly, the State Government is required to constitute a State Employment Guarantee Council under Section 12 of the Act. The duties and functions of the State Council include advising the State Government on all matters concerning the Scheme and its implementation in the State, monitoring the implementation of the NREG Act and preparing an annual report to be laid before the State Legislature by the State Government. Again we have not been informed of the existence of any such State Council or whether the NREG Act is being faithfully implemented both by the Government of India and by the State Government.

175. At this stage, we may mention that the Joint Secretary in the Ministry of Rural Development informed us that the Government of India has introduced a potentially exciting scheme for prompt payment of wages to the persons availing the benefit of the Scheme. A system called the National Electronic Management System or NeFMS is in place in about a dozen States. The objective of this system is to ensure that the wage component under the Scheme is released directly to the account of the person concerned based on a Funds Transfer Order to be generated by the implementing agencies of the States. The benefit of the system is that the person will be assured of timely payment of wages after the pay order generation. We have been informed that NeFMS is in place in several States with effect from 12-4-2016. Although it is early days, we are told by the learned Additional Solicitor General that the system is working quite satisfactorily, although this is disputed by the petitioner who says that the system was first introduced in Kerala from 1-1-2016 but even then there are huge delays in making the payment of wages.

Directions

176. On the basis of the provisions of the NREG Act and the material placed before us, it is appropriate that the following directions are issued:

176.1. The State Governments ought to present a realistic budget which should then be pragmatically considered by the Empowered Committee. This procedure will avoid any unnecessary controversy between the State Governments and the Government of India about the release of funds under the Scheme.

176.2. The Government of India is directed to release to the State Governments adequate funds under the Scheme in a timely manner so that the “workforce” is paid its wages well in time. It is regrettable that the pending wage bill for 2015-2016 was cleared only during the pendency of this petition. The Government of India must shape up in this regard.

176.3. The Government of India is directed to ensure that compensation for delayed payment is made over to the workers whose wages have been delayed beyond 15 days as postulated by Para 29 of Schedule II of the NREG Act and the Guidelines for Compensation formulated pursuant thereto.

176.4. Both the State Governments and the Government of India are directed to make all efforts to encourage needy persons to come forward and take advantage of the Scheme. A success rate below 50% is nothing to be proud of.

176.5. The Government of India is directed to ensure that the Central Employment Guarantee Council is immediately constituted under Section 10 of the NREG Act. In any event, the Central Employment Guarantee Council should be constituted within a maximum of 60 days from today.

176.6. The Government of India is directed to proactively request the State Governments to establish the State Employment Guarantee Council under Section 12 of the Act within a period of 45 days from today. The effective implementation of the NREG Act will certainly not be possible unless these monitoring and reviewing authorities are faithfully and urgently established by the Government of India and the State Governments.

176.7. Since the NREG Act is a social welfare and social justice legislation the Government of India must ensure that its provisions are faithfully implemented by all concerned.

Swaraj Abhiyan (IV)

Madan B. Lokur, J.— In three earlier decisions concerning the prevailing drought or drought-like situation, we had stressed the obligation of the Government of India complying with all the provisions of the laws enacted by Parliament, namely, the Disaster Management Act, 2005, the National Food Security Act, 2013 and the Mahatma Gandhi National Rural Employment Guarantee Act, 2005. This will, of necessity, require establishing and constituting bodies and authorities provided for by law and making available the necessary finances for implementing and abiding by the law. The State cannot say that it is not bound to follow the law and cannot adhere to statutory provisions enacted by Parliament and create a smokescreen of a lack of finances or some other cover-up. The rule of law binds everyone, including the State.

178. In this decision, we concern ourselves with the remaining substantive issues raised by the petitioner Swaraj Abhiyan.

Relief for crop loss

179. The grievance of Swaraj Abhiyan is that the “Crop Input Advance” or the “Agricultural Input Subsidy” offered by the Government of India is far too low and in the event of a drought, the monetary relief (compensation or ex gratia) received by a farmer does not even cover the cost of cultivation of crops. Reference is made to the cost of cultivation of some principal crops in India relating to 2015-2016 (average 2010-2011 to 2012-2013) obtained from the Comprehensive Scheme for Studying the Cost of Cultivation of Principal Crops in India by the Directorate of Economics and Statistics in the Ministry of Agriculture. By way of illustration, it has been pointed out that in respect of some kharif crops such as paddy, the cost per hectare is Rs 42,441; for maize it is Rs 31,492 per hectare; for jowar it is Rs 27,292 per hectare; for bajra it is Rs 19,558 per hectare.

180. According to the petitioner, in terms of the norms of assistance from the States Disaster Response Fund (SDRF) and the National Disaster Response Fund (NDRF) the input subsidy where the crop loss is 33% and above for agriculture crops, horticulture crops and annual plantation crops is Rs 6800 per hectare in rainfed areas and restricted to sown areas; Rs 13,500 per hectare in assured irrigated areas, subject to minimum assistance of not less than Rs 1000 and restricted to sown areas. Reference in this regard is made to a Letter dated 8-4-2015 issued by the Ministry of Home Affairs (Disaster Management Division). This is said to be clearly insufficient.

181. On these broad facts, the first prayer made by the petitioner is that the relief or subsidy is extremely low and only where the crop loss is 33% and above. The amount should be realistic and there is no reason why an arbitrary figure of 33% of crop loss should be fixed. It is submitted that the subsidy is a safety net for farmers in times of distress and therefore the compensation should be far more realistic in the event of a failed crop.

182. The second prayer is connected with the first prayer and is to the effect that farmers should be given immediate relief for crop loss for the year 2015-2016. The relief or subsidy should not be only adequate but should also be given timely with the entire process being transparent so that there is no allegation of corruption.

183. In response, the Union of India submits that under Section 46 of the Disaster Management Act, 2005, the Central Government has constituted a National Disaster Response Fund (NDRF) for meeting any threatening disaster situation or disaster. This is exclusively for the purposes of alleviating the adverse impact of a disaster. Similarly, under Section 48 of the Disaster Management Act, the State Governments have constituted a fund called the State Disaster Response Fund (SDRF).

184. The 14th Finance Commission has recommended an allocation of Rs 61,219 crores as the aggregate corpus for SDRF for the period 2015-2020. The norms for providing financial assistance have been revised on 8-4-2015 (as mentioned above) and the agricultural input subsidy that was earlier Rs 4500 per hectare with the crop loss being 50% and above has since been revised upward by an order dated 8-4-2015 to Rs 6800 per hectare where a crop loss is 33% and above in respect of rainfed areas. Similarly, there has been an upward revision in respect of irrigated areas and perennial areas. It is therefore submitted that adequate provision has been made in this regard and the State Governments, even in the drought-affected States, are entitled to utilise the funds available in terms of the norms laid down.

185. It is further submitted that in addition to the amount recommended by the 14th Finance Commission towards SDRF, the Government of India has also approved a sum of about Rs 12,774 crores from NDRF to the State Governments in the grip of drought. This amount is also considerably enhanced from the amount made available in previous years.

186. It is further submitted that the norms are not a compensatory measure but are a measure of immediate relief. Therefore, to require payment of the exact amount of subsidy as determined by the Directorate of Economics and Statistics in the Ministry of Agriculture would not be appropriate.

187. With regard to the funds in NDRF, it is submitted that the basis of the fund is the estimated tax revenue collection in the form of National Calamity Contingency Duty imposed on Union Excise and Customs and releases are made to the State Governments by the Ministry of Finance of the Government of India from this provision.

Fodder banks

188. The grievance of the petitioner in this regard is that even though a fodder bank has been established under the Centrally Sponsored Fodder and Feed Development Scheme and the National Mission for Protein Supplements for the areas notified as drought affected in 2012, the benefits under this Scheme and Mission have not been extended to all drought-affected areas in the country for the years 2015-2016 and 2016-2017. It is prayed that the Scheme and Mission be extended to all drought-affected areas and there should be no financial cap on support for this component. It is further submitted that in anticipation of drought the Union of India had issued a detailed Advisory on 12-9-2012 and that should be implemented in letter and spirit.

189. The purpose of the fodder bank is to meet the requirement of livestock in areas notified as drought affected. Fodder banks are expected to facilitate procurement and storage of fodder from surplus areas or areas where rainfall is satisfactory and this fodder can be then distributed to cattle camps and deficient areas. To reduce the cost of establishment of a fodder bank, it appears to have been recommended that low capacity tractor mountable fodder block machine should be used as far as feasible.

190. The prayer of the petitioner in this respect is for the effective management of the fodder banks in the drought-affected areas and for the establishment of fodder banks where no such bank has been established in a drought-affected area.

191. The response of the Union of India is that apart from the abovementioned Scheme and Mission, the Department of Animal Husbandry, Dairying and Fisheries is implementing the National Livestock Mission and one of the submissions of this Mission is feed and fodder development. The State Governments can avail financial assistance under the submission.

192. In addition, the Central Government has approved an Additional Fodder Development Programme as a special scheme of the Rashtriya Krishi Vikas Yojna for the year 2015-2016 to mitigate the adverse impact of drought in drought-affected districts/blocks of the country. Funds have been allocated for this purpose to various States as per the cost norms.

Crop loan restructuring and relief

193. In this regard, the submission of the petitioner is that deferment of arrears and restructuring of loans is an important aspect of relief for the drought-affected farmers and necessary directions should be given to Rural and Cooperative Non-Scheduled Banks, Scheduled Banks including nationalised banks, etc. to abide by the guidelines issued by Reserve Bank of India. The State-Level Bankers Committees have considerable discretion in the matter of deferment of arrears and restructuring of loans with the result that restructuring has not taken place as per the guidelines in several States. The prayer of the petitioner therefore is to have a more realistic deferment of arrears and restructuring of loans by all the banks concerned, particularly in respect of farmers in drought-affected areas.

194. In response, it is stated by the Union of India that Reserve Bank of India has issued a Master Circular on 1-7-2015 (updated up to 21-8-2015) while Nabard has issued a circular on 26-8-2015 addressed to all cooperative banks and regional rural banks recommending a moratorium of one year in restructuring the loans of borrowers affected by a natural calamity. However, overdue loans are not included since they are not attributed to a natural calamity. Notwithstanding this, there is no prohibition on any bank from restructuring any loan including any overdue loan subject to the guidelines of Reserve Bank of India and in accordance with their internal policy guidelines.

Discussion and conclusions

195. It is quite apparent from the submissions made and the reliefs claimed that essentially the concerns raised pertain to policy, whether economic and fiscal policy or policy impacting on drought-affected persons. We are certainly not equipped to commend the view expressed by the petitioner or the view expressed by the State on issues of this nature. It is really for experts in the field to take a call, for example, on what percentage of crop loss deserves to be addressed, whether the crop loss should be 33% and above or 50% and above. The quantum of monetary relief to be given to a farmer is again a matter of policy.

196. Similarly, issues regarding establishing fodder banks or restructuring bank loans, the extent to which restructuring should be carried out are all issues that are required to be decided by experts. Even then, within the community of experts, there are likely to be differences of opinion. While one set of experts might fix crop loss for relief at 50% another set of experts might consider the crop loss for relief above or below 50%. This being the position, there cannot be any judicially manageable standards for determining issues of policy and it would be hazardous if not dangerous for us to venture into such areas when we lack the expertise to do so.

197. This Court has, on several occasions, dealt with issues of policy whether having an economic and fiscal flavour or even mundane matters of policy including, for example, transfer of government servants from one place to another. This Court has not interfered in such matters unless the policy is demonstrably perverse.

198. Fairly recently, in Essar Steels Ltd. v. Union of India (2016) 11 SCC 1, (2016) 4 Scale 267 this Court summed up the position in law as follows: SCC para 44)

“44. … ‘65. Broadly, a policy decision is subject to judicial review on the following grounds:

(a) if it is unconstitutional;

(b) if it is dehors the provisions of the Act and the Regulations;

(c) if the delegatee has acted beyond its power of delegation;

(d) if the executive policy is contrary to the statutory or a larger policy.”

199. There are several decisions to the same effect including, for example, another recent decision of this Court in Centre for Public Interest Litigation v. Union of India (2016) 6 SCC 408, (2016) 3 Scale 712 and some earlier decisions such as M.P. Oil Extraction v. State of M.P. (1997) 7 SCC 592, Villianur Iyarkkai Padukappu Maiyam v. Union of India (2009) 7 SCC 561 and of course the Division Bench decision in Peerless General Finance and Investment Co. Ltd. v. RBI (1992) 2 SCC 343. For the present purposes, the summation provided in Essar Steels (2016) 11 SCC 1, (2016) 4 Scale 267 is quite clear: (SCC para 49)

“49. Executive policies are usually enacted after much deliberation by the Government. Therefore, it would not be appropriate for this Court to question the wisdom of the same, unless it is demonstrated by the aggrieved persons that the said policy has been enacted in an arbitrary, unreasonable or mala fide manner, or that it offends the provisions of the Constitution of India.”

200. Therefore, the issues raised by the petitioner should actually be looked at from the point of view of implementation of a policy and monitoring its implementation. In our opinion, in the process of implementation and monitoring, what is important is for the Union of India and the State Governments to set up watchdog committees or ombudsmen to see that the polices framed are faithfully implemented. There is little utility in knee-jerk reactions and stumbling along from one situation to another.

201. Ad hoc measures really do not serve any purpose and eventually the consequence of an ad hoc reaction tends to travel to this Court for a response. The one possible solution appears to be for the Union of India and the States to set up their respective watchdog committees that will specialise in certain disciplines for the purposes of implementation and monitoring the schemes and policies framed by the Union of India and the State Governments. A policy might be acceptable and worthy, but often it is the effective implementation and monitoring that is lacking.

202. Under the circumstances, we are inclined to issue only one direction in respect of the three issues raised by the petitioner which is to direct the authorities concerned in the Union of India, the State Governments and Reserve Bank of India and other banks to religiously implement their policies since they are ultimately intended for the benefit of the people of our country and not for the benefit of any stranger.

Court Commissioners

203. The learned counsel for the petitioner insists on the appointment of Court Commissioners to oversee the implementation of the various directions issued by us. Reference is made by the learned counsel to what is commonly called “the Right to Food Campaign” which resulted in the appointment of Commissioners by this Court to report on the functioning and improvement of the Public Distribution System. Some useful and valuable suggestions were certainly given by the Court Commissioners and which were implemented under the directions of this Court. The learned counsel for the petitioner submits that it is necessary for us to direct the appointment of Court Commissioners so that the provisions of the various statutes under consideration are faithfully implemented and the various schemes framed by the Government of India and the State Governments are implemented in their true spirit.

204. The learned Additional Solicitor General vehemently opposes this plea on the ground that the appointment would serve no useful purpose. He submits that it is not as if the officers in the Government of India are not doing their work. While there may be some laxity or slackness on occasion but that cannot be generalised to necessitate some external authorities to monitor the functions of the officers of the State. He submits that there are internal checks within the administration which ensure that governance is carried out for the welfare of the people and in a transparent and accountable manner.

205. We have given our consideration to the submissions made by the learned counsel for the petitioner and the learned Additional Solicitor General and find that the system of in-house checks has already been statutorily recognised for all the issues that we have dealt with in this case. For example, the Disaster Management Act, 2005 constitutes authorities and bodies like the National Disaster Management Authority, the National Executive Committee, etc. to ensure that the Act is faithfully implemented and measures taken are reviewed and monitored from time to time. Similarly, the National Food Security Act, 2013 and the Mahatma Gandhi National Rural Employment Guarantee Act, 2005 also mandate the constitution and establishment of bodies and authorities under the statute to review and monitor the implementation of the statute and the schemes or programmes thereunder.

206. It is another matter altogether that some provisions of these statutes have been converted into a dead letter and various authorities under these statutes have not yet been constituted compelling us to comment on the failure of the executive branch of the Government of India and the State Governments to faithfully implement the law enacted by Parliament. We have also given directions in this regard and we certainly expect a favourable response to the directions issued and their compliance. For the present, therefore, we do not see the need for the appointment of any Court Commissioner.

Continuing mandamus

207. We are firmly of the view that the principle of continuing mandamus is now an integral part of our constitutional jurisprudence. There are any number of public interest petitions in which this Court has continued to monitor the implementation of its orders and on occasion monitor investigations into alleged offences where there has been some apparent stonewalling by the Government of India. A few years ago, one of us had the occasion to advert to the requirement of a continuing mandamus as a part of our jurisprudence. (2014) 2 SCC 532 It is not necessary to repeat the views expressed therein.

208. Under these circumstances, we agree with the learned counsel for the petitioner that this petition ought not be disposed of but should be kept pending and the possibility of a continuing mandamus being issued ought to be kept open to ensure that the directions that have been given are complied with by the Government of India as well as the State Governments.

209. We adjourn this case to 1-8-2016 at 2.00 p.m. and direct the Union of India to file a status report on or before 25-7-2016 stating the action taken by the Government of India on the various directions that we have given in this case on different dates.