SC Pulls Up Centre And States for "Sound of Silence" on Drought, Asks "Where Does the Buck Stop?"

NEW DELHI: In a landmark judgement the Supreme Court has severely indicted the centre and the state governments for apathy and indifference to the severe drought conditions prevailing in the country. Where will the buck stop? The court asked as it expressed “anguish” over the non-measures taken by the government and “washing its hands off” a national disaster impacting at least ¼ rth of India’s population.

In a well written and comprehensive judgement in response to a petition filed by NGO Swaraj Abhiyan, with well known advocate Prashant Bhushan appearing on its behalf, the Bench of Justices Madan B. Lokur and N.V. Ramana issued a slew of directions on tackling the drought situation. It further questioned the failure of Bihar, Gujarat and Haryana to even admit to a drought, saying it was unfortunate that despite the conditions prevailing therein these states remained in denial mode. Surprised at the failure of the centre to take onus for the drought, particularly where the states were dithering, the Court in its directions included the setting up of a National Disaster Response Force and a Disaster Mitigation Fund.

The judgement opened with a quote from Lokmanya Tilak stating, “the problem is not lack of resources or capability, but the lack of Will.” And in the first three paragraphs the Bench made the following important observations:

1. This lack of Will is amply demonstrated in this public interest litigation under Article 32 of the Constitution, in which the States of Bihar, Gujarat and Haryana are hesitant to even acknowledge, let alone address, a possible drought-like situation or a drought by not disclosing full facts about the prevailing conditions in these States. A candid admission does not imply a loss of face or invite imputations of ineffective governance – it is an acknowledgement of reality. An ostrichlike attitude is a pity, particularly since the persons affected by a possible drought-like situation usually belong to the most vulnerable sections of society. The sound of silence coming from these States subjects the vulnerable to further distress. During the hearing of this public interest petition, no one alleged a lack of effective governance, only the lack of an effective response and therefore we are at a loss to understand the hesitation of these States. Ironically, towards the fag end of the hearing, Gujarat finally admitted the existence of a drought in five districts – a fact that could have been admitted much earlier. But at least, it is better late than never. However, Bihar and Haryana continue to be in denial mode.

2. It is not as if a drought is required to be declared in the entire State or even in an entire district. If a drought-like situation or a drought exists in some village in a district or a taluka or tehsil or block, it should be so declared. The failure of these States to declare a drought (if indeed that is necessary) effectively deprives the weak in the State the assistance that they need to live a life of dignity as guaranteed under Article 21 of the Constitution.

3. To compound the problem, the Union of India has introduced the concept of ‘federalism’ and canvasses the view that a disaster requires the Union of India to primarily provide financial assistance and any other assistance if it is sought by the State Government. A declaration of drought and its management is really the concern of the States. Surely, if a State Government maintains an ostrich-like attitude, a disaster requires a far more proactive and nuanced response from the Union of India. Therefore, in such a state of affairs the question that needs to be asked is: Where does the buck stop?

The hearing revealed some important facts, as noted by the Court in its ruling. Outlining the specific provisions of the Disaster Management Act, 2005 the Judges were surprised to be informed by the Additional Solicitor General that ten years hence that one, “ 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.”

And two, “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.”

The SC made some important observations on the role of the judiciary in such matters during the course of the judgement, pointing out rather significantly, “To be sure, judicial activism is not an uncomplimentary or uncharitable epithet to describe the end result of public interest litigation. Those who benefit from judicial activism shower praise and those who are at the receiving end criticize it. C’est la vie!”

The Judges quoting from past cases pointed to the Directive Principles, “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.”

And pointed out that “there are occasions when people in disadvantaged situations are unable to have access to courts and therefore access to justice and need someone to speak up for them. How else can a welfare State function effectively if it cannot even hear let alone listen to what the underprivileged and needy people have to say?”

Justifying Public Interest Litigation, the Bench observed that this provided the Court with the opportunity to find solutions to problems concerning society within the legal framework. And identified the reasons for these issues as, “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.” It said that the resolution of such issues by the Courts are “pejoratively and unfortunately described as judicial activism.” And went on to quote from other judgements to prove the contrary.

(Photo: Men working on a new pump for an almost dry well inside a peanut farm in the Solapur District, Maharashtra. Taken by Zacharie Rabehi, on assignment for The Citizen. Photo essay available here).