Blog Trek, the next generation: Indian Supreme Court judgements in Swaraj Abhiyan case, pertaining to food & drought

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From: Kavitha Kuruganti
Date: Fri, May 13, 2016 at 12:05 PM
Subject: ~GMfreeMH~ Today's judgement in Swaraj Abhiyan case, pertaining to food: Re: Judgement of SC in Swaraj Abhiyan Drought case

http://supremecourtofindia.nic.in/FileServer/2016-05-13_1463120192.pdf

Directions 30.

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

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 food grains due to the absence of a ration card.

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.

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 food grains in terms of the NFS Act W.P. (C) No. 857 of 2015 Page 18 of 21 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.

4. No household in a drought affected area shall be denied food grains 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.

5. It is made clear that each of the States before us is fully entitled to provide any food grains 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.

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 W.P. (C) No. 857 of 2015 Page 19 of 21 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.

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 a proposal in consultation with these State Governments. This direction is being passed in the interest of children in drought-affected areas. 31. 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 W.P. (C) No. 857 of 2015 Page 20 of 21 that enables some State Governments to take it easy and implement the law whenever it is convenient to do so.

..……………………..J (Madan B. Lokur) New Delhi; ………………………J May 13, 2016 (N.V. Ramana)

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On Wed, May 11, 2016 at 4:15 PM, Kavitha Kuruganti wrote:

While it appears that Swaraj Abhiyan did not get all the prayers that it had sought for in its petition, there are many good things in the judgement that lay a basis for medium and long term changes in the way this country approaches droughts.

http://supremecourtofindia.nic.in/FileServer/2016-05-11_1462945782.pdf

Directions 101. Keeping all the factors in mind we issue the following directions:

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.

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 W.P. (C) No. 857 of 2015 Page 48 of 53 Disaster Mitigation Fund within a period of three months from today.

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.

4. The Drought Management Manual is undoubtedly a meaningful and well-researched document. However, in view of the submissions made before us by 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 31st December, 2016. While revising and updating the Manual, the Ministry of Agriculture in the Union of India should take into consideration the following factors apart from others: (i) Weightage to be given to each of the four key indicators W.P. (C) No. 857 of 2015 Page 49 of 53 should be determined to the extent possible. Although the Manual states that rainfall deficit is the most important indicator, State Governments seem to be giving greater weightage to the area of crop sown out of the cultivable area and not to rainfall deficit. For this reason, necessary weightage is required to be given to each key indicator. (ii) The time limit for declaring a drought should be mandated in the Manual. Although it is stated in the Manual that the best time to declare a drought, if necessary, is October, we find that some States have declared a drought in November and December and in the case of Gujarat in April of the following year. Obviously this is far too late. The impact and 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. (iii) 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 W.P. (C) No. 857 of 2015 Page 50 of 53 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 minimized. This would certainly be in the interest of the people who face distress because of a drought or a drought-like situation. (iv)The nomenclature should be standardized 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 standardization 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 the annewari system for declaring a drought. There ought to be some standardization so that each State does follow its own methodology in declaring or not declaring a W.P. (C) No. 857 of 2015 Page 51 of 53 drought. 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 utilization (including ground water) 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.

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 State Governments realize 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.

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, W.P. (C) No. 857 of 2015 Page 52 of 53 taluka, tehsil or block is necessary. It should be emphasized 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.

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

……………………..J (Madan B. Lokur) New Delhi; ……………………J May 11, 2016 (N.V. Ramana) W.P. (C) No. 857 of 2015 Page 53 of 53