Landmark Supreme Court Order on Govt Failure in Tackling Drought

A PIL under Article 32 was filed by the NGO, Swaraj Abhiyan praying for directions for declaration of drought and relief in affected areas. The apex court came out with a 3 part judgment earlier this month – the first one dealt with the issue of drought and the latter judgments took up the poor implementation of the National Food Security Act, 200513 (NFSA) and the Mahatma Gandhi National Rural Employment Guarantee Act, 2005 (NREGA). These directions largely signify the failure of the governance in tackling drought and suggest actions to be taken hence, we need to be thankful to the petitioners and apex court for this. We also hope the apex court continues to monitor the implementation of the directions. 

SC Directions for dealing with the drought

1. Implementation of Disaster Management Act 2005 The SC noted that drought is a disaster and its assessment and management is covered under the provisions of the Disaster Management Act 2005. It directed implementation of the provisions of the Disaster Management Act 2005 which provides for constituting a National Disaster Response Force, establishing a National Disaster Mitigation Fund and formulation of a National Plan relating to assessment and management of disasters. The Court noted that the aforementioned provisions of the Act had not been implemented even a decade after coming into force. The media latter on reported that the notification about NDMF has not been notified, but that also shows the failure of the governance of disasters.

2. Revision of Drought Manual The Ministry of Agriculture has published a Manual for drought management (Drought Manual) in 2009. The Court commended the Drought Manual and directed its revision based on recent experience and new technology.

Indices for drought declaration The drought manual recommends rainfall deficiency, the extent of area sown, normalized difference vegetation index(NDVI) and moisture adequacy index(MAI) as the four standard monitoring tools which could be applied in combination for drought declaration. Rainfall is the most important indicator and the manual recommends declaration of drought if rainfall for June and July is less than 50% of the average or if the total rainfall in the rainy season from June to September (the south-west monsoon) or from December to March (north-east monsoon), is less than 75% of the average accompanied by reduction in vegetation and soil moisture.

The SC observed that many states have their own procedure for declaring drought and there has been little observance of the Manual. But the Central government claimed that the manual does not have any binding force and is only for reference. Moreover the Centre claimed that it would go against the principles of federalism for it to overrule the decision of the states or to issue binding guidelines for all states to declare drought. State Governments could face situations under which they may need to deviate from the guidance given in the Manual as some states are more irrigated than others, availability of water and type of crops differ.

During the proceedings, the decision of the states of Bihar, Haryana and Gujarat to not declare drought came into question.

Bihar: Bihar’s denial of drought was based on the overall rainfall deficiency figures for the state that too only until August 2015. It had not looked at district or block level information. However, rainfall in June and July 2015 in 10 out of 38 districts and by the end of October 2015 the state wide rainfall was deficient to the extent of falling within the drought range.

While deviation in the sown crop area was within normal limits, there was no assessment of crop failure from subsequent lack of rain and performance. Bihar had also ignored the NDVI and MAI for determining the extent of drought. The Court observed that taking all information into account, some districts in Bihar were facing drought, yet the state was denying it.

Haryana: Although agricultural productivity in Haryana was unaffected, the state had deficient rainfall. The state has been tapping ground water through lakhs of tube wells to supplement water from canals for irrigation. However the MAI – reflecting the moisture available for crops – at the end of Sept 2015, was observed by the SC as indicative that most of the state was in the grip of a severe or moderate or mild drought. Indicators of drought recommended by the drought manual were ignored and a completely different set of factors such as wages, supply of essential commodities and prices (which, we feel, might not reflect the situation at the micro level) were being used by Haryana for not declaring drought.

Gujarat: Districts in Central Gujarat and South Gujarat and two districts of Saurashtra had received inadequate rainfall but the state wide rainfall was relied upon the State to deny deficiency in rainfall.

The SC directed that the Manual should specify the weightage to be given to each of the four key indicators as far as possible. This would make the State governments consider all factors appropriately rather than only focussing on area of crop sown.

Standardization of drought declaration The SC directed that the nomenclature and methodology for declaring drought be standardized. The Gujarat government was seen using the term ‘semi-scarcity’ instead of ‘drought’.

Traditionally, declaration of drought was recommended through the annewari / paisewari / girdawari system which provides an estimate of agricultural losses after crop production. The Drought Manual has recommended discarding the annewari system. Yet, Gujarat and Maharashtra continue to use the annewari system; the cuttoff for drought in Maharashtra is 50% decrease in crop, while in Gujarat, ‘scarcity; is declared if the crop produce is less than 33% and the state government uses its discretion when it falls between 33-50% to declare ‘semi-scarcity’. Gujarat ignores NDVI and MAI in favour of the traditional annewari system citing that the moisture indices are low because of the type of the soil. (But it is the deviation of the NDVI from the normal value in the area which is used for drought assessment. MAI also takes soil characteristic into account.)

The SC directed that the manual should include more relevant factors and reduce the flexibility available to states in declaring drought.

Timely drought declaration Declaration of drought was inordinately delayed in Gujarat – the state declared semi-scarcity in 526 villages on Apr 1 2016 and subsequently declared another 468 villages as affected by drought. Maharashtra, which also uses the annewari system, completed estimation exercise and declared drought hit districts in October 2015. All states that declared drought completed their assessment exercise between August 2015 and December 2015. Final figures of the Kharif crop are available in December and there is nothing to wait for until March of the following year to declare drought.

The SC directed that the drought manual should mandate a time limit for declaring a drought.The Manual currently recommends that States declare drought in October as the complete rainfall figures, reservoir storage and crop conditions are known by then. Timely drought declaration is necessary to provide relief and assistance required to the drought affected people in near real time. The SC came down on the delayed declaration by Gujarat government saying that the declaration was too late for the people in distress and can only facilitate crisis management rather than preventive management of risk to avoid distress.

Regarding declaration of drought The SC observed that drought need not be declared in the entire state or even in an entire district as the manual allows that state government may declare drought even at the level of Taluka / Tehsil / Block as the information on the recommended indices for drought declaration are available at that level.

While the final decision to declare a drought is of the State Governments, the Centre is also responsible for upholding the right to life of the people under Article 21 of the Constitution. The Central government has to maintain a balance between its constitutional responsibility to the people and the principle of federalism preventing the Centre from trudging in the domain of the states

3. Other Directions The Court directed considering social factors such as migrations, suicides and extreme distress in assessing and managing drought.

Water conservation techniques should be considered to prevent and prepare for droughts.

Drought Relief While the petition had also sought directions for drought relief for farmers including compensation for crop loss, input subsidy for next crop, restructuring crop loans and subsidizing cattle fodder, the court did not give any such direction.

The drought manual recommends that relief measures should be implemented as soon as distress signs of drought are visible even before a drought is formally declared. The manual recommends organizing of relief measures for Contingency crop planning providing alternatives that withstand drought conditions, Relief employment to check migration and provide livelihood, Water resource management for supply of drinking water, Food Security, provision of fodder for cattle, containing health issues arising from contaminated water and poor levels of nutrition and assistance to dependent population such as the aged, children etc.

Formal declaration of drought is necessary only for the state to seek assistance from the Central Government and for providing relief through tax waivers and concessions.

Directions regarding NREGA The government admitted that funds released are not adequate and delayed.  It was admitted that for the financial year 2015-16 the liability was in excess of Rs.12,000 crore. The Court observed that delayed payments act as a disincentive to work under the Scheme. It directed the government to release adequate funds in a timely manner and ensure that compensation is made to workers whose wages have been delayed beyond 15 days. In view of the poor performance of the scheme, the Court directed the government to ensure that the provisions of the Act are faithfully implemented.

Directions for implementation of the National Food Security Act The NFS Act has not been implemented in some states although the legislation was passed in July 2013.

The Court directed that in the States in which drought is declared, all households should be provided with their monthly entitlement of food grains in terms of the NFS Act regardless of whether they fall in the category of priority household or not. In case the household does not have a ration card, it should be provided food grains under the NFS Act using alternate identification or residence acceptable to the State Government. The Court also directed extention of the Mid-Day Meal Scheme for children during the summer vacation period in schools in drought-affected areas.

The petitioner suggested that households affected by the drought be provided 2 kg of dal per month and one litre of edible oil per month at subsidized rates through the Public Distribution System.

The Central government declined claiming that it was faced by fiscal constraints to subsidize dal and oils. While the Court found that it was unable to direct the government to subsidize dal and oils, it drew the attention of the government to the Directive Principle under Art 47 enjoining the State to raise the level of nutrition and the standard of living of the people. It held that relief to persons in drought affected areas cannot be denied on grounds of fiscal constraints. The Court buttressed with case law the view that plea of financial inability cannot be used to abdicate constitutional obligations such as provision of free legal services, adequate medical services etc. The principle extends to the obligation of upholding the right to food, which is a constitutional right.

Conclusion: Agriculture is facing a crisis because of wrong policies and programs like prioritising big irrigation projects that are delivering only impacts and no new benefits, poor water management, wrong cropping patterns, lack of support for appropriate crops and farmers, degradation of land, over exploitation of ground water, high prices of inputs, poor support for farmers. Farm incomes are unsustainably low and are in a precarious condition. In such a scenario, a drought pushed the farmers over the verge. Farmers talk of earlier times when they were not so hard pushed and they could still rely on ground water and water in the wells when rains failed. In many ways it is the policies adopted by successive governments which have led to the extreme impact of the present drought.

The drought hit in the states which have declared drought have not received much by way of relief. The Centre has approved amounts much smaller than what has been sought by states for drought assistance and only a fraction of the approved amount had been released until Mar 2016 for the drought suffered in the Kharif crop season of 2015.  The compensation amounts which are yet to make their way to the farmers after months are lesser than the cost of cultivation.

In the past, drought relief was a source of income for the rural economy providing immense scope for corruption the benefits of which were reaped by contractors with a small part trickling down to the drought affected people. States were overzealous in declaring droughts.Funds were made over for plans to mitigate impacts of lean rainfall in drought prone areas and yet these areas saw no change. However the recent trend of states refusing to declare drought seems an outcome of the pressure on governments from investors and market forces to decrease social spending and commit to austerity and also continue to flog growth horse by hook or by crook. Expenditure on the agricultural sector is seen as wasteful and subsidies for farmers as market distorting, whereas subsidies for industry and commerce as incentives. Reluctance of governments to implement the National Food Security Act or to encourage employment under NREGA is also an outcome of this pro-business bias in policies.

Compiled by Anuradha (uv.anuradha@gmail.com), SANDRP