Judicial intervention

Supreme Court steps in, again

Print edition : March 04, 2016
The Supreme Court goads Central and State governments to respond to drought seriously.

“IS Gujarat not part of India? Is the State not bound to implement an Act passed by Parliament? Do you [Gujarat] want to break away from the Union of India? What is the Government of India doing? What is Parliament doing?” asked Justice Madan B. Lokur of the Supreme Court on February 1, in response to Solicitor General Ranjit Kumar’s admission that Gujarat is one of the States which are guilty of non-implementation of the National Food Security Act (NFSA).

The admission by the senior Central government law officer came during the course of hearing a petition filed by Swaraj Abhiyan, a non-governmental organisation run by the psephologist Yogendra Yadav and the advocate Prashant Bhushan. The NFSA mandates the State administration to provide 5 kilograms of rice/wheat per member every month to all families living below the poverty line, and the court was keen to know which of the 12 drought-affected States had implemented the law.

Swaraj Abhiyan sought the court’s direction to ensure that foodgrains are distributed to not just below poverty line (BPL) families but also to all those living in States facing severe rural crises. Besides, it sought a direction on the distribution of pulses and edible oil to the affected people and milk and eggs to children under the midday meal scheme.

When Ranjit Kumar told the bench comprising Justice R.K. Agrawal that Gujarat had reservations on the Act and, therefore, was yet to enforce it, the bench asked: “Is Gujarat unique?” “As of now, the Act stands. Tomorrow, Bihar will say we are not implementing it because Gujarat is not implementing it,” the bench said and expressed its shock at the brazen defiance of the Central Act by a State government. The 12 drought-affected States which have been listed as respondents in this case are Uttar Pradesh, Madhya Pradesh, Karnataka, Andhra Pradesh, Telangana, Maharashtra, Gujarat, Odisha, Jharkhand, Bihar, Haryana and Chhattisgarh.

When Ranjit Kumar said that besides Gujarat eight other States had not implemented the Act, and that he did not readily have details of those States, the bench was worried that other States would refuse to implement the Act and in defence cite Gujarat’s defiance. In December, Swaraj Abhiyan sought the Supreme Court’s intervention to provide relief and compensation to farmers and other people suffering from the harsh effects of a second consecutive drought year, which, it claimed, was resulting in a severe livelihood crisis, mass migrations, severe malnutrition, starvation deaths, a fodder crisis for cattle, and increasing the debt burden on farmers and leading to a rise in farmers’ suicides.

Swaraj Abhiyan told the court that the fact of drought had been admitted by the Central government and various State governments. Eight States had already declared drought, and the Central government had informed Parliament about drought affecting 1.9 crore hectares of land in seven States.

Swaraj Abhiyan claimed that it conducted a survey in 108 representative villages in the severely affected Bundelkhand region of Uttar Pradesh, which showed alarming figures: 39 per cent of the families had not consumed dal even once in the 30 days before the survey date and 60 per cent had not consumed milk and 14 per cent had gone to bed hungry at least once during this period. It further revealed that 40 per cent of the families had resorted to distress sale of their cattle, 24 per cent had mortgaged or sold their land and 79 per cent had eaten roti or rice with just salt or chutney at some point since the crop failure around Holi last year.

Swaraj Abhiyan informed the Supreme Court that there were many instruments available to the Central and State governments to respond to drought. Each State had a State Disaster Relief Fund (SDRF) and the Central government had a National Disaster Relief Fund (NDRF) for the purpose. Each State, it said, had its Drought/Famine Relief Code, usually part of the Revenue Code Book that spelt out the relief work a government should carry out in the eventuality of a drought.

Swaraj Abhiyan, however, pointed out that the funds available under the SDRF were so meagre that these could not meet even one of the contingencies they were meant for. The total funds allocated to the SDRF for all States for five years was about Rs.61,000 crore, which worked out to about Rs.12,000 crore a year for all States.

The overall damage from the ongoing drought, the petition said, was likely to be well over Rs.20,000 crore. In such a situation the States were expected to approach the Central government for the NDRF. But, the petition said, the funds remained inadequate and the process of allocation was non-transparent.

The petition pointed out that the NFSA placed obligations on the State to provide 5 kg of foodgrains a month to each person in the family. Most States have not yet fulfilled this. Except for Bihar and Madhya Pradesh, States had stuck to the previous public distribution system (PDS) schemes that fell short of the NFSA obligations, it said. It further claimed that the APL (above poverty line)/BPL distinction used by most of the States was useless and that the implementation of the NFSA had positive outcomes for Bihar and Madhya Pradesh.

The petition said the rising price of dal had made it unaffordable for the poor and added that there was a need to provide at least 2 kg of dal a family a month and eggs for schoolchildren through the midday meal scheme and for children below six years of age through the Integrated Child Development Services (ICDS) scheme. It also sought a direction for the provision of subsidised cattle fodder for animals in the drought-hit areas; restructuring of crop loans for damaged crops and other debts of farmers; formulation of uniform rules for the purpose of declaration of drought; fixing of a fair, objective and transparent package for crop-loss compensation; and the formulation of an integrated water policy to prepare for any future drought.

The petition pointed out that the drought had led to a severe decline in farm employment available to the rural poor. It was the duty of governments to provide additional employment during the drought period. Yet, the number of person days of employment offered under the Mahatma Gandhi National Rural Employment Gurantee Scheme (MGNREGS) actually went down from 220 crore person days in 2013-14, a normal year, to 166 crore person days in the drought year 2014-15 and was now down to 122 crore person days in 2015-16 so far, the petition stated.

Employment generation was down from 96 crore person days in 2013-14 to 67 crore person days in 2014-15 to just 48 crore in 2015-16 so far. Clearly, governments failed to use the Mahatma Gandhi National Rural Employment Gurantee Act (MGNREGA) to generate employment when it mattered most, the petition said.

It claimed that Article 21 of the Constitution imposed a duty on the Central and State governments to ensure the right to life of citizens, which includes the right to live with dignity with at least two square meals a day.

Secondly, in accordance with the standard laid down under the MGNREGA, open-handed employment of 150 days at the legal minimum wage was to be provided in the drought-affected areas for all those willing to avail themselves of the same. Yet, governments had failed to do so, the petition alleged. Thirdly, the petition said, governments had failed to implement the NFSA which was intended to provide a means of food security and make available sufficient foodgrains at affordable prices to meet the domestic requirement.

The petition said the state could not avoid its constitutional obligation to safeguard the right of life of every person on account of financial constraints. The petition lamented that governments, both at the Centre and in the States, ignored the fact that the right to life included the right to live with human dignity and all that went along with it, namely, the bare necessities of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and comingling with fellow human beings.

On February 1, the bench heard the petitioners for the sixth time since December 14 last year, indicating the seriousness it accorded to the case. The bench was told that although a drought-like situation existed in Gujarat, Haryana and Bihar, there had been no declaration of drought yet in these States.

On January 18, Prashant Bhushan suggested that the affected States could examine rainfall data, give broad interpretation to the NFSA, supply dal at 2 kg a family a month, and edible oil at 1 kg a family a month in the drought-affected areas, and provide milk or eggs to children under the midday meal scheme. The effective implementation of the MGNREGA in these areas was another suggestion he made. The bench then proposed that the Secretary, Department of Agriculture and Farmers Welfare, should call a meeting of his counterparts in these States to discuss how to implement the suggestions and asked the States concerned to be ready with data during the next hearing of the case.

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