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Tuesday, December 12, 2017
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The season of scorching ironie
It is the Supreme Court and not Parliament that has found time to pay attention to serious issues of drought relief and mitigation for hundreds of millions of Indians
Irony. This one word captures our response to the ongoing nationwide drought in more ways than one. We have woken up to the reality of drought a full six months after the end of monsoon. After waking up, we focus on the drinking water crisis in urban centres and not the multidimensional crisis of life and livelihood in rural hinterland. A petition on a cricket tournament, rather than the plight of the people and its real culprits, has triggered media attention to the drought. Finally, it is the apex court of the country, and not its Parliament, that has found time to pay attention to serious issues of drought relief and mitigation.
On April 26, the Supreme Court concluded its hearing on a historic case. In an extraordinary gesture, the apex court of the land accorded highest priority to this case involving the plight of the last person affected by the second back-to-back drought in the country. Swaraj Abhiyan had filed this petition in the middle of December last year, following the failure of monsoon and early reports of rural distress. Over the last four months, a two-judge bench of Justice Madan B. Lokur and Justice N.V. Ramana held 14 hearings, running into nearly 40 hours. That is much more than the total time devoted during this period to drought by the Parliament and all the State legislatures put together.
The colonial mindset persists
What makes this case truly historic is not just the time and attention it received, but the range and nature of questions it involved. Starting as a petition for immediate drought relief, this case has grown into a judicial review of the state policy on rural distress and agrarian crisis. This case could well mark a transition from the colonial framework to a constitutional framework of responding to a natural disaster like drought. During the British Raj, documents called Famine Codes laid down how the government was to act during famine-like conditions. The colonial approach was, naturally, minimalist and stingy. The idea was to spend as little money as possible while avoiding loss of lives.
This colonial mindset continued to inform the administrative approach to drought even after independence. Famine Codes continued in one form or another. Democratically elected governments brought about some improvements like Maharashtra’s Employment Guarantee Scheme (which inspired the Mahatma Gandhi National Rural Employment Guarantee Scheme or MGNREGS), Public Distribution System and Mid Day Meal scheme. Technology for forecasting and tracking droughts has grown in leaps and bounds. Yet the governmental practices continued to be archaic and conservative. The patwari continues to be the eye of the government; ‘annawari’ or ‘paisawari’ is still the method to determine crop failure and the farmers continue to be paid ridiculously low amounts as crop-loss compensation, and that too after delays and bribes.
Need for a new framework
Swaraj Abhiyan contended in the Supreme Court that it was time to shift to a new framework based on citizen entitlements, fuller responsibilities of the constitutional governments for drought relief, emphasis on drought mitigation and elimination of arbitrariness and political patronage from drought declaration and relief operations. Lawyer Prashant Bhushan argued that many elements of this new framework were already in place. The country has a Disaster Management Act of 2005 that gives special powers and responsibilities to the Central government. We now have a National Disaster Management Authority headed by the Prime Minister. The Manual of Drought Management of 2009, a comprehensive document issued by the Ministry of Agriculture of the Union government, can replace the archaic Famine Codes. Finally, all the weather station and remote sensing-sourced data has been brought together in the form of Agricultural Drought Assessment Report issued for major States every month by the Mahalanobis National Crop Forecast Centre. Someone needs to bring all this together and operationalise it.
This should normally be the responsibility of the executive. The Central government and the various State governments were expected to give life to this new framework. However, this case brought out the sheer lack of political will on the part of democratically elected governments to extend elementary entitlements to their own citizens. The Central and the 12 State governments, the respondents in this case, were repeatedly found unaware of their own regulations and unwilling to implement these. The court witnessed games of procrastination and passing the buck, and was constrained to comment on this more than once.
Strangely, it was left to the petitioner to place on record all the key documents of the Government of India. In the course of the hearing, the Central government was forced to concede that it had not fulfilled many of its statutory obligations. The National Disaster Policy required under the Disaster Management Act did not exist. The Disaster Mitigation Fund proposed under the same Act has not been created. The National Disaster Response Force did not have any expertise to deal with the drought. It also admitted that the Centre had delayed releasing assistance to States under the National Disaster Response Fund.
The Government of India did not even have the correct count of the number of people affected by the drought. The figure of 33.6 crore that it submitted to the court caused nationwide concern. In fact this was an under-estimate. The correct count of the population in areas officially declared drought-affected so far is about 43 crore. And if you take into account the districts that should have been notified but have not been so far, the total drought-affected population in the country is a staggering 54 crore, about two-fifth of the country.
Using the MGNREGS
The most startling disclosures related to the MGNREGS. This scheme could have been one of the most efficient drought relief measures and should have been used generously during the last two years. Instead, the government was not even paying for the work that had already been done. At the end of fiscal year 2015-16, the governments owed more than Rs.12,000 crore as “pending liabilities” which needed to be cleared before payments could be made in 2016-17. It also turned out that the Central government was violating its own Master Circular in not releasing the full first tranche for MGNREGS amounting to over Rs.45,000 crore (while the much touted total budget for it is Rs.38,500 crore) that was due in the first week of April. Also, the government is paying lower than statutory minimal wages to MGNREGS workers.
The court proceedings bared the real intentions of the regime. Belying the Prime Minister’s pro-farmer and pro-poor rhetoric in public, the Central government argued that it had done all it could for drought mitigation and more than beyond its means. The government’s counsel said that the state was not under any legal compulsion to offer additional dal (lentil) and edible oil in ration or milk or egg in the mid-day meal scheme as demanded by Swaraj Abhiyan. The government claimed that there was enough fodder for cattle and that all necessary steps had been taken to resolve drinking water shortage. In any case, the Central government claimed that drought relief and mitigation was the responsibility of the State governments and that it respected the spirit of federalism. This faith in federalism was touching, coming in the wake of developments in Arunachal Pradesh and Uttarakhand.
The various State governments either pretended that all was well or used resource crunch as alibi.
The cases of Gujarat, Haryana and Bihar came up for special scrutiny, as these States had not declared drought despite substantial rainfall shortage. Expectedly, the court was quite scathing in its remarks on these States.
Apex court to the rescue
Given this lack of political will, Swaraj Abhiyan had to turn to the court for a paradigm shift in the way the state responds to drought. It requested the court for three kinds of reliefs. First, Swaraj Abhiyan invoked Right to Life under Article 21 to claim some immediate drought relief measures for six months in the drought-affected areas: universal access to food-grain quota, additional 2 kg of dal and one litre of edible oil for each household (following the Tamil Nadu model), one egg or glass of milk everyday in the mid-day meal and extension of the scheme during summer vacations. It has also argued for implementation of the drought manual on drinking water and fodder, especially its recommendation of reservation for drinking water and setting up of cattle camps.

The second set of relief sought is medium to long term. This involves removing the informal cap on MGNREGS and ensuring adequate funds for employment generation, especially during the drought; restructuring of farm loans on the same lines as the famous restructuring of corporate loans; and raising crop-loss compensation to cover at least the cost of cultivation. Finally, the petitioners have pleaded for a change in the archaic and arbitrary practices of declaration of drought and fixing the responsibilities of the Central and State governments in handling a disaster of this kind. The Abhiyan has urged the court to appoint independent commissioners to monitor the implementation of court orders.
The judgment has been reserved by the Supreme Court and is expected any day. Judicial scrutiny so far has already forced various governments to move on drought relief. The Central government has had to agree in the court to increase the first instalment of MGNREGS funds from Rs.7,000 crore to over Rs.19,000 crore and to clarify that there is no budget cap on the scheme. It also agreed to revise the rates of crop-loss compensation and implement it in the coming financial year. After dragging their feet for over two years, Gujarat and Uttar Pradesh governments were forced to implement the National Food Security Act.
It is only befitting in this season of ironies that the substance of this case has largely escaped national attention. On April 27, the Supreme Court was in the news concerning drought — but it pertained to the court confirming the High Court stay on IPL matches in Maharashtra!
Yogendra Yadav is with Swaraj Abhiyan and is the National Convener of its Jai Kisan Andolan
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