Commenting on the judgment of the Supreme Court – delivered on May 11, 2016, on Swaraj Abhiyan’s petition – wherein the Supreme Court has directed the central government to establish a National Disaster Mitigation Fund (NDMF), finance minister Arun Jaitley said in the Rajya Sabha, “Step by step, brick by brick, the edifice of India’s legislature is being destroyed.” Jaitley expressed his anguish that after the Appropriation Bill was passed by parliament, the Supreme Court asked the government to create a fund, which was akin to subjecting budget-making by the government to judicial review. The court also directed that the NDMF be established as per provisions of the Disaster Management Act, 2005 within three months from the passing of the judgment.
Ten years on but no NDMF
Careful scrutiny reveals that section 47 of the Disaster Management Act, which provides for establishment of the NDMF, actually uses the word ‘may’ when it talks about the creation of the NDMF by the government. The Supreme Court in its judgment noted that even after 10 years of passing the Act, the fund, aimed at reducing the risk of disaster, had not been created and this amounted to not respecting the mandate of the legislation. In this context, the use of ‘may’ in Section 47 of the Act was rightly held by the Supreme Court as not intended to give the government a choice of whether to set up such a fund, but only to give it some time to do so.
Swaraj Abhiyan’s petition was filed to ensure that the government is asked to do what it is constitutionally and legally bound to do – fight the menace of drought. Apart from the establishment of the NDMF, the Supreme Court also directed the constitution of a regular specialist cadre of the National Disaster Response Force (NDRF) within six months. Unlike Section 47, Section 44 of the Act uses the word ‘shall’ for the constitution of this force, yet even after 10 years, the mandate of the provision remains unfulfilled. Similarly, the court also ordered the government to prepare a national disaster plan, as mandated by Section 11 of the Act which again uses the word ‘shall’ for it. However, the court did not fix any deadline for preparing this plan but directed that it should be done at the earliest and with immediate concern.
Judicial overreach and the government
It is discomforting that provisions of a legislation, passed by the parliament, have been abandoned by the government even after the commencement of the legislation. Does asking the government to follow statutory requirements amount to judicial overreach or what is pejoratively referred to as judicial activism? The government can’t be squeamish about the fact that courts in India exercise jurisdiction in petitions like the one filed by Swaraj Abhiyan. The Supreme Court in many cases has held that right to life under Article 21 of the constitution includes the right to live with human dignity and that a dignified life mandates access to basic human needs. A situation of drought certainly deprives many from access to basic human needs. Since fundamental rights are guaranteed by the recourse to Article 32, this petition was filed under Article 32 before the Supreme Court.
Objections have always been raised in the past against the broadening of the ambit of Article 21 by the Supreme Court in this manner, as the realisation of these rights by the court will impinge upon the policy discretion of the executive and the legislature. But insisting that the government follow its legislative and other policy commitments appears to be a very constitutional way of not obliterating the boundaries of the separation of power principle. While at the same time ensuring that the right to a dignified life is not reduced to empty rhetoric or left completely at the mercy of the political class.
Drought situation and food security
Four separate judgments were delivered on May 11 and May 13 by a two judge Supreme Court bench comprising of Justice Madan B. Lokur and Justice N. V. Ramanna on the petition filed by Swaraj Abhiyan dealing with four separate issues.
The first petition deals with the drought-like situation in a few states and the response mechanism of the government by way of the Disaster Management Act; the second deals with the implementation of the National Food Security Act, 2013 (NFSA) and mid-day meal scheme in the areas affected by drought or drought like situations; the third relates to the issue of implementation of the Mahatma Gandhi National Rural Employment Guarantee Act, (MNREGA) 2005 and the schemes framed under it and the fourth deals with issues related to poor farmers like crop loss, fodder bank and crop loan restructuring and relief.
Bare readings of these judgments reveal that the Supreme Court has been very careful not to encroach upon the realm of the other organs of the state. For example, in the fourth judgment, the court refused to pass any direction to the government except to religiously implement their policies, accepting that issues like compensation for crop loss, fodder banks, crop loan restructuring were policy matters and the court was not competent to examine the efficacy of policies meant to address these problems.
In its second and third judgment also, the court only insisted upon implementation of the provisions of the NFSA, MNREGA and the schemes and rules framed under them. The Supreme Court particularly lamented the fact that the authorities required to be set up under the Acts to oversee implementation had not been constituted. The court in its second judgment, therefore, ordered that the states must establish state food commissions as mandated by Section 16 of the NFSA within two months. All such states were also directed to appoint or designate for each district a district grievance redressal officer, as envisaged by Section 14 and 15 of the NFSA. The court also directed that the benefits of the Act should not be denied to households that did not have ration cards and any appropriate identity proof acceptable to the government should be accepted. It also directed that the mid-day meal should be distributed with egg or milk or any other nutritional supplement during summer vacations in the schools in the respondent states.
In its third judgment, the court directed the timely release of money by the central government to states for the payment of wages wherein, the court noted the unconscionable delay in the release of funds. The court further directed that the authority meant to oversee the implementation of the MNREGA – the Central Employment Guarantee Council as per Section 10 of the Act – be constituted within 60 days from the judgment. It also called upon the central government to urge state governments to positively constitute the state employment guarantee council as mandated by MNREGA within 45 days of the judgment.
Waking up to the marginalised
Justice Lokur in the third judgment of the Supreme Court observed, “Social justice has been thrown out of the window by the government of India.” It is distressing to observe that governments have to be reminded of their statutory obligations by the courts and that too when those obligations are for the welfare of the most marginalised sections of society. The governments, after enacting and enforcing legislation, cannot continue to treat their statutory obligations at par with the obligations flowing from the directive principles of state policy of the constitution – allowing themselves the luxury of claiming lack of adequate resources and consequent immunity from judicial scrutiny for glaring omissions. It is a sad commentary on the state of affairs that even positive rights flowing from welfare legislation have to be enforced by the intervention of the courts.
Manwendra Kumar Tiwari is Assistant Professor, Dr. Ram Manohar Lohia National Law University, Lucknow.