Ashok Parija
Deeply concerned about the drought that has affected about 33 crore people, the Supreme Court bench of Justice Madan Lokur and Justice NV Ramana, in a landmark judgement delivered in May, took the executive to task for its half-hearted implementation of the Disaster Management Act, 2005, over the past 10 years.
The apex court issued a string of directions to the government, which included a mandate to set up the National Disaster Mitigation Fund (NDMF) within three months to combat drought in 11 out of 29 states in the country.
This judicial mandate put the Centre in a tight spot as it prepared the Appropriation Bill to be passed in the budget session. In fact, the Parliament passed the bill shortly. The bill authorises government expenditure and permits withdrawal from the Consolidated Fund of India under preplanned expenditure, and cannot be amended.
The government was forced to revise its budget to set up the NDMF. Understandably, this interference did not go down well with Finance Minister Arun Jaitley. He issued strong statements in Parliament saying that judicial overreach was destroying the edifice of parliament “brick by brick” and encroaching upon its budget-making powers.
In this context, the question which merits further consideration is: Did the Supreme Court exceed its constitutional mandate by interfering with executive discretion on policy and budget-making or was it forced to step in to fill the constitutional void left by executive inaction over the last decade?
The judgement was delivered on a PIL filed by the NGO Swaraj Abhiyan. It sought a direction that drought be declared in Gujarat, Haryana and Bihar and for providing relief and compensation to drought-affected people.
During the hearing, the attention of the apex court was drawn to the fact that at least one-fourth of India’s population was suffering from drought. Consequently, the affected populace is not assured of even two square meals a day or minimum crop yield. They are being driven into a debt trap that leads to farmer suicides.
Despite such calamitous circumstances, state governments denied the existence of drought. The problem was compounded by improper macro-level assessment, overlooking of critical micro-level data, delaying assessment of impact of droughts. Often such impact assessment is not being carried out in accordance with official guidelines but through vague traditional systems.
The central government, on its part, also failed to set up the NDMF, constitute a National Disaster Response Force or formulate a national plan for risk assessment, risk management and crisis management, although more than 10 years had passed since enactment of the Disaster Management Act, 2005.
Moreover, instead of using its resources to guide and aid states in dealing with the crisis, the Centre sought to wash its hands off the crisis.
Although the SC has noted the dangers of judicial overreach in its pronouncement, it has also proceeded to issue controversial directions to the government since it could not ignore the plight of the large population stricken by drought in the face of “ostrich-like” attitude of the executive.
Executive apathy in dealing with natural disasters, especially droughts, and the Judiciary coming to the aid of the suffering populace is nothing new. For instance, in 1985, treating a letter written by a social worker Kishen Pattnayak to the chief justice of India as public interest litigation, the Supreme Court appointed a district-judge-led committee to investigate the extent of drought, famine and starvation deaths in Koraput and Kalahandi.
After reviewing the measures taken by the state government, the Supreme Court directed it to nominate at least five persons from recognised voluntary organisations as members of the District Natural Calamities Committee to review progress of relief work and the measures taken to remedy drought.
The Supreme Court has been constantly evolving and expanding the scope of fundamental rights guaranteed by the Constitution since the 1970s to ensure meaningful, complete and effective protection to people who are deprived of rights due to legislative or executive impassiveness.
Though the actions of judiciary are motivated by humanitarian concerns of protecting the fundamental right to life and dignity guaranteed under Article 21 of the constitution, it is invariably accused of overreaching its mandate and encroaching upon the domain of the executive and legislature.
Through its judgement, the apex court could perhaps have averted some criticism by giving the government time to come up with detailed reports on finances available and deficits under the existing disaster relief funds. But when one-fourth of the country’s population was affected by drought, did the court have time to spare?
In this context, it is relevant to refer to Australian jurist and former Justice of the High Court of Australia, Michael Kirby, whose views on judicial activism has been liberally quoted in the judgement:
“It is beyond contest that some of the accretions of power to the judiciary over the last century have come about as a result of failures and inadequacies in lawmaking by the other branches and departments of government. Constitutional power hates a vacuum.”
The author is a senior advocate and former chairman of Bar Council of India.