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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 857 OF 2015

Swaraj Abhiyan – (I)              .…Petitioner

versus

Union of India & Ors.                             .…Respondents  

J U D G M E N T

Madan B. Lokur, J.

Lokmanya Tilak said:  

“The problem is not lack of resources or capability, but the lack of  

Will.”

1. This  lack of  Will  is  amply demonstrated in this  public interest  

litigation  under  Article  32  of  the  Constitution,  in  which the  States  of  

Bihar, Gujarat and Haryana are hesitant to even acknowledge, let alone  

address, a possible drought-like situation or a drought by not disclosing  

full  facts  about  the  prevailing  conditions  in  these  States.  A  candid  

admission  does  not  imply  a  loss  of  face  or  invite  imputations  of  

ineffective governance – it is an acknowledgement of reality. An ostrich-

like attitude is a pity, particularly since the persons affected by a possible  

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drought-like situation usually belong to the most vulnerable sections of  

society.  The  sound  of  silence  coming  from  these  States  subjects  the  

vulnerable to further distress. During the hearing of this public interest  

petition, no one alleged a lack of effective governance, only the lack of an  

effective  response  and  therefore  we  are  at  a  loss  to  understand  the  

hesitation of these States. Ironically, towards the fag end of the hearing,  

Gujarat finally admitted the existence of a drought in five districts – a fact  

that could have been admitted much earlier. But at least, it is better late  

than never. However, Bihar and Haryana continue to be in denial mode.

2. It is not as if a drought is required to be declared in the entire  

State or even in an entire district. If a drought-like situation or a drought  

exists in some village in a district or a taluka or tehsil or block, it should  

be so declared. The failure of these States to declare a drought (if indeed  

that is necessary) effectively deprives the weak in the State the assistance  

that they need to live a life of dignity as guaranteed under Article 21 of  

the Constitution.  

3. To compound the problem, the Union of India has introduced the  

concept of ‘federalism’ and canvasses the view that a disaster requires the  

Union of India to primarily provide financial assistance and any other  

assistance  if  it  is  sought  by  the  State  Government.  A declaration  of  

drought and its management is really the concern of the States. Surely, if  

a State Government maintains an ostrich-like attitude, a disaster requires  

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a  far  more  proactive  and  nuanced  response  from the  Union of  India.  

Therefore, in such a state of affairs the question that needs to be asked is:  

Where does the buck stop?  

4. In this decision and for the present, we propose to deal only with  

the  submissions  relating  to  the  prevailing  drought  situation  or  the  

drought-like situation in the States before us since there is some urgency  

in deciding it. We shall deal with the other issues raised by the petitioner  

in  subsequent decisions as  they are in  a sense quite  disparate,  though  

linked to the drought situation or the drought-like situation.   

Background     

5. The  petitioner  Swaraj  Abhiyan  has  filed  this  public  interest  

petition under Article 32 of the Constitution. Before taking up the case for  

final hearing, we put it to learned counsel appearing on behalf of Swaraj  

Abhiyan whether the petitioner is a political party. We were informed that  

it is an unregistered non-government organization and is not a political  

party. We put this question to learned counsel for two reasons: firstly, we  

were of the prima facie opinion that the reliefs sought in the writ petition  

arising  out  of  drought-like  conditions  and  a  declaration  of  drought  in  

some parts of the country was not a political issue but a matter of grave  

humanitarian distress and invited concern for the affected persons and  

animals,  particularly  livestock.  Secondly,  we  have  some  prima  facie  

reservations  whether  a  public  interest  litigation initiated  by a  political  

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party should at all be entertained. Since we were given an assurance that  

Swaraj  Abhiyan is not  a political  party and humanitarian concern was  

uppermost, we proceeded to hear the petition on merits.

6. The writ  petition was filed in the backdrop of  a declaration of  

drought  in  some districts  or  parts  thereof  in  nine  States  that  is  Uttar  

Pradesh,  Madhya  Pradesh,  Karnataka,  Andhra  Pradesh,  Telangana,  

Maharashtra,  Odisha,  Jharkhand  and  Chhattisgarh.  Drought  or  “semi-

scarcity”  has  since  been  declared  very  recently  in  April  2016  in  526  

villages followed by another 468 villages in Gujarat as well. All these  

States are respondents in this writ petition along with the Union of India.  

According to Swaraj Abhiyan drought ought to be declared in most parts  

of the respondent States of Bihar, Gujarat and Haryana. It has, therefore,  

sought a direction to these three States to declare a drought and provide  

essential relief and compensation to people affected by the drought. The  

prayer  for  a  declaration  of  drought  in  Gujarat  has  seemingly  become  

infructuous, but we do have a lot to say about the response (or lack of it)  

by the State Government in Gujarat.  

7. The petitioner has also prayed that all the respondents before us  

(13 in number including the Union of India) be directed to provide to the  

farmers affected by drought adequate and timely compensation for crop  

loss and input subsidy for the next crop. A prayer has also been made for  

a  direction  to  the  respondents  to  make  available  timely  payment  for  

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employment (more particularly to the drought affected people) under the  

Mahatma  Gandhi  National  Rural  Employment  Generation  Scheme  

framed  under  the  Mahatma  Gandhi  National  Rural  Employment  

Guarantee Act, 2005 (for short “the NREGA Act”).  It has also prayed  

that food grains be made available as specified under the National Food  

Security Act, 2013 (for short “the NFS Act”) to the rural populace in the  

drought affected areas irrespective of their classification of being above  

the poverty line or below the poverty line.  

8. Similarly, it is prayed that milk or eggs be made available to all  

children who are covered by the Mid Day Meal Scheme or the Integrated  

Child Development Scheme in the drought affected areas. With particular  

reference to the farmers, it is prayed that crop loans for damaged crops  

and other debts of farmers in the drought affected areas be restructured  

and a fair, objective and transparent package for crop loss compensation  

be fixed.  With regard to livestock in drought affected areas it is prayed  

that a direction be given to provide subsidized cattle fodder.  

9. During the pendency of the writ petition, several affidavits were  

filed by the Union of  India  and by the respondent  States.  The record  

being somewhat unwieldy learned counsel for the petitioner Mr. Prashant  

Bhushan submitted a ‘Written Revised Note’ for our convenience. The  

Note is based on the information culled out from the various affidavits on  

record. This has been supplemented by a detailed document styled as a  

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‘Final Rejoinder’ which is really an aggregation of the submissions made  

on behalf of the petitioner.  

10. The Union of India has filed a counter affidavit on or about 15th  

January, 2016, an additional affidavit on or about 10th February, 2016 (the  

first affidavit), another additional affidavit on or about 19th March, 2016  

(the second affidavit),  yet  another additional  affidavit  on or  about 28th  

March, 2016 (the third affidavit which is in response to the Note) and an  

affidavit  filed  on or  about  11th April,  2016  (the  fourth  affidavit).  The  

learned Additional  Solicitor  General  also handed over  (on our asking)  

some additional but relevant documents.  

11. The  Note,  the  Final  Rejoinder,  the  third  affidavit  filed  by  the  

Union of  India  and the list  of  documents are  the principal  documents  

referred  to  and  relied  upon  during  oral  submissions  by  the  learned  

Additional Solicitor General. With regard to the declaration of a drought,  

affidavits  were  also  filed  by  the  three  States  that  we  are  primarily  

concerned with - Bihar, Gujarat and Haryana. Learned counsel for these  

States  also  handed  over  some  documents  during  the  course  of  their  

submissions. The sum and substance of their affidavits and the documents  

are generically dealt with in the affidavits filed by the Union of India.    

12. On  the  commencement  of  hearing,  we  made  it  very  clear  to  

learned counsel that we are treating the writ petition as one filed in public  

interest. Consequently, and even otherwise, given the backdrop in which  

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the petition is filed, we informed learned counsel that the petition ought  

not to be taken as an adversarial contest. Our concern is for the drought  

affected persons and animals and indeed we were told by all the learned  

counsel that that is also their concern. We are mentioning this because  

over the years, public interest litigation appears to be degenerating into a  

no-holds barred adversarial litigation – which it is not meant to be.  

13. Public  interest  litigation  is  necessary  in  certain  circumstances  

particularly in a welfare State such as ours. In Gaurav Kumar Bansal v.   

Union of India1 it was held that the Directive Principles enjoin the State  

to  take  all  protective  measures  to  which  a  social  welfare  State  is  

committed. It is said in paragraph 8 of the Report:  

“There is no manner of doubt that a welfare State is the protector of life and liberty   of its  citizens  not  only within the country but  also outside the country in  certain  situations.  The  concept  of  parens  patriae recognises  the  State  as  protector  of  its  citizens  as  parent  particularly  when  citizens  are  not  in  a  position  to  protect  themselves. The Preamble to the Constitution, read with directive principles, under  Articles 38, 39 and 39-A enjoins the State to take all protective measures to which a  social welfare State is committed. Interestingly, this doctrine has been recognised in  India even before the Constitution came into force.”

14. There are occasions when people in disadvantaged situations are  

unable to have access to courts and therefore access to justice and need  

someone to speak up for them. How else can a welfare State function  

effectively  if  it  cannot  even  hear  let  alone  listen  to  what  the  

underprivileged and needy people have to say? In Sheela Barse v. Union  

1 (2015) 2 SCC 130

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of  India2 this  Court  held  that  public  interest  litigation  is  intended  to  

prevent the violation of rights of those segments of society that cannot  

assert their rights owing to poverty, ignorance or other disadvantages. It  

was said in paragraph 11 of the Report:  

“The  compulsion  for  the  judicial  innovation  of  the  technique  of  a  public  interest  action  is  the  constitutional  promise  of  a  social  and  economic  transformation  to  usher  in  an  egalitarian  social  order  and  a  welfare  State.  Effective  solutions  to  the  problems peculiar  to  this  transformation  are  not  available in the traditional judicial system. The proceedings in a public interest  litigation are, therefore, intended to vindicate and effectuate the public interest  by prevention of violation of the rights, constitutional or statutory, of sizeable  segments  of  the  society,  which  owing  to  poverty,  ignorance,  social  and  economic disadvantages cannot themselves assert — and quite often not even  aware of — those rights.”   

15. Public interest litigation presents the Court with an issue based  

problem  concerning  society  and  solutions  need  to  be  found  to  that  

problem  within  the  legal  framework.  Sometimes,  the  cause  of  the  

problem  is  bureaucratic  inactivity  and  apathy;  sometimes  executive  

excesses that cause the problem and sometimes the problem is caused by  

the ostrich-like reaction of the executive. These situations represent the  

broad contours of public interest issues brought to the notice of the Court,  

and these are the kind of issues for which we need to search for solutions.  

The  successful  pursuit  of  appropriate  solutions  and  consequent  

conclusions  and  directions  are  often  pejoratively  and  unfortunately  

described as judicial activism. In this context, it is worth quoting Justice  

2 (1988) 4 SCC 226

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Michael Kirby a former judge of the High Court of Australia who says in  

his Hamlyn Lecture “Judicial Activism – Authority, Principle and Policy  

in the Judicial Method”3 with reference to our country as follows:

“The acute  needs  of  the  developing  countries  of  the  Commonwealth  have  sometimes  produced  an  approach  to  constitutional  interpretation  that  is  unashamedly described as “activist”, including by judges themselves. Thus in  India, at least in most legal circles, the phrase “judicial activism” is not viewed  as one of condemnation. So urgent and numerous are the needs of that society  that anything else would be regarded by many— including many judges and  lawyers—as an abdication of the final court's essential constitutional role.  

One  instance  may  be  cited  from  Indian  experience:  the  expansion  of  the  traditional notion of standing to sue in public interest litigation. The Indian  Supreme Court has upheld the right of prisoners, the poor and other vulnerable  groups to enlist its constitutional jurisdiction by simply sending a letter to the  Court. This might not seem appropriate in a developed country. Yet it appears  perfectly adapted to the nation to which the Indian Constitution speaks. Lord  Chief Justice Woolf recently confessed to having been astounded at first by the  proactive approach of the Indian Supreme Court in this and other respects.  However, he went on:

“.. . I soon realised that if that Court was to perform its essential role  in Indian society, it had no option but to adopt the course it did and I   congratulate it for the courage it has shown”.

Much later, Justice Kirby goes on to say:

“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. Where it exists, in the form of silence,  confusion  or  uncertainty  about  the  law,  it  is  natural  that  those  affected,  despairing of solutions from the other law-making organs of government, will  sometimes approach the judicial branch for what is in effect a new rule. They  will seek a new law that responds quickly to their particular problem. When  this happens judges, if they have jurisdiction in the case, are not normally at  liberty  to  just  send  the  parties  away.  How  do  they  decide  whether  the  fulfilment of their judicial role permits, or requires, the giving of an answer or  obliges them to decline and force the parties to return to the politicians or  bureaucrats? To what extent must judges defer to Parliament, when they know  full well, from many like cases, that nothing will be done because the problem  

3 The Hamlyn Lectures, Fifty-fifth Series, 2003

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is too particular, divisive, technical or boring to merit political attention and  parliamentary time? What, in other words, is the judicial role in the particular  case?”

To be sure, judicial activism is not an uncomplimentary or uncharitable  

epithet to describe the end result of public interest litigation. Those who  

benefit  from judicial  activism shower praise  and those who are  at  the  

receiving end criticize it. C’est la vie!  

16. Keeping this and the common Indian in mind, we have proceeded  

to hear and decide this petition and we acknowledge that learned counsel  

made their submissions in the spirit expected of them on such a vital issue  

as risk management, drought assessment and drought management.  

The Disaster Management Act, 2005

17. The Disaster  Management  Act,  2005 (hereinafter  referred to as  

“the DM Act”) has been on the statute book for more than a decade since  

it  received  the  assent  of  the  President  on  23rd December,  2005.  The  

Statement of Objects and Reasons for enacting the DM Act is, inter alia,  

as follows:-

“The Government  have decided to  enact  a  law on disaster  management  to  provide for requisite institutional mechanisms for drawing up and monitoring  the implementation of the disaster management plans, ensuring measures by  various wings of Government for prevention and mitigating effects of disasters  and for undertaking a holistic, coordinated and prompt response to any disaster  situation.”  

18. It is quite clear from the above that the object of the DM Act is  

not only to draw up, monitor and implement disaster management plans  

but also prevent and mitigate the effects of a disaster.

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19. Section  2(d)  of  the  DM  Act  defines  “disaster”  as  meaning  a  

catastrophe,  mishap,  calamity  or  grave  occurrence  in  any  area  arising  

from natural  or  man-made  causes  which results,  inter  alia,  in  human  

suffering. A drought would certainly fall within this definition of disaster.

20. Section  2(e)  of  the  DM Act  defines  “disaster  management”  as  

meaning  a  continuous  and  integrated  process  of  planning,  organizing,  

coordinating  and  implementing  measures  necessary  or  expedient  for  

prevention of danger or threat of any disaster and mitigation or reduction  

of risk of any disaster or its severity or consequences.

21. Section  2(i)  of  the  DM  Act  defines  “mitigation”  as  meaning  

measures aimed at  reducing the risk,  impact  or  effect  of  a disaster  or  

threatening disaster situation.

22. By  virtue  of  Section  3  of  the  DM  Act,  a  National  Disaster  

Management  Authority  (for  short  “the  NDMA”)  is  required  to  be  

constituted and we are told that it has been constituted with the Prime  

Minister as the Chairperson ex-officio.

23. Section 6 of the DM Act provides for the powers and functions of  

the  NDMA  and  these  include  laying  down  policies  on  disaster  

management, approving the National Plan prepared under Section 11 of  

the DM Act and to take such other measures for prevention of a disaster  

or the mitigation or preparedness for dealing with a threatening disaster  

situation.

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24. Section  8  of  the  DM  Act  provides  for  the  constitution  of  a  

National  Executive  Committee  (for  short  “the  NEC”).   In  terms  of  

Section 10 of the DM Act, the NEC is required to assist the NDMA in the  

discharge of its functions and has the responsibility of implementing the  

policies and plans of the NDMA and to ensure compliance of directions  

issued  by  the  Government  of  India  for  the  purpose  of  disaster  

management in the country.  It is also provided that the NEC shall prepare  

a National Plan under Section 11 of the DM Act to be approved by the  

NDMA. The NEC shall monitor the implementation of the National Plan.  

It  shall  also  monitor,  coordinate  and  give  directions  regarding  the  

mitigation and preparedness measures to be taken by the Government of  

India  and to  lay down guidelines  for  and give  directions  to  the State  

Government  and  State  Authorities  regarding  measures  to  be  taken  by  

them in response to any threatening disaster situation or disaster.

25. Section  11  of  the  DM  Act  provides  for  the  drawing  up  of  a  

disaster management plan for the whole country to be called the National  

Plan.  The National Plan is required to be prepared by the NEC and is  

expected to include measures to be taken for the prevention of disasters or  

the mitigation of their effects, measures to be taken for preparedness and  

capacity  building  to  effectively  respond  to  any  threatening  disaster  

situation or disaster.

26. The  National  Plan  prepared  by  the  NEC  is  required  to  be  

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approved by the NDMA and shall be reviewed and updated annually. We  

are told by the learned Additional Solicitor General that a National Plan  

has not yet been prepared, though a policy document has been prepared  

by the NEC.

27. Corresponding  obligations  have  been  placed  on  the  State  

Governments under the provisions of the DM Act not only with regard to  

the State but also with regard to each District in the State.

28. Section  36  of  the  DM  Act  places  a  responsibility  on  every  

Ministry or  Department  of  the Government  of  India  to  take  measures  

necessary for  the prevention of  disasters,  mitigation,  preparedness and  

capacity  building in  accordance  with  the  guidelines  laid  down by the  

NDMA.

29. Section  44  of  the  DM  Act  provides  for  the  constitution  of  a  

National  Disaster  Response  Force  for  the  purposes  of  a  specialist  

response to a threatening disaster  situation or  disaster.   We have been  

informed that no such specialist Force has been constituted as yet.

30. Section 46 of  the DM Act  provides for  the establishment  of  a  

National Disaster Response Fund (for short “the NDRF”) for meeting any  

threatening disaster  situation or  disaster.   The NDRF shall  be credited  

with an amount by the Government of India after due appropriation made  

by Parliament as provided by law. This Fund shall be made available to  

the NEC for meeting the expenses for an emergency response, relief and  

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rehabilitation.  We have been informed by the learned Additional Solicitor  

General that the NDRF has been established and the funds of the NDRF  

are  drawn from the National  Calamity  Contingency Duty imposed on  

specified goods under the Central Excise Act and the Customs Act.  In  

addition  to  this,  the  Government  of  India  also  releases  funds  for  the  

NDRF.

31. Section  47  of  the  DM  Act  provides  for  the  constitution  of  a  

National  Disaster  Mitigation  Fund  for  projects  exclusively  for  the  

purposes  of  mitigation  which,  as  mentioned  earlier,  means  measures  

aimed at reducing, inter alia, the risk of a disaster or threatening disaster  

situation.   Although, the DM Act has been in force for  more than 10  

years, the National Disaster Mitigation Fund has not yet been constituted.  

There is, therefore, no provision for the mitigation of a disaster.

32. Section 48 of the DM Act places a corresponding obligation on  

the  State  Governments  to  create  response  and mitigation  funds  at  the  

State level and the District level.  We are informed that the States have set  

up  State  Disaster  Response  Funds but  it  is  not  clear  whether  District  

Disaster Response Funds have been established.  Since the Government  

of India has not established the National Disaster Mitigation Fund, it is  

unlikely that the State Governments or the District Administration would  

have set up such Mitigation Funds.

33. The above review of the DM Act makes it abundantly clear that  

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the statute provides for risk assessment and risk management in the event  

of a disaster such as a drought and also crisis management in the event of  

a drought.

34. There is no dispute and indeed there cannot be any dispute that a  

drought is a disaster and risk assessment and risk management as well as  

crisis management of a drought falls completely within the purview of the  

Disaster Management Act, 2005.

35. We  are  quite  surprised  at  being  informed  by  the  learned  

Additional Solicitor General that a National Plan has not yet been drawn  

up under Section 11 of the DM Act for disaster management. Evidently,  

anticipating a disaster such as a drought is not yet in the ‘things to do’ list  

of the Union of India and ad hoc measures and knee jerk reactions are the  

order of the day and will continue to be so until the provisions of the  

Disaster Management Act are faithfully implemented.

36. We are also quite surprised that the National Disaster Mitigation  

Fund has not yet been set up even after 10 years of the enforcement of the  

DM Act. Risk assessment and risk management also appear to have little  

or no priority as far as the Union of India and the State Governments are  

concerned.

37. Having expressed our anguish that the Disaster Management Act,  

2005 has not been faithfully implemented as yet, we must add that it is  

not that nothing has been done.  

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38. Insofar  as  a  drought  is  concerned,  the  Union  of  India  has  

published two important documents. The first important document is the  

Manual for Drought Management (for short “the Manual”) prepared in  

November  2009  by  the  Department  of  Agriculture  and  Cooperation,  

Ministry  of  Agriculture  in  the  Government  of  India.  The  second  

important document is the National Disaster Management Guidelines for  

Management  of  Drought  (for  short  “the  Guidelines”)  prepared  in  

September 2010 by the National Disaster Management Authority of the  

Government of India.  According to the Union of India, these documents  

have  no  binding  force  and  are  mere  guidelines  to  be  followed,  if  so  

advised. This has resulted in a great deal of observance in the breach of  

the Manual and the Guidelines.  

What is a drought?

39. The Manual is undoubtedly comprehensive, well-researched and  

instructive. However, before we refer to it, we must point out that it is  

now of more than six years  vintage.  It  might perhaps need a revision  

considering the experience gained over the years and the availability of  

more and better  information including more accurate  information now  

available from the use of technology, satellite imagery, weather stations  

etc. Some suggestions have also emerged during the hearing of the writ  

petition  and  these  too  would  require  consideration  in  updating  the  

Manual.  There  certainly  cannot  be  any  harm  in  being  up  to  date,  

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particularly in matters concerning a drought or a drought like situation.  

40. The  Manual  expresses  difficulty  in  providing  a  precise  and  

universally accepted definition of drought in view of a large number of  

factors involved.  It is generally said that conditions of drought appear  

when rainfall is deficient in relation to the statistical multi-year average  

for  a  region over  an  extended period of  a  season  or  even  more.  The  

impact of a drought could be economic, environmental and social. The  

Manual classifies drought in three categories in terms of impact namely  

meteorological  drought,  hydrological  drought  and agricultural  drought.  

These are explained as under:

“Meteorological drought is defined as the deficiency of precipitation from  expected or normal levels over an extended period of time.  Meteorological  drought usually precedes other kinds of drought and is said to occur when the  seasonal  rainfall  received  over  an  area  is  less  than  25 % of  its  long-term  average value.  It is further classified as moderate drought if the rainfall deficit  is 26-50% and severe drought when the deficit exceeds 50% of the normal.  

Hydrological  drought  is  best  defined  as  deficiencies  in  surface  and  sub- surface water supplies leading to a lack of water for normal and specific needs.  Such  conditions  arise,  even  in  times  of  average  (or  above  average)  precipitation when increased usage of water diminishes the reserves.

Agricultural drought is usually triggered by meteorological and hydrological  droughts and occurs when soil moisture and rainfall are inadequate during the  crop  growing  season  causing  extreme crop  stress  and  wilting.  Plant  water  demand depends on prevailing weather conditions, biological characteristics  of  the  specific  plant,  its  stage  of  growth  and  the  physical  and  biological  properties of the soil.  Agricultural drought arises from variable susceptibility  of  crops  during  different  stages  of  crop  development,  from emergence  to  maturity.   In India,  it  is  defined as a period of four consecutive weeks (of  severe meteorological drought) with a rainfall deficiency of more than 50 % of  the long-term average or with a weekly rainfall of 5 cm or less from mid-May  to mid-October (the kharif season) when 80% of India’s total crop is planted  

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or six such consecutive weeks during the rest of the year.

The classification of drought as mentioned above need not be the only criteria  used for declaring drought.”4

41. In this context,  the Manual promotes a new system of drought  

management  (different  from the colonial  model)  broadly based on the  

following salient features:

1. Abandon the use of famine codes and varied State management plans. 2. Focus on mitigation measures. 3. Adopt newer technologies. 4. Adapt to the new legal framework. 5. Include  employment  and  area  development  programmes  in  drought  

mitigation. 6. Prescribe  standardized  steps  for  management  at  the  national/central  

level.5

Strangely,  none  of  these  prescriptions  seem  to  have  gained  universal  

acceptance over the years.

Monitoring of Drought by State Governments

42. According  to  the  Manual,  drought  is  monitored  by  the  State  

Governments by obtaining information on four key indicators.6 They are:  

rainfall;  storage  water  levels  in  reservoirs;  surface  water  and  ground  

water level; sowing and crop conditions. The Manual explains these key  

indicators in the manner given below. However, it must specifically be  

pointed out that the Manual categorically states that “Rainfall is the most  

important indicator of drought. A departure in rainfall from its long-

term averages should be taken as the basis for drought declaration.  4 Page 13 and 14 of the Manual for Drought Management 5 Pages 4 to 6 of the Manual 6 Section 2 of the Manual  

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The IMD [Indian Meteorological Department] can provide rainfall data to  

the  State  Government,  which  can  also  collect  data  through  its  own  

network of weather stations.”7

Rainfall:  The Indian Meteorological Department (IMD) and State  

Governments collect data on rainfall every day during the rainy season.  

According to the IMD, drought sets in when the deficiency of rainfall at a  

meteorological  sub-division level  is  25 per cent  or  more of  the Long-

Term Average of that sub-division for a given period.  The drought is  

considered “moderate”, if the deficiency is between 26 and 50 per cent,  

and “severe” if it is more than 50 per cent.8  

Storage Water Levels in Reservoirs:  State Governments collect  

data  on  the  levels  of  stored  water  in  important  reservoirs  through  its  

Irrigation Department.  Reservoir storage level is a useful indicator of  

water shortages.  As data on reservoir storage are available on a regular  

basis, these could provide accurate information on water shortages.  The  

Central Water Commission maintains data on water levels in 81 important  

reservoirs of the country, where the water storage is compared with the  

Full Reservoir Level.9  

Surface Water and Groundwater Level: Natural discharge from  

shallow aquifers provides base flow to streams and sustains the water in  

lakes and ponds, particularly during periods of dry weather.  Similarly,  

7 Page 49 of the Manual. Emphasis has been supplied by us. 8 Page 38 of the Manual 9 Page 38 of the Manual  

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groundwater levels are also affected due to poor recharge, whether due to  

lack  of  adequate  rainfall  or  poor  water  conservation  practices.   As  a  

result,  water availability in deep bore-wells and open wells diminishes  

substantially.   Declining groundwater  level  are  important  indicators  of  

drought conditions, though these are often attributed to over extraction of  

water.10  

Sowing and Crop Conditions: An important indicator of drought  

provides information on sowing on a weekly basis.  A delayed sowing  

shows rainfall deficiency and indicates the onset of drought.  Reports on  

crop conditions also provide an indication of the severity of the drought  

situation.  If the crops are wilting, it indicates soil moisture stress. A crop  

contingency plan and other mitigation measures are implemented based  

on reports prepared for all the crops sown during the monsoon.11  

Monitoring of Drought by Scientists

43. Scientists utilize other indices to measure the intensity, duration  

and  spatial  extent  of  drought.12 These  are:  Aridity  Anomaly  Index;  

Standardized Precipitation Index; Palmer Drought Severity Index; Crop  

Moisture  Index;  Surface  Water  Supply  Index;  Normalized  Difference  

Vegetation  Index;  Normalized  Difference  Wetness  Index,  Effective  

Drought Index and Moisture Adequacy Index. It is not necessary to deal  

with each of these indices particularly since the Manual makes is quite  

10 Page 38 and 39 of the Manual 11 Page 39 of the Manual 12 Section 2 of the Manual

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clear that there ought to be a convergence of views between the State  

Governments  and  scientists  in  the  declaration  of  a  drought.  It  is,  

therefore, stated:  

“It  is  clear  that  that  no  one indicator  or  index is  adequate  for  monitoring  drought at  the State level;  instead,  a combination of indicators and indices  needs to be used for drought declaration.

On  the  basis  of  wide-ranging  consultations  with  the  meteorologists  and  agriculture scientists, rainfall deficiency, the extent of area sown, normalized   difference vegetation index and moisture adequacy index are recommended   as  the  four  standard  monitoring  tools  which  could  be  applied  in   combination  for  drought  declaration.  Since  the  information  on  these   indicators and indices are available at the level of Taluka /Tehsil / Block,   drought  may  be  declared  by  the  State  Government  at  the  level  of  these   administrative  units  on  the  basis  of  observed  deficiencies.  At  least  three  indicators or index values could be considered for drought declaration.

It is recommended that these new standards / guidelines should replace the  present system of drought declaration that is based on rainfall deficiency and  reduction in annewari / paisewari / girdawari figures.”13

44. From a reading of the Manual, it is clear that drought declaration  

today  is  to  be  viewed  quite  differently  from  the  past  practice.  The  

emphasis now is on four factors: (i)  Rainfall deficiency; (ii) Extent of  

area  sown;  (iii)  Normalized  Difference  Vegetation  Index,  and  (iv)  

Moisture Adequacy Index. This is generally accepted by almost all the  

States and the Union of India as well.

Rainfall deficiency  

45. How is rainfall deficiency calculated? It must be remembered that  

rainfall is the most important indicator of drought. The State Government  

can obtain rainfall data from the IMD and also collect data through its  

13 Pages 47 and 48 of the Manual

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own network of weather stations. This rainfall data may be applied in two  

ways:

1. The State Government could consider declaring a drought if the total  

rainfall received during the months of June and July is less than 50% of  

the average rainfall for these two months and there is an adverse impact  

on vegetation and soil moisture, as measured by the vegetation index and  

soil moisture index. Such a rainfall deficit would cause so much damage  

to agriculture that it would be difficult to revive crops.

2. The State Government could consider declaring a drought if the total  

rainfall for the entire duration of the rainy season of the state, from June  

to September (the south-west monsoon) and or from December to March  

(north-east  monsoon),  is  less  than 75% of  the average rainfall  for  the  

season and there is an adverse impact on vegetation and soil moisture, as  

measured by the vegetation index and soil moisture index.14

Extent of area sown

46. Sowing is  an important  indicator  of  the spread and severity  of  

drought.  The  area  under  sowing  provides  reliable  information  on  the  

availability of water for agricultural operations. Drought conditions could  

be said to exist if the total sowing area of Kharif crops is less than 50% of  

the total cultivable area by the end of July/August, depending upon the  

schedule of sowing in individual States. In such situations, even if rainfall  

revives  in  the  subsequent  months,  reduction in  the area under  sowing  

14 Page 49 of the Manual

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cannot  be  compensated  for  and  the  agricultural  production  would  be  

substantially reduced.  The State Government should therefore consider  

declaring a drought if along with the other indicators, the total area sown  

by the end of July/August is less than 50% of the total cultivable area.

47. In case of Rabi crops, the declaration of drought could be linked  

to the area of sowing being less than 50% of the total cultivable area by  

the end of November /December along with the other indicators.15

Normalized Difference Vegetation Index (NDVI)

48. According  to  the  Manual,  there  are  at  present  11  (eleven)  

agriculturally important and drought-vulnerable States. They are: Andhra  

Pradesh (now including Telangana), Bihar, Gujarat, Haryana, Karnataka,  

Maharashtra, Madhya Pradesh, Orissa, Rajasthan, Tamil Nadu and Uttar  

Pradesh.16  We are primarily concerned with the drought-vulnerable States  

of Bihar, Gujarat and Haryana.

49. NDVI is an index indicating the density of vegetation on earth  

based on the reflection of visible and near infrared lights detected by the  

National Oceanic and Atmospheric Administration – Advanced Very High  

Resolution Radiometer instrument from a remote sensing satellite.  The  

values obtained for a given NDVI always range from –1 to +1. A negative  

number or a number close to zero means no vegetation and a number  

close  to  +1  (0.8-0.7)  represents  luxurious  vegetation.  For  declaring  

15 Page 50 of the Manual 16 Page 51 of the Manual

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drought,  States  need  to  obtain  NDVI  values  through  the  National  

Agricultural Drought Assessment and Monitoring System. All the above-

mentioned States receive National Agricultural Drought Assessment and  

Monitoring System reports on a regular basis. Those States which do not  

receive the report can approach the National Remote Sensing Centre for  

receiving the information.  It is necessary that the States declare drought  

only when the deviation of NDVI value from the normal is 0.4 or less.  

However, the NDVI value needs to be applied in conjunction with other  

indicators and values. The NDVI must not be invoked for the declaration  

of drought in isolation from the other two key indicators.17

Moisture Adequacy Index (MAI)

50. MAI is based on a calculation of weekly water balance and is a  

ratio expressed as a percentage. If the percentage is between 76 and 100  

there is no drought; between 51 and 75 there is mild drought; between 26  

and  50  there  is  a  moderate  drought  and  below  25  there  is  a  severe  

drought.  

51. MAI values are critical to ascertain agricultural drought. The State  

agriculture department needs to calculate the MAI values on the basis of  

data available to it and provide it to the Department of Relief and Disaster  

Management,  which  would  ascertain  that  MAI  values  conform to  the  

intensity  of  moderate  drought  before drought  is  declared.  MAI values  

17 Page 51 and 52 of the Manual

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need to be applied in conjunction with other indicators such as rainfall  

figures, area under sowing and NDVI values.18

National Disaster Management Guidelines

52. The second important publication handed over to us is in a sense a  

follow-up  to  the  Manual,  namely,  the  National  Disaster  Management  

Guidelines of September, 201019 published by the NDMA (with the Prime  

Minister as its Chairperson) constituted under the Disaster Management  

Act,  2005.   The  Guidelines  provide  a  large  number  of  meaningful  

suggestions and practices on virtually all aspects of drought management.  

However, what is important for our present purposes is that in the ‘Status  

and Context’ of drought in India, it is stated, inter alia, that drought has a  

slow onset  and has an impact  on economic,  environmental  and social  

sectors.  While  its  impact  can  be  reduced  through  mitigation  and  

preparedness, it is important to develop contextual plans to deal with the  

impacts. It is stated as follows:  

“Drought is a natural hazard that differs from other hazards as it has a slow  onset, evolves over months or even years and affects small pockets to a large  regional expanse. Its onset and severity are often difficult to determine. As a  result, there is a lack of urgency in response. Like other hazards, the impacts  of  drought  span  economic,  environmental  and  social  sectors  and  can  be  reduced through mitigation and preparedness.  Because droughts are a normal  part of climate variability for virtually all regions, characterized by extended  periods of water shortage, it is important to develop contextual plans to deal  with them in a timely, systematic manner as they evolve.”20  

18 Page 53 and 54 of the Manual 19 National Disaster Management Guidelines: Management of Drought. A  publication of the National Disaster Management Authority, Government of India.  ISBN 978-93-80440-08-8, September 2010, New Delhi. 20 Page xvii of the Guidelines

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53. A little  later,  a  three-pronged strategy is  advocated,  namely,  of  

prevention, preparedness and mitigation rather than the erstwhile relief-

centric approach of the past. It is stated:  

“The  value  of  prevention,  preparedness  and  mitigation  is  now  gaining  recognition the world over.  In India in particularly, after 2005, there has been  a  paradigm  shift  from  the  erstwhile  relief-centric  response  to  a  proactive  prevention,  mitigation  and  preparedness-driven  approach  for  conserving  developmental  gains  and  also  to  minimize  loss  of  life,  livelihood  and  property.”21  

54. With  regard  to  the  ‘changing  face’  of  drought  in  India,  the  

Guidelines give the telling (and shocking) examples of  Cherrapunji  in  

Meghalaya and Jaisalmer in Rajasthan and it is observed:

“The traditional approach to drought as a phenomenon of arid and semi-arid  areas is changing in India too. Now, even regions with high rainfall, often face  severe water scarcities. Cherrapunji in Meghalaya, one of the world’s highest  rainfall areas, with over 11, 000 mm of rainfall, now faces drought for almost  nine months  of  the year.  On the other  hand, the western part  of  Jaisalmer  district of Rajasthan, one of the driest parts of the country, is recording around  9 cm of rainfall in a year.”22

55. This  preliminary  discussion  is  intended  to  indicate  that  a  

declaration  of  drought  is  not  a  complicated  affair  but  a  manageable  

exercise and an appropriate conclusion can be scientifically drawn with  

the available data. Nevertheless, it is not a judicially manageable exercise  

and no judicially acceptable standards can be laid down for declaring or  

not declaring a drought. With this background and on the basis of the  

information  provided  to  us,  it  is  necessary  to  see  whether  a  possible  

21 Page 1 of the Guidelines 22 Page 2 of the Guidelines

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drought situation or a drought-like condition exists in Bihar and Haryana.  

It may be recalled that Gujarat has declared a drought (or semi-scarcity as  

Gujarat would like to call it) in 526 villages in three districts followed by  

another 468 villages in five districts (including the earlier three districts)  

during the pendency of this writ petition. Perhaps more areas in Gujarat  

might need to be declared as drought hit.  

56. Notwithstanding the absence of judicially manageable standards,  

the  judiciary  cannot  give  a  totally  hands-off  response  merely  because  

such  standards  cannot  be  laid  down for  the  declaration  of  a  drought.  

However,  the  judiciary  can  and  must,  in  view  of  Article  21  of  the  

Constitution,  consider  issuing  appropriate  directions  should  a  State  

Government or the Union of India fail to respond to a developing crisis or  

a crisis in the making. But there is a Lakshman rekha that must be drawn.

Declaration of drought in Bihar

57. The State of Bihar has filed two affidavits before us - one on or  

about 14th January, 2016 and the other on or about 11th April, 2016. The  

latter affidavit effectively relies on the affidavits filed by the Union of  

India since “the State of Bihar has furnished all the requisite information  

and  data  to  the  Central  Government  regarding  the  issue  of  drought  

declaration in the State. The Union of India has filed its comprehensive  

affidavit, which contains the response of the State of Bihar.”  

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58. The reference to the affidavits filed by the Union of India arises  

due to our direction given on 18th January, 2016. We had directed the  

Secretary  in  the  Department  of  Agriculture,  Cooperation  and  Farmers  

Welfare in the Union of India to convene a meeting of his counterparts in  

the States to consider an effective response to the drought and a possible  

drought  situation  in  the  country.  Pursuant  thereto,  a  meeting  was  

convened by the concerned Secretary on 25th January, 2016 with officers  

of the Government of India and on 27th January, 2016 with officers of the  

State Governments.  

59. The response of Bihar in sum and substance, as regards the four  

admitted key indicators, is that rainfall deficiency in the end of July 2015  

was 30% and the deficiency had decreased to 20% by the end of August  

2015 thereby implying that there is no rainfall deficit in Bihar (as against  

the requirement of 50% deficit). Sowing of paddy crop was at 96.03%  

and  of  maize  at  89.62%  at  the  end  of  August  2015  (as  against  the  

requirement  of  50%).  Steps  are  taken  to  provide  irrigation  facilities  

through tube-wells  and  canals  to  save  the  standing crops  and  a  large  

amount is distributed as diesel subsidy for the Kharif crop. In view of  

this, the situation does not warrant a declaration of a drought.   

60. Even a cursory evaluation of the information points to the fact that  

(i) Bihar failed to take into consideration that a drought is not necessarily  

a State-wide phenomenon and a declaration of drought might be limited  

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to a few areas. A drought might exist in a district or a sub-division of a  

district such as a taluka, tehsil or block but not the entire State. (ii) Bihar  

also failed to consider that the monitoring or the possibility of a drought  

does  not  end  in  July  or  early  August  but  continues  till  the  end  of  

September  and  in  some  situations  till  the  end  of  November.  The  

Guidelines provide that “To promote management of relief measures in  

near real time it is necessary to declare early season drought by end of  

July, mid season drought (growing season) by end of September and end  

season by November.”23 (iii) Before us, Bihar has completely ignored the  

remaining two factors while taking a decision not to declare a drought,  

namely, NDVI and MAI. The reason for the non-consideration of these  

material indicators is not clear.  

61. What is more saddening is that the rainfall coverage report has  

been selectively adverted to for no apparent reason. While the State-wide  

rainfall deficit for June and July 2015 might have been 30%, the rainfall  

in June and July 2015 in ten districts, that is, Araria, East Champaran,  

Madhepura,  Madhubani,  Muzazffarpur,  Purnia,  Saharsa,  Seohar,  

Sitamarhi  and  Siwan  was  less  than  50%  the  average  rainfall.   The  

coverage report clearly indicates that as on 30th September, 2015 rainfall  

is deficit in 19 out of 38 districts in Bihar that is in half of the districts in  

Bihar the rainfall is below 75% of the average. The affected districts are  

Araria, Bhojpur, Gaya, Gopalganj, Madhepura, Madhubani, Muzaffarpur,  

23 Page 27 of the Guidelines

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Nalanda,  Nawada,  Patna,  Purnia,  Saharsa,  Saran,  Sheohar,  Sitamarhi,  

Siwan, Supaul,  Vaishali  and West Champaran.   The overall  State-wide  

deficit is 27% and this gets progressively worse. As on 30th October, 2015  

three more districts that is  Darbhanga, Jamui and Katihar have  rainfall  

below 75% of the average, the overall State-wide deficit being 31%.  

62. Since Bihar has selectively disclosed information and closeted full  

and complete information from us, we do not know the extent to which  

each taluka, tehsil or block is affected in each of the 22 out of 38 districts  

in Bihar. The Manual states (and the Manual is relied on by Bihar) that  

“Rainfall is the most important indicator of drought. A departure in  

rainfall from its long-term averages should be taken as the basis for  

drought  declaration.”  How  did  this  very  crucial  factor  escape  the  

attention of the powers that be in Bihar?  

63. As far as the area under cultivation is concerned, it is true that the  

extent of area sown continues to exceed 50% of the total cultivable area.  

Bihar  must  be  credited  for  this,  but  that  is  not  the  only  or  the  most  

important factor to take into consideration for declaring or not declaring a  

drought. Unfortunately,  Bihar seems to be giving undue importance to  

this  one  key  indicator  at  the  expense  of  the  remaining  three  key  

indicators.

64. The third and fourth key indicators are NDVI and MAI.  In this  

regard, our attention was invited to  a few pages of a monthly Report of  

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Agricultural  Drought  Assessment  for  Bihar  for  the  month  of  August,  

2015. The Report is prepared by the Mahalanobis National Crop Forecast  

Centre under the Ministry of Agriculture and Farmers Welfare. Reference  

was  made  to  the  NDVI  and  the  Normalized  Difference  Water  Index  

(NDWI).24 The  Report  indicates  that  till  August  2015  the  vegetation  

condition  is  good  in  the  entire  State  except  in  a  few districts  that  is  

between 0.61 and 0.52 (which is better than in the previous three years).  

Similarly, the NDWI condition till August 2015 is good in the entire State  

except in a few western and southern districts that is between 0.50 and  

0.40 (which is slightly poorer than in the previous three years). However,  

the “Vegetation Condition Index (NDVI) shows fair or good vegetation  

condition  in  most  part  of  Bihar,  while  Vegetation  Condition  Index  

(NDWI) shows poor to slightly poor moisture condition in large part of  

the state, particularly northern region.” The summary points out that in  

August  2015  rainfall  has  been  normal  to  deficient  except  in  Banka  

District; vegetation condition is good in Eastern and Western Bihar while  

Northern  and  Southern  Bihar  have  poor  vegetation  condition;  the  

moisture condition is good except in a few districts of Northern Bihar,  

and 31 districts  are  categorized as  normal  while  7  districts  are  under  

‘watch’ category.   

65. As mentioned above, Bihar has made available the figures only  

till August 2015 but as we have seen earlier, the general situation in Bihar  

24 Higher values of NDWI signify more surface wetness.

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gets  progressively  worse  after  August  2015.  The  figures  (other  than  

rainfall  coverage)  post  August  2015 have not  been shared with us  by  

learned counsel for Bihar for unknown reasons. Perhaps the game plan is  

to disclose selective information and material that suits its interests (but  

not the interest of its citizens) and to withhold information and material  

that might be uncomfortable. We therefore cannot make any comment on  

the third key indicator that is NDVI.

66. However, as far as MAI is concerned, the petitioner has annexed  

to the Final Rejoinder the MAI for Bihar.25 A perusal of this clearly shows  

that large swathes of Bihar are facing a moderate or mild drought as on  

30th September, 2015.

67. In  its  defence,  Bihar  states  that  a  Crisis  Management  Group  

headed by the Chief Secretary has been constituted. Several steps have  

been taken for  arrangement  of  water  for  irrigation and distribution of  

diesel subsidy for Kharif and Rabi crops.  Bihar has canvassed a case of  

no water shortage. It is pointed out that Bihar has 12 river basins and  

most  of them are perennial Himalayan rivers. In view of the deficient  

rainfall, the Department of Water Resources has made arrangements for  

irrigation through canals, ponds and the Minor Irrigation Department has  

made arrangements through public bore-wells. On an in-depth analysis, it  

is concluded by Bihar that the situation does not warrant the declaration  

of drought.

25 Source: http://bhuvan.nrsc.gov.in  

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68. On the basis of what has been told to us and the material referred  

to by learned counsel for Bihar, two definite conclusions can be arrived  

at: firstly, the information provided does not reflect the position on the  

ground in districts or tehsils or blocks or talukas but is intended to reflect  

the position in the entire State of Bihar. There is no reason why relevant  

information  at  the  micro  level  should  be  ignored.  We  have  already  

mentioned that drought conditions may exist in a taluka, tehsil or block  

but not necessarily in the entire district or State and that is why micro  

level information should be considered. Secondly, it is quite clear that: (i)  

there is deficit rainfall (the deficit being more than 25%) for the period  

June to September 2015 in 19 out of 38 districts in Bihar and this gets  

progressively  worse.  If  the coverage  for  the entire  State  is  taken into  

consideration then the deficit is to the extent of 27% and by 30th October,  

2015  the  deficit  goes  up  to  31%;  (ii)  the  area  under  sowing  is  

considerable during June and July, 2015 but the status of the Kharif crop  

thereafter, whether it is wilting due to deficit rain or low moisture or there  

is an adequate network of canals, ponds and bore-wells is not disclosed;  

(iii) the NDVI in August 2015 is generally good except in parts of Bihar.  

The situation in the end of September 2015 and thereafter is not known;  

and (iv) the MAI for Bihar shows that large areas in the State are facing a  

moderate or mild drought as on 30th September, 2015.

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69. Under the circumstances, it appears to us that there is more than  

sufficient material to suggest that there is a perceptible threat of a mild or  

moderate drought in some districts,  tehsils,  talukas or blocks of Bihar.  

The unfortunate part of the exercise undertaken by us is that Bihar is in a  

state of denial.  

Declaration of drought in Gujarat

70. The State of Gujarat filed its first and only affidavit on 21st April,  

2016 just a few days before hearing concluded although during the course  

of  oral  submissions by learned counsel  for  Gujarat  on 7th April,  2016  

some documents were handed over to us.  

71. According to Gujarat, rainfall received was 61.9% of the average  

rainfall in the end of July 2015 and during the monsoon period of 2015-

16 the State received 81.24% of the annual rainfall. Hence there is no  

rainfall  deficit  in  Gujarat.  Again,  the  figures  presented  to  us  in  this  

manner do not reveal the entire truth.

72. Even though Gujarat relies upon State-wide figures of rainfall, it  

is acknowledged that “normally the pattern of rainfall varies from village  

to village and sometimes within the same area, certain villages receive  

high rainfall and certain villages receive low rainfall, therefore, district-

wise averages are normally considered.” There is therefore an inherent  

contradiction in the understanding of Gujarat in what constitutes deficit  

rainfall as she understands and as projected before us.

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73. The  rainfall  data  submitted  by  Gujarat  makes  for  interesting  

reading  inasmuch  as  in  June  2015  only  two  districts  (in  Saurashtra)  

received more than 50% rainfall  out of 33 districts.   In July 2015 the  

number of districts receiving adequate rainfall went up substantially but  

there  were  five  districts  in  East  Central  Gujarat,  two  districts  in  

Saurashtra and six districts in South Gujarat that received less than 50%  

rainfall.   If  the rainfall  data  as  on 30th September,  2015 is  taken into  

consideration,  the  district  of  Vadodara  in  East  Central  Gujarat  has  

consistently received less than 40% rainfall but that district has not been  

declared drought-hit.  The entire South Central Gujarat has received less  

than 75% rainfall and two districts of Saurashtra have received less than  

75%  rainfall  as  also  the  entire  South  Gujarat  region.   As  per  the  

information  made  available  on  affidavit  there  is  no  doubt  that  every  

district  in  Central  Gujarat  and  South  Gujarat  has  received  inadequate  

rainfall while two districts of Saurashtra are hit by inadequate rainfall.

74. Gujarat  has  constituted  a  Cabinet  sub-Committee  on  23rd  

September, 2015 to monitor the situation arising due to less than average  

rainfall in the State. A district level and taluka level relief committee has  

also been constituted for monitoring and implementation of measures to  

deal with drought.  Why was all this necessary if Gujarat was so well  

positioned in terms of adequate rainfall?

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75. Gujarat  submits  that  on account of  the satisfactory rainfall,  the  

normal crop sowing was to the extent of 99.70%. As far as agriculture  

production is concerned, the advance estimate production for 2015-16, as  

per the Agriculture Department of Gujarat is estimated to be 95% of the  

average  crop  yield  for  major  crops.  This  might  be  true.  But,  Gujarat  

considers  scarcity/semi-scarcity on the basis  of  annewari  (crop cutting  

procedure) as per the provisions of the Gujarat Relief Manual.  

76. On completion of the annewari process, it appears that the Cabinet  

sub-Committee met in the end of March 2016 (it might have met earlier  

also) and took a decision with regard to declaring a drought. The Cabinet  

sub-Committee  appears  to  have  found  that  there  is  no  village  falling  

below 4  annas  (out  of  12  annas  and  not  16  annas)  where  mandatory  

scarcity is required to be declared in terms of the Gujarat Relief Manual.  

Notwithstanding  satisfactory  rainfall  and  normal  crop  sowing,  in  526  

villages  in  three  districts  that  is  Rajkot,  Jamnagar  and  Devbhoomi  

Dwarka the agricultural output is between 4 annas and 6 annas.   

77. Therefore,  on  a  consideration  of  the  available  data,  the  

Government  of  Gujarat  declared  a  drought  in  526  villages  in  three  

districts by a resolution dated 1st April, 2016.  The Government of Gujarat  

uses  the  expression ‘semi  scarcity’ as  against  drought  and one  of  the  

submissions made by the petitioner in this regard is that there must be  

some standardization in the nomenclature otherwise each State can use a  

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different expression without admitting a drought.

78. Subsequently,  another  468  villages  have  also  been  declared  as  

affected by drought (or semi-scarcity - the date of the second declaration  

has not been indicated). Therefore, a total of 994 villages in five districts  

have been declared as affected by drought in Gujarat, despite its claim of  

adequate rainfall and normal crop sowing.  

79. At this stage, it should be mentioned that Maharashtra employs  

the annewari system where the cut-off is 50 paise crop yield for declaring  

a drought or a drought-like situation. (We take it that the unit is 50 paise  

in  a  rupee of  100 paise).  What is  more important  is  that  Maharashtra  

completed  the  crop-cutting  exercise  in  October  2015  and  passed  a  

Resolution on 20th October, 2015 spelling out the various measures to be  

undertaken in villages where annewari is less than 50 paise. It is difficult  

to understand why Gujarat could make an assessment only in March 2016  

and not months earlier as in Maharashtra.    

80. As regards the third and fourth key indicators (NDVI and MAI)  

Gujarat  points out  that  NDVI needs to be applied in conjunction with  

other indicators and there are large tracts of land in the State that are not  

arable which adversely affects NDVI. The type of soil is also a relevant  

consideration and despite many parts of the State being inundated with  

water, MAI will be low due to the type of soil. This information is used  

by Gujarat for justifying the annewari system which is said to be a time-

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the traditional method of drought assessment by following the annewari  

system  rather  than  rainfall  deviation.  The  Manual  prepared  by  

Government  of  India  would  like  to  discard  the  annewari  system  but  

Gujarat continues to hold on to it.  Gujarat might be justified in doing so  

(although we doubt it) but perhaps some standardization on the part of the  

Government of India may be necessary in this regard.

84. The  Manual  very  clearly  refers  to  the  effect  and  impact  of  a  

delayed declaration of drought (as in the case of Gujarat).  It is stated in  

the Manual as follows:-

“Drought declaration should be a timely step so that relief assistance and other  concessions can be provided to the drought affected people at the right time.”27

It is further stated as follows:

“Ideally, States should declare drought in October. The monsoon is over by  this month and figures for total rainfall are available in this month. Similarly, a  final picture regarding the crop conditions as well as the reservoir storage is  available by the end of October. It provides adequate time for the central team  to  visit  the  State  and  assess  the  crop  losses.”28 (The  emphasis  is  in  the  original).

The Guidelines also state:

“Declaration of drought, traditionally, is recommended after the estimates of  crop  production  are  obtained  through  Annewari/Paisewari.  Generally  those  areas  where  Annewari/Paisewari  is  less  than  50  percent,  the  areas  is  considered to be affected by a drought. Final figures in respect of Kharif crops  are available only in December, while those for Rabi crops are available in  March.

If drought is declared as late as December or January, relief works will start  only after such a declaration. It will be too late if the distress signals have  appeared in the wake of rainfall deficiency. Also if the drought is declared in  

27 Page 47 of the Manual 28 Page 55 of the Manual

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January  or  February,  the  Central  Team would  visit  much after  the  crop is  harvested and it would not be in a position to assess crop losses. To promote  management of relief measures in near real time it is necessary to declare early  season drought by end of July, mid season drought (growing season) by end of  September and end season by November.”29

85. The system followed by Gujarat clearly does not meet with the  

approval of the Manual or the Guidelines. As noticed above, drought was  

declared in 526 villages in Gujarat only on 1st April, 2016 and in 468  

villages thereafter. As per the Manual and the Guidelines this is clearly  

too  late  for  those  in  distress.  The  purpose  of  an  early  declaration  of  

drought is  preventive,  but  the route taken by Gujarat  is  palliative and  

relief  centric.  Risk  assessment  and  risk  management  gives  way,  in  

Gujarat, to crisis management. This is hardly of any advantage to those  

whose distress can be avoided.  

Declaration of drought in Haryana

86. The State of Haryana filed an affidavit only on 21st April, 2016.  

According to learned counsel  for Haryana deficit  rainfall  for June and  

July  2015 is  minus  12.6% and for  the  calendar  year  2015 the  deficit  

rainfall  is  minus  16.4%.   However,  there  is  sufficient  coverage  under  

irrigation  through  tube-wells  and  canals  in  Haryana  and  as  such  a  

declaration of drought is not warranted.

87. However,  for the period June to September 2015 there is more  

than  25% deficit  rainfall  in  11  out  of  21  districts  of  Haryana.  These  

districts  are:  Bhiwani,  Palwal,  Fatehabad,  Hissar,  Jind,  Kaithal,  

29 Page 27 of the Guidelines

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Mohendergarh, Panchkula, Panipat, Rohtak and Sirsa with Ambala on the  

borderline. As far as the entire State is concerned, the rainfall deficit is  

minus 28.8% for the period June to September 2015. In terms of deficit  

rainfall there is most certainly a drought-like situation in Haryana.  

88. With regard to the extent of sowing it is stated that there is an  

increase in the total area sown during Kharif 2015 as against Kharif 2014.  

Haryana says that food grain production has been adequate and there is  

no  district  including  any  deficit  rainfall  district  where  the  area  under  

sowing and average production of  food grain is  below 50%.  In fact,  

overall there has been an increase in food grain production by 3.2% over  

Kharif 2014.

89. Haryana says that a self-sufficient irrigation system is in place in  

the State with two important sources of canal water that is the Bhakra  

Canal and the Yamuna river.  In addition, there are lakhs of tube-wells  

and wells for irrigation purposes which ensure that 83% of the State is  

covered under irrigation through canals, tube-wells and wells.  There is  

no shortage of fodder or drinking water.

90. Under the circumstances it is stated that there is no drought-like  

situation in Haryana. The concentration of Haryana is entirely on food  

grain production.  Undoubtedly,  there  does  appear  adequate  food grain  

productivity  as  far  as  the  Kharif  crop  is  concerned.   But  there  is  no  

acknowledgement of rainfall deficit which, as per the Manual is the most  

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Guidelines are indicative and not mandatory.  The third affidavit of the  

Union  of  India  complicates  the  matter  by  introducing  the  concept  of  

‘federalism’ that is the relationship between the Union and the States with  

respect to drought. The ostensible purpose of introducing this concept is  

to enable the Union of India to wash its hands off in matters concerning  

drought  declaration  and  to  give  enough  elbow  room  to  a  State  

Government  to  decide  whether  to  declare  a  drought  or  not  since  the  

Manual is only a reference document and a guide for action and the State  

Governments could face situations under which they may need to deviate  

from the guidance given in the Manual.  Under the circumstances, it is  

stated in the third affidavit  of the Union of India that it  would not be  

proper for the Union of India to sit in judgment over the decision of the  

State Governments or to frame binding guidelines. Since this is of some  

significance,  the  view expressed  by the  Union of  India  is  reproduced  

below:  

“14. In  reply  to  para  7  &  para  17  of  the  revised  note  it  is  submitted  that  the  petitioner has stated that Union of India and all the States require to follow standard  definition and modalities for declaration of drought recommended by the Manual for  Drought  Management.   In  this  regard,  it  is  stated  that  the  Manual  for  Drought  Management is used extensively as a reference document as well as guide for action  by policy makers, administrators and technical professionals.  That the Government  of India recommends these guidelines, it also recognizes that the State Government  could face situations under which they may need to deviate from these guidelines and  they may have necessary freedom to do so.  The manual does not in any way reduces  the state government authority to take their own decisions in a drought situation.  This  is necessary as there might be situations which do not find mention in the manual.  Also the fact that some states are more irrigated than others, as also availability of  water, and are not so dependent on rainfall vis-à-vis other states.  The requirement of   water is  also dependent  on the type of crop sown and even when there is  deficit   

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rainfall,  the  crop  production  does  not  necessarily  fall  to  that  extent  in  all  states.  Accordingly, in a federal polity, it may not be justified to issue binding guidelines for  all states to declare drought.  It may also be pointed out that the states are as much   concerned about  the welfare of the people on whose mandate they have come to  power  and it  will  not  be  proper  on the part  of  the  Central  Government  to  sit  in  judgment  on  their  decisions  or  to  frame  guidelines  which  are  binding  on  them.  Further, both the central and state government have to work as a team and supplement   the effort of each other so as to provide necessary relief to the people.

Hence, it will not be proper to direct the states of Bihar, Gujarat and Haryana  to immediately declare drought in Taluka/Tehsil/Blocks as suggested by the  petitioner.  These states in any case have taken their own reasoned decision for  not declaring drought in their states which have already been enumerated in  the earlier affidavits filed by this department dated 10th February, 2016 and 11th  

March, 2016.”

94. In light of this, the question that we had raised earlier remains to  

be answered: Where does the buck stop? The Disaster Management Act,  

2005 places considerable responsibility on the Union of India in matters  

pertaining to disasters.  This begins with the formulation of a National  

Plan. The Union of India is expected to make available its vast expertise  

and database in leading (and not merely guiding) the State Governments  

in the right direction. The final decision to declare a drought is of the  

State Government but the resources available with the Union of India can  

be effectively used to assist the State Governments in having a fresh look  

into the data and information and to arrive at the correct decision in the  

interest  of  the affected people of  the State.   It  cannot totally wash its  

hands off on issues pertaining to Article 21 of the Constitution but at the  

same time, we do not suggest that the authority of the State Government  

to declare a drought or any other similar power is diluted. The Union of  

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India  has  certainly  to  maintain  a  delicate  and  fine  balance  between  

federalism  and  its  constitutional  responsibility,  and  that  it  must  do,  

otherwise it is ultimately the common person who will suffer and be in  

distress because of a situation not of his or her making.  

95. What  are  the  figures  being  discussed  in  this  case?  From  the  

documents filed by the Union of India (on our asking) 11 out of 29 States  

in the country (now including Gujarat) have declared a drought. In other  

words, a drought has been declared in 1/3rd of the country.  In our opinion,  

a strong case has been made out for reconsidering the declaration of a  

drought in Bihar and Haryana and in more parts of Gujarat. It may be  

mentioned that as per the Manual the three States of Bihar, Gujarat and  

Haryana are agriculturally important but drought-vulnerable.31

96. Of the 10 States in which drought has been declared (other than  

Gujarat) as per the information furnished by the State Governments to the  

Union of India, the number of affected districts is 234 representing more  

than  1/3rd of  the  districts  in  the  country;  the  total  population  in  the  

districts affected by drought is about 33 crores which is about 1/4 th of the  

population of the country. Swaraj Abhiyan says that the figure is between  

40 crores and above 50 crores that is about at least 1/3rd of our population.  

We are therefore concerned with a very large number of lives and not just  

very large numbers and statistics. It is true that the degree of severity or  

intensity of the drought might impact differently in different parts of a  

31 Page 51 of the Manual

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district or a smaller unit, but the fact is that drought does exist even in  

those  areas,  as  per  the  assessment  of  the  State  Government.  Can  we  

afford to ignore the plight of such a large population?  

97. The  timing  of  the  declarations  by  the  various  States  is  also  

significant. The ten respondent States that have declared a drought and  

completed their assessment exercise between August 2015 and December  

2015. On the other hand and inexplicably Gujarat began its exercise only  

in March 2016. The Manual mentions that the final figures of the Kharif  

crop are available in December. There is therefore no reason to delay the  

assessment  exercise  till  March  of  the  following  year.  The  adverse  or  

negative impact of a delayed declaration of drought affects the common  

person,  particularly women and children,  and postpones the assistance  

that is needed. It also puts an undue strain on the resources of the State  

Government  and  the  Government  of  India.  All  in  all,  a  delayed  

declaration  is  of  no  assistance  to  anybody  whatsoever  and  the  

consequences thereof are mentioned in the Manual and adverted to above.  

98. We  have  been  informed  by  the  learned  Additional  Solicitor  

General  that  on  its  part,  the  Government  of  India  does  issue  regular  

advisories to the State Governments but that they have to take the final  

decision in the declaration of a drought. Maybe the issuance of advisories  

is an adequate response to an impending crisis but maybe it is not. That is  

a call that the Government of India will have to take, but whatever view  

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is taken by the Government of India, it must appreciate that as far as a  

response to a disaster is concerned the approach of the Union of India  

should be small-minded in certain respects but financially liberal.  It  is  

true that provision for finances has been made in the National Disaster  

Response Fund, but whether that is adequate and releases are timely is  

not  an issue before us.  In any event,  in view of the provisions of the  

Disaster Management Act, 2005 the buck will eventually stop with the  

Government of India.

99. Towards  the  fag  end  of  the  hearing  of  the  case,  Mr.  Prashant  

Bhushan learned counsel for Swaraj Abhiyan presented the Agricultural  

Drought Assessment Report for October 2015. We are told that a similar  

report is usually prepared every month and distributed to all concerned.  

The report shown to us is prepared by the  Mahalanobis National Crop  

Forecast  Centre  and  the  National  Remote  Sensing  Centre,  ISRO,  

Department  of  Space  at  Hyderabad.  This  report  gives  the agricultural  

drought situation for a number of districts. As far as the three States of  

Bihar, Gujarat and Haryana are concerned, the drought information is as  

follows:

STATE Normal Mild Moderate Bihar 23 15 00

Gujarat 07 16 03 Haryana 09 08 04

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100. It is clear from the above chart that it was known in October  

2015 that several districts in these three States are facing varying degrees  

of drought. Yet, no preparatory steps appear to have been taken to tackle a  

possible disaster. The information provided is from reputed agencies of  

the Government of India and there is no reason for any of the States to  

have ignored it. It is this ostrich-like attitude of these State Governments  

that compels us to make some comment about their concern.

Directions

101. Keeping  all  the  factors  in  mind  we  issue  the  following  

directions:  

1. As  mandated  by  Section  44  of  the  Disaster  Management  Act,  

2005  a  National  Disaster  Response  Force  with  its  own  regular  

specialist cadre is required to be constituted. Unfortunately, no such  

force has been constituted till date. Accordingly, we direct the Union  

of  India  to  constitute  a  National  Disaster  Response Force  within a  

period of six months from today with an appropriate and regular cadre  

strength.

2. As  mandated  by  Section  47  of  the  Disaster  Management  Act,  

2005 a National Disaster Mitigation Fund is required to be established.  

Unfortunately,  no  such  Fund  has  been  constituted  till  date.  

Accordingly,  we  direct  the  Union  of  India  to  establish  a  National  

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Disaster Mitigation Fund within a period of three months from today.

3. Section 11 of  the Disaster  Management  Act,  2005 requires  the  

formulation  of  a  National  Plan  relating  to  risk  assessment,  risk  

management and crisis management in respect of a disaster. Such a  

National Plan has not been formulated over the last ten years, although  

a  policy  document  has  been  prepared.  We  can  appreciate  that  the  

formulation  of  a  National  Plan  will  take  some time but  surely  ten  

years is far too long for such an exercise. Accordingly we direct the  

Union of India to formulate a National Plan in terms of Section 11 of  

the  Disaster  Management  Act,  2005  at  the  very  earliest  and  with  

immediate concern.

4. The Drought Management Manual is undoubtedly a meaningful  

and well-researched document. However, in view of the submissions  

made  before  us  by  learned  counsel  for  the  parties,  we  are  of  the  

opinion  that  since  the  Manual  was  published  in  2009 several  new  

developments  have  taken  place  and  there  is  a  need  to  revise  the  

contents  of  the  Manual.  We direct  that  the  Manual  be  revised  and  

updated  on  or  before  31st December,  2016.  While  revising  and  

updating the Manual, the Ministry of Agriculture in the Union of India  

should take into consideration the following factors apart from others:

(i) Weightage to be given to each of the four key indicators  

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should  be determined to the extent  possible.   Although the  

Manual  states  that  rainfall  deficit  is  the  most  important  

indicator,  State  Governments  seem  to  be  giving  greater  

weightage to the area of crop sown out of the cultivable area  

and  not  to  rainfall  deficit.   For  this  reason,  necessary  

weightage is required to be given to each key indicator.

(ii) The time limit for declaring a drought should be mandated  

in the Manual. Although it is stated in the Manual that the best  

time to declare a drought, if necessary, is October, we find that  

some  States  have  declared  a  drought  in  November  and  

December and in the case of Gujarat in April of the following  

year.  Obviously this is far too late.  The impact and effect of a  

late declaration of drought has already been mentioned in the  

Manual and it is not necessary to repeat it. Hence the necessity  

of a timely declaration.  

(iii) The  revised  and  updated  Manual  should  liberally  

delineate the possible factors to be taken into consideration for  

declaration  of  a  drought  and  their  respective  weightage.  

Haryana  has  added  several  factors  as  has  been  mentioned  

above. Similarly, Bihar has added some other factors such as  

perennial rivers while Gujarat has added factors such as the  

nature  of  the  soil  etc.  While  we  appreciate  that  it  may  be  

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difficult  to  lay  down specific  parameters  and  mathematical  

formulae, the elbow room available to each State enabling it to  

decline declaring a drought (even though it exists) should be  

minimized.  This  would  certainly  be  in  the  interest  of  the  

people who face distress because of a drought or a drought-

like situation.

(iv)The  nomenclature  should  be  standardized  as  also  the  

methodology to  be  taken  into  consideration  for  declaring  a  

drought  or  not  declaring  a  drought.  The  Gujarat  Relief  

Manual,  for  example,  apparently  refers  to  “scarcity”  and  

“semi-scarcity”.  The State Government appears to be hesitant  

to use the word “drought” even though a drought or a drought-

like situation exists.  Similarly, due to a lack of standardization  

in the annewari  system of crop assessment,  Gujarat takes 4  

annas out of 12 annas as a base for determining if there is a  

drought-like  situation.  In  areas  where  the  crop  cutting  is  

between 4 annas and 6 annas, there is discretion in the State  

Government to declare or not to declare a drought.  On the  

other  hand,  Maharashtra  uses  50  paise  as  the  standard  the  

annewari system for declaring a drought.  There ought to be  

some standardization so that each State does follow its own  

methodology in declaring or not declaring a drought.

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5. In the proposed revised and updated Manual  as  well  as  in  the  

National Plan, the Union of India must provide for the future in terms  

of  prevention,  preparedness  and  mitigation.  Innovative  methods  of  

water conservation, saving and utilization (including ground water)  

should be seriously considered and the experts in the field should be  

associated  in  the  exercise.  Illustratively,  dry  land  farming,  water  

harvesting,  drip  irrigation  etc.  could  be  considered  amongst  other  

techniques.

6. The  Government  of  India  must  insist  on  the  use  of  modern  

technology to make an early determination of a drought or a drought-

like situation.  There is no need to continue with colonial methods and  

manuals  that  follow  a  colonial  legacy.   It  is  high  time  that  State  

Governments  realize  the  vast  potential  of  technology  and  the  

Government of India should insist on the use of such technology in  

preparing uniform State Management Plans for a disaster.

7. The Secretary in the Department of Agriculture, Cooperation and  

Farmers Welfare, Ministry of Agriculture in the Government of India  

is directed to  urgently hold a meeting within a week with the Chief  

Secretary  of  Bihar,  Gujarat  and  Haryana  to  review  the  apparent  

drought situation with all the available data and if so advised persuade  

the  State  Government  to  declare  a  drought  in  whichever  district,  

taluka, tehsil or block is necessary. It should be emphasized that there  

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is  no  loss  of  face  or  prestige  or  dignity  in  the  State  Government  

declaring  a  drought  if  it  is  warranted,  although  succour  to  the  

distressed  might  be  too  late  in  the  day.  The  Secretary  in  the  

Department of Agriculture, Cooperation and Farmers Welfare in the  

Union  of  India  might  also  consider  convening  a  meeting  of  the  

National Executive Committee and issue directions, if  necessary, to  

the  States  of  Bihar,  Gujarat  and  Haryana  and  their  Authorities  in  

response to any threatening disaster situation or disaster.

8. Humanitarian  factors  such  as  migrations  from  affected  areas,  

suicides, extreme distress, the plight of women and children are some  

of the factors that ought to be kept in mind by State Governments in  

matters pertaining to drought and the Government of India in updating  

and  revising  the  Manual.  Availability  of  adequate  food  grains  and  

water  is  certainly  of  utmost  importance  but  they  are  not  the  only  

factors required to be taken note of.  

……………………..J  (Madan B. Lokur)

New Delhi;               ……………………J May 11, 2016               (N.V. Ramana)

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