The Supreme Court today said that if state governments maintain an "ostrich-like attitude" towards disasters like drought then the Centre cannot wash off its hands from the constitutional responsibility as the "buck stops" with it in matters concerning common people.
"It (Centre) 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," a bench comprising Justices M B Lokur and N V Ramana said.
"The Union of 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," the apex court said while passing a slew of directions on the issue of tackling a drought like situation.
The bench said that if Centre and state governments fails to respond to a developing crisis or a crisis in the making then the judiciary "can and must" consider issuing appropriate directions but "a Lakshman rekha" must be drawn.
"Surely, if a state government maintains an ostrich-like attitude, a disaster requires a far more proactive and nuanced response from the Union of India," the apex court said in its 53-page judgement while citing Bal Gangadhar Tilak's quote, "The problem is not lack of resources or capability, but the lack of will."
The bench noted that "lack of will" was amply demonstrated in this matter in which states of Bihar, Gujarat and Haryana were "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."
The apex court said it was "quite surprised" that neither a National Plan has been drawn nor there is a National Disaster Mitigation Fund even after 10 years of the enforcement of the Disaster Management Act, 2005.
"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," it said while directing the Centre to formulate a National Plan "at the very earliest and with immediate concern."
The apex court, which noted that around one-fourth of the total population of the country was affected by drought-like situation, also directed the Centre to establish a National Disaster Mitigation Fund within three months.
The bench said that the Centre must insist on the use of modern technology for early determination of 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," it said.
It pulled up Bihar and Haryana for their continued denial of having a drought-like situation but said that towards the fag end, Gujarat has admitted the existence of drought in its five districts.
"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," it said.
Regarding Haryana, the bench observed that disparity in the methodology of assessment of drought or a drought-like situation between it and the Centre was "quite stark".
The court said the system followed by Gujarat, which has declared drought in 994 villages last month, in assessing such situation does not meet with approval of manual or guidelines.
"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," it said.
The apex court also said that it was known in October 2015 that several districts in these three states were facing varying degrees of drought "yet, no preparatory steps appear to have been taken to tackle a possible disaster."
The bench said a final decision to declare drought is of the state but the resources available with the Centre can be effectively used to assist the states in having a fresh look into the data and information and to arrive at a correct decision in the interest of affected people.
"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 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 said.
While issuing a slew of directions, the apex court asked the Centre to constitute within six months a National Disaster Response Force with its own regular specialist cadre.
The court said there was a need to revise the contents of Centre's drought management manual as several new developments have taken place since it was published in 2009.
"We direct that the manual be revised and updated on or before December 31, 2016," it said adding that humanitarian factors, such as migrations from affected areas, suicides, extreme distress, the plight of women and children, should be kept in mind while updating and revising it.
"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," it said.
The bench directed the Secretary, Agriculture Ministry, to urgently hold a meeting within a week with the Chief Secretaries of Bihar, Gujarat and Haryana to review the apparent drought situation with all the available data.
It, however, clarified that other issues raised by the petitioner NGO, Swaraj Abhiyan, would be dealt in subsequent orders as the issues raised were in a sense quite disparate, though linked to the drought situation.
The PIL filed by the NGO had alleged that parts of 12 states of Uttar Pradesh, Karnataka, Madhya Pradesh, Andhra Pradesh, Telangana, Maharashtra, Gujarat, Odisha, Jharkhand, Bihar, Haryana and Chattisgarh were hit by drought and the authorities were not providing adequate relief.