SWARAJ ABHIYAN - (IV)versusUNION OF INDIA & ORS.

                       [2016] 9 S.C.R. 331


                    SWARAJ ABHIYAN - (IV)                                A
                                  v.
                    UNION OF INDIA & ORS.
                (Writ Petition (Civil) No. 857 of2015)
                           MAY 13, 2016.                                 B
        [MADAN B. LOKUR AND N.V. RAMANA, JJ.]
       Public interest litigation - Issues as regards relief for crop
loss, establishing fodder banks, crop loan re-structuring or
restructuring bank loans - Prevailing drought or drought like            C
situation - Prayer that the relief or subsidy extremely low and only
where crop Joss is 33% and above, relief subsidy to be adequate
and to be given timely - Also sought effective management of the
Fodder Banks in the drought affected areas and establishment of
Fodder Banks where no such bank established; and deferment of
arrears and restructuring of loans for the drought affected farmers      D
- Held: Quantum of monetary relief given to a farmer is a matter of
policy - Issues regarding establishing fodder banks or restructuring
bank loans is to be decided by expert, even then there is likely to be
difference of opinion between the experts - In view thereof, there
cannot be any judicially manageable standards for determining            E
issues of policy and it would be hazardous if not dangerous for the
Court to venture into such areas in which the court lacks expertise
- Implementation of the economic and fiscal policy or policy
impacting on drought effected persons and its_ monitoring to be seen
- In the process thereof, Union of India and State Governments to
set up committees or ombudsmen to see the faithful implementation        F
of the polices - Issuance of direction to the concerned authorities
in Union of India, State Governments and Reserve _Bank of India
and other banks to religiously implement their policies - As regards,
appointment of Court Commissioners to oversee the implementation
of various directions issued, there is no need for now - Applying        G
 theprinciple of continuing mandamus, petition ought not be disposed
of but should be kept pending to ensure that the directions that
 have been given are complied with by the Government of India as
well as the State Governments - Direction to Union of India to file
a status report stating the action taken by the Government of India
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                                331
332           SUPREME COURT REPORTS                         [2016] 9 S.C.R.


A     on the various directions - Doctrines/principles - Principle of
      continuing mandamus - Constitution of India - Art. 32.
            Constitution of India - Mandamus - Principle of continuing
      mandamus - Held: Is an integral part of our constitutional
      iurisprudence - Jn many public interest petitions, this Court has
B     continued to monitor the implementation of its orders and monitor
      the investigations into alleged offences where there has been some
      apparent resistance by the Government of India.
            Essar Steels Ltd. v. Union of India 2016 (4) SCALE
            267 : MANU/SC/043112016; Centre for Public Interest
c           Litigation v. Union of India 2016 (3) SCALE 712 :
            MANU/SC/0372/2016; MP. Oil Extraction v. State of
            Madhya Pradesh (1997) 7 SCC 592 : 1997 (1) Suppl.
            SCR 671; Villianur Iyarkkai Padukappu Maiyam v.
            Union of India (2009) 7 SCC 561 : 2009 (9) SCR 225;
            Peerless General Finance and Investment Co. Ltd. v.
D           Reserve Bank of India (1992) 2 SCC 343 : 1992 (1)
            SCR 406 - referred to.
                              Case Law Reference
            2016 (4) SCALE 267                referred to     Para 22
 E          2016 (3) SCALE 712                referred to     Para 23
            1997 (1) Suppl. SCR 671           referred to     Para 23
            2009 (9) SCR 225                  referred to     Para23
            .1992 (1) SCR 406                 referred to     Para23
 F          CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.
      857 of2015.
            Under Article 32 of the Constitution oflndia.
         Prashant Bhushan, Roh it Kr. Singh, Govind Jee, 0. Kuttan, Advs.,
G for the Petitioner.
         P.S. Narasimha, Tushar Mehta, ASGs, Ajit Kumar Sinha, Sr. Adv.,
   Anil Grover, Irshad Ahmad, AAGs, Mukul'Singh, Irhan George, Ajay
   Sharma, Sridhar Potaraju, B.K. Satija, Neeraj Kumar Sharma, Guntur
   Prabhakar, Ms. Prema Singh, Gopal Singh, Manish Kumar,A.P. Mayee,
 H Ms. Shashi Juneja, A. Selvin Raja, Ms. Hemantika Wahi, Kabir Hathi,
                                               '
    SWARAJ ABHIYAN - (IV) v. UNION OF INDIA & ORS.                           333


Ms. Puja Singh, Ms. Noopur Singhal, Manan, Dr. Monika Gusain, Tapesh         A
Kumar Singh, Kumar Anurag Singh, Mohd. Waquas, Shashank Singh,
V. N. Raghupathy, C. D. Singh, Ms.· Sylona Mahapatra, Udit Arora,
Nishant R. Katneshwarkar, Sibo Sankar Mishra, Umakant Mishra,
S. Udaya Kumar Sagar, Krishna Kumar Singh, Upendra Mishra, Vinay
Garg, Advs., for the Respondents.
                                                                             B
      The Judgment of the Court was delivered by
       MADAN B. LO KUR, J. 1. In three earlier decisions concerning
the prevailing drought or drought-like situation, we had stressed the
obligation of the Government oflndia complying with all the provisions
of the laws enacted by Parliament, namely, the Disaster Management           c
Act, 2005, the National Food Security Act, 2013 and the Mahatma Gandhi
National Rural Employment Guarantee Act, 2005. This will, ofnecessity,
require establishing and constituting bodies and authorities provided for
by law and making available the necessary finances for implementing
and abiding by the law. The State cannot say that it is not bound to
follow the law and cannot adhere to statutory provisions enacted by           D
Parliament and create a smokescreen of a lack of finances or some
other cover-up. The rule of law binds everyone, including the State.
      2. In this decision, we concern ourselves with the remaining
substantive issues raised by the petitioner Swaraj Abhiyan.
                                                                              E
      Relief for Crop Loss
       3. The grievance of Swaraj Abhiyan is that the 'Crop Input
Advance' or the 'Agricultural Input Subsidy' offered by the Government
oflndia is far too low and in the event of a drought, the monetary relief
(compensation or ex gratia) received by a farmer does not even cover F
the cost of cultivation of crops. Reference is made to the cost of
cultivation of some principal crops in India relating to 2015-16 (average
2010-11 to 2012-13) obtained from the Comprehensive Scheme for
Studying the Cost of Cultivation of Principal Crops in India by the
Directorate of Economics and Statistics in the Ministry of Agriculture.
By way of illustration, it has been pointed out that in respect of some G
Kharif crops such as paddy, the cost per hectare is Rs. 42,441; for maize
it is Rs. 31,492 per hectare; for jowar it is Rs. 27,292 per hectare; for
bajra it is Rs. 19,558 per hectare.
      4. According to the petitioner, in terms of the norms. of assistance
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334             SUPREME COURT REPORTS                          [2016] 9 S.C.R.


A     from the States Disaster Response Fund (SDRF) and the National
      Disaster Response Fund (NDRF) the input subsidy where the crop loss
      is 33% and above for agriculture crops, horticulture crops and annual
      plantation crops is Rs. 6,800/- per hectare in rainfed areas and restricted
      to sown areas; Rs.13,500/-per hectare in assured irrigated areas, subject
      to minimum assistance not less than Rs. 1,000 and restricted to sown
B
      areas. Reference in this regard is made to a letter dated 81h April, 2015
      issued by the Ministry of Home Affairs (Disaster Management Division).
      This is said to be clearly insufficient.
             5. On these broad facts, the first prayer made by the petitioner is
      that the relief or subsidy is extremely low and only where the crop loss
c     is 33% and above .. The amount should be realistic and there is no reason
      why an arbitrary figure of33% of crop loss should be fixed. It is submitted
      that the subsidy is a safety net for farmers in times of distress and
      therefore the compensation should be far more realistic in the event of a
      failed crop.
D            6. The second prayer is connected with the first prayer and is to
      the effect that farmers should be given immediate relief for crop loss for
      the year 2015-16. The relief or subsidy should not be only adequate but
      should also be given timely with the entire process being transparent so
      that there is no allegation of corruption.
 E           7. In response, the Union oflndia submits that under Section 46
      of the Disaster Management Act, 2005, the Central Government has
      constituted a National Disaster Response Fund (NDRF) for meeting
      any threatening disaster situation or disaster. This is exclusively for the
      purposes ofalleviating the adverse impact ofa disaster. Similarly, under
 F    Section 48 of the Disaster Management Act, the State Governments
      have constituted a fund called the State Disaster Response Fund (SDRF).
          8. The I41h Finance Commission has recommended an allocation
   of Rs. 61,219 crores as the aggregate corpus for the SDRF for the
   period 2015-20. The norms for providing financial assistance have been
 G revised on 81h April, 2015 (as mentioned above) and the Agricultural
   Input Subsidy that was earlier Rs. 4,500 per hectare with the crop loss
   being 50% and above has since been revised upward by an order dated
   811t April, 2015 to Rs. 6,800 per hectare where a crop loss is 33% and
   above in respect ofrainfed areas. Similarly, there has been an upward
   revision in respect of irrigated areas and perennial areas. It is therefore
 H
    SWARAJ ABHIYAN - (IV) v. UNION OF INDIA & ORS.                          335
                [MADAN B. LOKUR, J.]

submitted that adequate provision has been made in this regard and the      A
State Governments, even in the drought affected States, are entitled to
utilize the funds available in terms of the norms laid down.
       9. It is further submitted that in addition to the amount
recommended by the l 4'h Finance Commissio_n towards the SDRF, the
Government oflndia has also approved a sum ofabout Rs. 12,774 crores        B
from the NDRF to the State Governments in the grip of drought. This
amount is also considerably enhanced from the amount made available
in previous years.
      l 0. It is further submitted that the norms are not a compensatory
measure but are a measure of immediate relief. Therefore, to require        c
payment of the exact amount of subsidy as determined by the Directorate
of Economics and Statistics in the Ministry ofAgriculture would not be
appropriate.
       11. With regard to the funds in the NDRF, it is submitted that the
basis of the fund is the estimated tax revenue collection in the form of D
National Calamity Contingency Duty imposed on Union Excise and
Customs and releases are made to the State Governments by the Ministry
of Finance of the Government oflndia from this provision.
      Fodder Banks
        12. The grievance of the petitioner in this regard is that even E
though a Fodder Bank has been established under the Centrally Sponsored-
Fodder and Feed Development Scheme and the National Mission for
Protein Supplements for the areas notified as drought affected in 2012,
the benefits under this Scheme and Mission have not been extended to
all drought affected areas in the country for the year 2015-16 and 2016-
                                                                         F
17. It is prayed that the Scheme and Mission be extended to all drought
affected areas and there should be no financial cap on support for this
component. It is further submitted that in anticipation of drought the
Union oflndia had issued a detailed Advisory on J2•h September, 2012
and that should be implemented in letter and spirit. _
                                                                             G
       13. The purpose of the Fodder Bank is to meet the requirement of
livestock in areas notified as drought affected. Fodder Banks are
expected to facilitate procurement and storage of fodder from surplus
areas or areas where rainfall is satisfactory and this fodder can be than
distributed to cattle camps and deficient areas. To reduce the cost of
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336            SUPREME COURT REPORTS                           [2016) 9 S.C.R.


A     establishment of a Fodder Bank, it appears to have been recommended
      that low capacity tractor mountable fodder block machine should be
      used as far as feasible.
            14. The prayer of the petitioner in this respect is for the effective
      management of the Fodder Banks in the drought affected areas and for
 B    the establishment of Fodder Banks where no such bank has been
      established in a drought affected area.
             15. The response of the Union of India is that apart from the
      above-mentioned Scheme and Mission, the Department of Animal
      Husbandry, Dairying and Fisheries is implementing the National Live
 c    Stock Mission and one of the sub-missions of this Mission is feed and
      fodder development. The State Governments can avail financial
      assistance under the sub-mission.
             16. In addition, the Central Govemment has approved an Additional
      Fodder Development Programme as a special scheme of the Rashtriya
 D    Krishi Vikas Yojna for the year 2015-16 to mitigate the adverse impact
      of drm1ght in drought affected districts/blocks of the country. Funds
      have been allocated for this purpose to various States as per the cost
      norms.
            Crop Loan Re-structuring and Relief
 E        17. In this regard, the submission of the petitioner is that deferment
   of arrears and re-structuring of loans is an important aspect ofrelieffor
   the drought affected farmers and necessary directions should be given
   to Rural and Cooperative Non-Scheduled Banks, Scheduled Banks
   including Nationalized Banks etc. to abide by the guidelines issued by
   the Reserve Bank oflndia. The State Level Bankers Committees have
 F
   considerable discretion in the matter of deferment of arrears and re-
   structuring of loans with the result that re-structuring has not taken place
   as per the guidelines in several States. The prayer of the petitioner
   therefore is to have a more realistic deferment of arrears and re-
   structuring of loans by all the concerned banks, particularly in respect of
 G farmers in drought affected areas.
             18. In response, it is stated by the Union oflndia that the Reserve
      Bank oflndia has issued a Master Circular on 1st July, 2015 (updated up
      to 21st August, 2015) while NA BARD has issued a circular on 261h
      August, 2015 addressed to all Cooperative Banks and Regional Rural
 H
     SWARAJ ABHIYAN - (IV) v. UNION OF INDIA & ORS.                           337
                 [MADAN B. LOKUR, J.]

Banks recommending a moratorium of one year in re-structuring the             A
loans of borrowers affected by a natural calamity. However, over-due
loans are not included since they are not attributed to a natural calamity.
Notwithstanding this, there is no prohibition on any bank from re-
structuring any loan including any over-due loan subject to the guidelines
of the Reserve Bank oflndia and in accordance with their internal policy      B
guidelines.
      Discussion and conclusions
        19. lt is quite apparent from the submissions made and the reliefs
claimed that essentially the concerns raised pertain to policy, whether
ecqnomic and fiscal policy or policy impacting on drought effected c
persons. We are certainly not equipped to commend the view expressed
by the petitioner or the view expressed by the State on issues of this
nature. It is really for experts in the field to take a call, for example, on
what percentage of crop loss deserves to be addressed, whether the
crop loss should be 33% and above or 50% and above. The quantum of
monetary relief to be given to a farmer is again a matter of policy.          D
          20. Similarly, issues regarding establishing fodder banks or
restructuring bank loans, the extent to which restructuring should be
carried out are all issues that are required to be decided by experts.
Even then, within the community of experts, there are likely to be
differences of opinion. While one set of experts might fix crop loss for E
relief at 50% another set of experts might consider the crop loss for
relief above or below 50%. This being the position, there cannot be any
judicially manageable standards for determining issues of policy and it
would be hazardous if not dangerous for us to venture into such areas
when we lack the expertise to do so.
                                                                              F
        21. This Court has, on several occasions, dealt with issues of
policy whether having an economic and fiscal flavour or even mundane
matters of policy including, for example, transfer of government servants
from one place to another. This Court has not interfered in such matters
unless the policy is demonstrably perverse.
                                                                               G
      22. Fairly recently, in Essar Steels Ltd. v. U11io11 of /11dia this
                                                                      1



Court summed up the position in law as follows:
       "Broadly, a policy decision is subject to judicial review on
       the following grounds:
 1
   2016 (4) SCALE 267 = MANU/SC/0431/2016
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338               SUPREME COURT REPORTS                        [2016] 9 S.C.R.


A           (a) ifit is unconstitutional;
            (b) if it is de 'hors the provisions of the Act and the
            Regulations;
            (c) if the delegatee has acted beyond its power of delegation;
 B          (d) if the executive policy is contrary to the statutory or a
            larger policy."
         23. There are several decisions to the same effect including, for
   example, another recent decision of this Court Centre/or Public Interest
   Litigation v. Union of India~ and some earlier decisions such as M.P.
 C Oil Extraction v. State of Madllya Pradesll 3, Villianur Iyarkkai
   Padukappu Maiyam v. Union ofIndia~ and of course the Constitution
   Bench decision in Peerless General Finance ant/Investment Co.
   Ltd. v. Reserve Bank of India;. For the present purposes, the
   summation provided in Essar Steels is quite clear:
 D          "Executive policies are usually enacted after much
            deliberation by the Government. Therefore, it would not be
            appropriate for this Court to question the wisdom of the
            same, unless it is demonstrated by the aggrieved persons
            that the said policy has been enacted in an arbitrary,
            unreasonable or mala fide manner, or that it offends the
 E          provisions of the Constitution oflndia."
             24. Therefore, the issues raised by the petitioner should actually
      be looked at from the point of view of implementation of a policy and
      monitoring its implementation. In our opinion, in the process of
      implementation and monitoring, what is important is for the Union of
 F    India and the State Governments to set up watch-dog committees or
      ombudsmen to see that the polices framed are faithfully implemented.
      There is little utility in knee-jerk reactions and stumbling along from one
      situation to another.
         25. Ad hoc measures really do not serve any purpose and eventually
 G the consequence of an ad hoc reaction tends to travel to this Court for a
   response. The one possible solution appears to be for the Union oflndia

      '2016 (3) SCALE 712 = MANU/SC/0372/2016
      3 (I997J1  sec 592
      • c2009J 1 sec 561
 H    ' (1992) 2 sec 343
     SWARAJ ABHIYAN - (IV) v. UNION OF INDIA & ORS.                            339
                [MADAN B. LOKUR, J.]

and the States to set up their respective watch-dog committees that will       A
specialize in certain disciplines for the purposes of implementation and
monitoring the schemes and policies framed by the Union of India and
the State Governments. A policy might be acceptable and worthy, but
often it is the effective implementation and monitoring that is lacking.
       26. Under the circumstances, we are inclined to issue only one          B
direction in respect of the three issues raised by the petitioner which is
to direct the concerned authorities in the Union of India, the State
Governments and the Reserve Bank of India and other banks to
religiously implement their policies since they are ultimately intended for
the benefit of the people of our country and not for the benefit of any        C
stranger.
      Court Commissioners
       27. Learned counsel for the petitioner insists on the appointment
of Court Commissioners to oversee the implementation of the various
directions issued by us. Reference is made by learned counsel to what           o
is commonly called the Right to Food Campaign which resulted in the
appointment of Commissioners by this Court to report on the functioning
and improvement of the public distribution system. Some useful and
valuable suggestions were certainly given by the Court Commissioners
and which were implemented under the directions of this Court. Learned
counsel for the petitioner submits that it is necessary for us to direct the    E
appointment of Court Commissioners so that the provisions of the various
statutes under consideration are faithfully implemented and the various
schemes framed by the Government oflndia and the State Governments
are implemented in their true spirit.
       28. Learned Additional Solicitor General vehemently opposes this         F
plea on the ground that the appointment would serve no useful purpose.
He submits that it is not as ifthe officers in the Government oflndia are
not doing their work. While there may be some laxity or slackness on
occasion but that cannot be generalized to necessitate some external
authorities to monitor the functions of the officers of the State. He           G
submits that there are internal checks within the administration which
ensure that governance is carried out for the welfare of the people and
in a transparent and accountable manner.
      29. We have given our consideration to the submissions made by
learned counsel for the petitioner and the learned Additional Solicitor         H
340              SUPREME COURT REPORTS                            [2016] 9 S.C.R.


A     General and find that the system of in-house checks has already been
      statutorily recognized for all the issues that we have dealt with in this
      case. For example, the Disaster Management Act, 2005 constitutes
      authorities and bodies like the National Disaster Management Authority,
      the National Executive Committee etc. to ensure that the Act is faithfully
      implemented and measures taken are reviewed and monitored from time
B
      to time. Similarly, the National Food Security Act, 2013 and the Mahatma
      Gandhi National Rural Employment Guarantee Act, 2005 also mandate
      the constitution and establishment of bodies and authorities under the
      statute to review and monitor the implementation of the statute and the
      schemes or programs thereunder.
c            30. It is another matter altogether that some provisions of these
      statues have been converted into a dead letter and various authorities
      under these statutes have not yet been constituted compelling us to
      comment on the failure of the Executive branch of the Government of
      India and the State Governments to faithfully implement the law enacted
D     by Parliament. We have also given directions in this regard and we
      certainly expect a favourable response to the directions issued and their
      compliance. For the present, therefore, we do not see the need for the
      appointment of any Court Commissioner.
              Continuing mandamus
 E           31. We are firmly of the view that the principle of continuing
      mandamus is now an integral part of our constitutional jurisprudence.
      There are any number of public interest petitions in which this Court has
      continued to monitor the implementation of its orders and on occasion
      monitor investigations into alleged offences where there has been some
 F    apparent stonewalling by the Government of India. A few years ago,
      one of us had occasion to advert to the requirement of a continuing
      mandamus as a part of our jurisprudence. 6 It is not necessary to repeat
      the views expressed therein.
           32. Under these circumstances, we agree with learned counsel
 G for the petitioner that this petition ought not be disposed of but should be
   kept pending and the possibility of a continuing mandamus being issued
   ought to be kept open to ensure that the directions that have been given
   are complied with by the Government of India as well as the State
   Governments.
      6
          Manohar Lal Sharma v. Union oflndia. (2014) 2 SCC 532
H
      SWARAJ ABHIYAN - (IV) v. UNION OF INDIA & ORS.                           341
                 [MADAN B. LOKUR, J.]

       33. We adjourn this case to I" August, 2016 at 2.00 p.m. and            A
direct the Union of India to file a status report on or before 25'" July,
2016 stating the action taken by the Government of India on the various
directions that we have given in this case on different dates.


Nidhi Jain                                                 Matter adjourned.   B