LAW ANIMATED WORLD-31May2016

(2016) 1 LAW
RNI No. APENG/2005/18975
Annual Subscription Rs. 1200/-
ISSN 2277 8829
A world law fortnightly published from Hyderabad, India.
Editor: I. Mallikarjuna Sharma

ADVISORS: B.P. Jeevan Reddy (Former Judge, Supreme Court of India),
R.V.R. Chandrasekhara Rao (Politics Professor), V.V. Reddy (Economics Professor),
K. Subba Rao (Senior Advocate, Bangalore), Umesh Chandra (Sr. Advt., Lucknow), Ravi Kiran Jain (Sr. Advt., Allahabad),
Sagar Dhara (Engineer, Hyderabad), Dr. Koenraad Elst (Indologist, Belgium)
Volume 12: Part 1
31 May 2016
NO DEARTH OF DUMBHEADS
CONTENTS
1. No dearth of dumbheads
1
2. Historical inevitability or
2,
Electoral corruption? (44) [IMS] 75
3. Autobiography of Martyr
3-4
Ramprasad Bismil (23)
4. Raw Illusions,
Kunwar Khuldune Shahid
5-6
5. Prosecutor v. Jean Pierre

Bemba Gambo (5) [END]
[ICrC-Hague: Situation in CAR]
7-26
6. Swaraj Abhiyan-I v. Union

of India & Ors. [IND-SC] 27-46
7. Swaraj Abhiyan-II v. UoI 47-54
8. Swaraj Abhiyan-III v UoI 55-65
9. Swaraj Abhiyan-IV v. UoI 66-70
10. The Unknown Life of Jesus
Christ (2), Nicolas Notovitch 71-74
11. Poems, Walt Whitman
76
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No. 10
Galib
Courtesy: VC
Supreme Court of India
seems to be there at least in our country, as also in the lawyers community

which includes judiciary a la Galibs punching remark: kami nahin
Galib is duniya mein chutiyon kii, ek doondhe to sow miltea hain (O Galib, no
shortage of dumbheads in this world; search for one, you get a hundred). Long
back when this editor remarked on this to a senior advocate friend that
Sir, we are getting thousands such even without searching, he immediately
responded, O bhai, I am saying you can find such chutiyea on every branch and
every leaf of a tree you can see! Something of this sort should have enveloped
our Bar Council of India and apex judiciary; otherwise one cannot see any
reason in the so-called practice verification rules framed by the former and
not forthwith stayed by the latter. The same applies to the Madras High
Court which recently usurped drastic disciplinary powers over the erring
advocates, with powers to immediately stop their right to practice even as
an interim measure though there is contempt jurisdiction to deal with
emergent situations and also such thing as a State Bar Council to look into
complaints against erring advocates and the Court could have been wiser
and more tolerant to act as a forum of appeal/supervision in such matters.
The former this editor holds a more drastic curtailment of the rights of
advocates, with unwarranted, humiliating restrictions imposed, right in the
face of law and with ridiculous treatment of unexplained classes of
advocates. E.g., an advocate enrolled after 2010 would be able to flaunt his
state bar council enrollment certificate as his practice verification certificate
but all other long-standing members of the same fraternity even if they be
enrolled in the 1950s but not fortunate enough to have been designated senior
advocates or were more self-respecting and dignified to refuse to apply for such
honorary slots which should invariably be awarded by the superior Courts suo
motu or on recommendation of Bar Councils or Advocates Associations but never
on application by individual lawyers have to undergo all the embarrassing
process of compulsory application, payment of Rs. 250/- to 500/- fee, etc. to

get a certificate of verification of practice which appears nowhere in the
Advocates Act even. These Black Rules framed by the Bar Council of India,
by no means an adequately representative body in a federal polity, should
be thrown out lock, stock and barrel and this editor suggests the advocate
community should seriously protest and agitate to that end.
1
NOTE: The opinions and comments in the editorials are exclusively the Editors and
need not necessarily reflect the approval or consent of all or any of the
editorial advisors or of the publisher even - IMS.
(2016) 1 LAW
HISTORICAL INEVITABILITY OR ELECTORAL CORRUPTION?

[Tracing the history of Andhra, Visalandhra and separate Telangana movements]
Sripadi Venkata Gopala Krishnamma Pantulu

was in effect pointing out the defects and
manipulations in the different censuses that
artificially inflated the proportion of Oriyas and
deflated that of Telugus in the Berhampore district,
which reminds one of an axiomatic scholarly
censure lies, damn lies and statistics. Pantulu
also pointed out to the linguistic nationalism of the
Oriyas too, and the movement or demands they
were making for a compact oriya speaking state. He
wanted a sort of amicable settlement between
Telugus and Oriyas on their respective entitlements
in the border areas of Madras Presidency.
Andhra Patrika of 26 September 1921 reported
that the Ninth Andhra Mahasabha at Berhampore
was attended by 600 delegates and about 900
audience, that eminent leaders like Sri Tanguturi
Prakasam Pantulu, Kasinathuni Nageswara Rao,
Konda Venkatappaiah and Dr. Pattabi Sitaramayya
have come to attend the Mahasabha and it began
with the singing of the Vande Mataram hymn. The
above cited speech of the Chairman of the reception
committee was referred to in brief. Thereafter the
process of Sri Kasinadhuni Nageswara Rao Pantulu
proposing the name of Gampalagudem Zamindar
Sri Kotagiri Venkata Krishna Rao Bahadur as
President of the Mahasabha and Prakasam Pantulu
and Malladi Krishnamurthy supporting and the
delegates electing him as President was described.
The President was garlanded and then made an ex
tempore presidential address, in which he praised the
In the Mahasabha first of all resolutions

expressing sorrow and condolences on the expiry of
Lokamanya Bal Gangadhar Tilak, as also of Sri
Devaguptam Seshachalapati Rao, Tirupati Sastri,
Puranam Nagabhushana Sarma were unanimously
passed. Thereafter Andhraratna Sri Duggirala
Gopalakrishnaiah moved a resolution applauding
the courage and sacrifice of the Ali Brothers, and
other patriotic leaders like Sri Kichlew and Sri
Sankaracharya for daring the British government
and going to jail for the patriotic cause. Ms Duvvuri
Suramma declared that even many women were ready to
go to jail for the national cause. That resolution as also
a similar resolution praising the courage and

sacrifice of many Andhra political activists
participating in the national movement, and so
incarcerated, were passed. Later Desabhakta Konda
Venkatappaiah moved a resolution praising the
people of Chirala-Perala for their unrelenting
Satyagraha movement, Sri D. Gopalakrishnaiah
narrated to the audience the causes and details of
the said struggle and that resolution was also
unanimously passed. A resolution condemning the
profession of prostitution and the need to take
preventive measures in that regard was moved and a
sub-committee with Sri Ramamurthy, Hanumayya
Gupta, Sambamurthy, Yaminipurna Tilakamma and
Harisarvottama Rao was constituted, with
Sambamurthy as Secretary, and directed to report
their findings and suggestions to the Andhra
Provincial Congress Committee in that regard.
Another resolution condemning the practice of
untouchablity, and stressing the need to eradicate
that vice, was moved by Sri Hanumayya Gupta and
supported by Sri C.V. Rangaiah of Chittoor, and
unanimously passed by the Mahasabha. A
resolution condemning the use of notorious Press
Act provisions to suppress the paper Andha Vani
was also passed. It was also resolved that the
executive members of the Standing Committee
elected the previous year were to continue for the
current year. Strangely no separate, one may call repeat,
many historical achievements of the Andhras and

emphasized the need and importance of the Andhra
movement for a separate State and assured that there is
no fear or possibility of any violence erupting in the course
of the movement. He exhorted the delegates and
audience to fearlessly conduct the movement for the

development of Andhra language, culture and
distinct identity. Smt. Unnava Lakshmibayamma
and several other women also attended the meet and
all the delegates and audience were wearing Khadi
clothes.
- I. Mallikarjuna Sharma
resolution demanding the formation of Andhra State seems

to have been made this time at least not so reported in
Continued from Law Animated World, 15-05-2016 issue;

emphases in bold ours - IMS.
Andhra Patrika know not for what reasons.

(Go to p. 75)
Law Animated World, 31May 2016
AUTOBIOGRAPHY OF MARTYR RAMPRASAD BISMIL

on understanding that the person who made his
parents destitute by contributing all their and his
properties for the cause of service to the country,
who has gifted even the future position of his
own brother for the good of the country, who has
given away his body, soul and riches all (tanman-dhan) for the countrys cause and rendered
his final sacrifice, the same person has sacrificed
his beloved friend Ashfaq too at the altar of the
motherland.
PART 4:
6. Ashfaq
[Ashfaq!] What, however, was
the end result of all this love,
affection and friendship? You got
colored in the color of my own
ideas and ideals, and you too became a dedicated
revolutionary. And, from then on, the aim and
daily task you set yourself was as to how to
somehow instil revolutionary ideas in the minds
and hearts of Muslim youths and make them
participate in the revolutionary movement. You
tried to influence one and all among your
relatives and friends with your revolutionary
ideas and tried to bring them into the movement.
Often the other members of our revolutionary society
''

Oh Asgar! In the house of love
its a crime to be alive
Set foot here never
with live head your!
***
even used to get surprised as to how I could shape/make

a Muslim as a devoted member of the revolutionary
party. What all deeds and actions you did along
7. The Condemned Cell

Final moments are nearing. Two sentences of
death by hanging are swinging on our heads. The
police have been severely scolded by me in the
ordinaly life as also in the newspapers and other
journals. Further, I had vehemently condemned
and censured the Honorable Judge, Intelligence
(CID) police officer, Magistrate, Government
Pleaders and also the government itself in the
open court. So, in the hearts of every one of
those, my bitter words should be stinging sharply.
And I [we] have no loving friend, or an otherwise
helper, who could stand as support for me [us].
Only the Great Father, the Almighty (Paramatma
absolute Soul), is coming to mind. Reading this
sloka of Gita, some happiness is derived:
with me deserve much applause. You were fully

committed to carry out my commands like an
obedient devotee. You were quite large-hearted;
your feelings and ideas were so high [and noble].
If I have any peace of mind, it is due to the
achievement of yours that made my face shine
brilliant in the world. The event of Ashafaqullah
participating in the revolutionary movement will
be a remarkable one [to be written in golden
letters] in the history of India. You did not
hearken to your brothers, other relatives and other
friends who tried their best to wean you away
from the movement. Even after arrest you stood
firm on your ideals and commitments. As you are
physically so strong, so did you prove yourself
mentally so strong too, and spiritually quite
noble. Consequent to all this, the Court has
observed that you were my faithful lieutenant and
while delivering the judgment, the Judge had
adorned you with the garland of victory
(Jayamaala meaning the noose). Oh, beloved
brother of mine, you will certainly be very happy
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Whatever I did, has not been done by me;
When and Wherever I did something,
then it was You who did it and not Me
One who acts, without any attachment, dedicating all activities
to the Ultimate Truth, is not affected by any sin;
just like the lotus leaf in water [that doesnt get wet]
Continued from Law Animated World, 15 April 2016

issue; emphases in bold ours - IMS.
Bhagavad Gita, 5: 10
Law Animated World, 31 May 2016
Autobiography of Martyr Ramprasad Bismil
(2016) 1 LAW
All along my life, whatever I did was done so

thinking it was for the good and benefit of my
own country. Even when I cultivated my physique
through exercises, it was with the aim that I could
render patriotic service the better with a sound
and strong body. After so many efforts this
auspicious day has arrived. The fortune [credit] of
rendering the first sacrifice of life at the altar of
the motherland, after the 1857 Gadar (Rebellion)
incidents, by a resident of this United Provinces,
is going to accrue to this trivial body of mine
only.
I, however, am feeling so happy in this cell.

A long desire had I to stay in some sages cave
for some days and practice Yoga. So now, in my
final moments, that desire has also been fulfilled.
What if I didnt get a sages cave, I have got a
cave for meditation and practice. And from this
very cell I also got this fortune of writing some
final words and consecrating those to the people
of my country. May be through a study of my life
[as narrated herein] any other soul [person] can
possibly get benefited. With great difficulty this
auspicious opportunity became available to me.
The Government desires to kill me through

suffocation. That is why in this hot summer
season, the date of appeal was fixed three and a
half months after the delivery of the judgment.
For three and a half months I was virtually fried
in the condemned cell. This cell is worse than a
birds cage. [Especially,] the condemned cell[s]
in Gorakhpur Jail are built on an open ground
where no sort of any shade can be found. From 8
AM in the morning to 8 PM in the evening, due
to the mercy of the Sun God, and due to the
surroundings being sandy fields all, a sort of fire
rain would be showering. In the square cell, 9 feet
long and wide, there is only one gate 6 feet hegh
and 2 feet wide. To the backside wall, about 8-9
feet high from the floor, there is a 2 feet long and
1 foot wide window. And all the toilet freshup,
bathing and taking meals, etc. have to be
discharged in this cell itself. Then the mosquitoes
will be humming their sweet tunes all along the
night. With great difficulty one could get sleep
for 3-4 hours in the night and sometimes one
should make do with 1-2 hours sleep only. The
food is served in earthen vessels. Two kambals
(rugs) are given for spreading and covering
(wrapping) and this is a life of high sacrifice. All
the instruments (means) for saadhan (practice
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Getting am I now the feel of the post-death winds,
The mysteries of life are opening before my eyes!
Flaunt did I naked banners,
Enjoy did I the colors of ecstacy
So you see these manners of apathy
Havent accrued just like that to me
In faith and confidence surrendered your heart,
and also your looks to the beloved for her injustice
It is imperative in love that Whatever you have,
You have to dedicate and sacrifice it
And now I have this desire alone that

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Oh Lord, let Bismils corpse flow soon in the sea of death,
as murderers gleaming swords are like hungry fish in the sea
Think before one stigmatizes him as inefficient and worthless
As this desolate heart too had rehabbed several homes!
meaning intense meditation of God I think so said
satirically) are collected and made present here.
And every moment gives this education and

training that Get prepared for the final moment,
do worship and sing prayer songs of the God!
(to be continued)
RAW ILLUSIONS
- Kunwar Khudhune Shahid
A similar picture was painted in Lahore on

Easter Sunday, by TTP faction Jamaat-ul-Ahrar.
The establishment retaliated by airing Yadavs
confessions on TV, with Information Minister
Pervaiz Rasheed giving DG ISPR Lt Gen Asim
Bajwa company to show the world (i.e New
Delhi) that the government and the Army are on
the same page when it comes to India. A page
that keeps fluttering in the fluctuating political
winds.
In the rush to release the video amidst Iranian
President Hassan Rouhanis visit, the edits failed
to incorporate conclusive proof of Indian
involvement in the Lahore carnage. The rush was
evident once RAW Joint Secretary Anil Kumar
Gupta was mentioned as the man Yadav reports
to. There is no senior Indian intelligence official
that goes by that name.
But it was important to tell President Rouhani
about RAWs ambitions on either side of the PakIran border. For, just like Pakistans ties with
Afghanistan, the renewed relations with Iran have
to be founded on antagonism vis--vis India. And
of course, just because the idea has backfired for
the past two decades in Kabul doesnt mean that
this new adventure with Tehran wont work out.
While Islamabad has been sharing New
Delhis designs with a disinterested Tehran,
Indian Prime Minister Narendra Modi was
signing military deals with Saudi King Salman
bin Abdulaziz al-Saud in Riyadh. Saudi Arabia, the
Yesterday, Pakistani security agencies caught

an Afghan intelligence spy from Chaman near
the Af-Pak border. He was arrested with four
SMGs, explosives, scores of bullets and a sniper
scope. It is yet to be confirmed whether a
confession will be recorded and aired on national
television.
Last month the state unveiled the greatest
intelligence coup in recent South Asian history.
RAW agent Kulbushan Yadav (alternatively
spelled Jadev or Jadhav by purists) spilled the
beans on Indian involvement in Balochistan, and
their role in aggravating insurgency and
separatism in the province. Yadavs confession
was professionally recorded and edited, with
subtitles available in all relevant languages.
Maybe if our security forces were half as adept at
catching leaders of jihadist groups, and recording their
confessions and modus operandi, over 70,000 civilians
wouldnt have lost their lives in the past decade and a
half, and the debate over actual motivation of
country that instinctively looks to Pakistan for

leadership when it comes to any military assignments
the world over, signed defence pacts with the one
country that almost all of Islamabads (Rawalpindi)
guns are aimed at. But surely we can find a RAW
radical Islamists wouldve been long redundant.

Since filmmakers at Aabpara never got into
documenting jihadist chronicles out of
amiability as much as owing to a lack of buyers
the likes of TTP had to paint a gory picture
through schoolchildrens blood to get much
craved attention and assert their motives.
agent or two from Dammam.

Also, how will India a Hindu majority
country balance its ties with Iran and Saudi
Arabia, when Pakistan a Muslim brotherly
nation has failed to do so for decades? But New
Delhi would have the advantage of not worrying
about Sunni or Shia alliances. Modi wouldnt
Courtesy: Kunwar Khuldune Shahid & http://nation.com.pk/,

07 April 2016; K.K. Shahid is already introduced to our
readers; emphases in bold ours - IMS.
5
Raw Illusions (Kunwar Khuldune Shahid)
know or care whether Keralas Cheraman

Juma Masjid replica that he gifted King Salman is
run by Shias or Sunnis. The worst bit is that he
wont be expected to know so either.
At a time when India is hobnobbing with
Saudi, and Iran is following Afghanistan in not
paying heed to our conclusive proofs against
RAW does Pakistan have nothing going for it on
the diplomatic front? We have China.
(2016) 1 LAW
How would they know which one to arrest and

which one to let go? How would they
differentiate between the good and bad Taliban at
a time when jihadists have longed ceased to know
the difference themselves?
All these tough questions show that the
establishment has its plate full at a time when
New Delhi is trying to pull off a Bangladesh in
Balochistan.
When we were preparing our first batch of
good jihadists to liberate Kashmir and Kabul
in the 1960s, New Delhi switched the battlefield
to East Pakistan. Now that 50 years later were
still trying to liberate Kashmir and Kabul it
has moved the battlefield to Balochistan.
China our economic, energy, security and

diplomacy lifeline blocked Indias resolution to ban
Jaish-e-Muhammad (JeM) Chief Masood Azhar at the
UN when Saudi Arabia is imposing joint sanctions on
Lashkar-e-Taiba (LeT) with the US. Earlier it had
blocked similar resolutions targeting LeT's Zakiur-Rehman Lakhvi. Masood Azhars immunity was
reestablished once the Pakistani JIT confirmed that the
Pathankot attack was an inside job. The Pathankot
If only our policymakers addressed the Bengali and

Balochi concerns that allow India to move the goalposts.
attack was established as an inside job once

Yadav was caught in Balochistan.
But if Masood Azhar, Zaki-ur-Rehman Lakhvi
and Abdul Aziz all have immunity in
Islamabad, Rawalpindi and at the United Nations
then who is the Punjab operation against?
Jamaat-ul-Ahrar Spokesman Ehsanullah Ehsan
said following the Gulshan-e-Iqbal blast that the
group had arrived in Lahore. But Jamaat-ulAhrar had already launched attacks at the Wagah
border (November 2014) and Youhanabad
(March 2015) in the past 18 months. However,
this was before they had arrived in Lahore. So,
maybe the operation is against them now that
they have arrived.
The Punjab operation is primarily targeting
South Punjab, believed to be the origin of both
the Pathankot and Lahore attacks. TTP, JeM, LeJ,
LeT all have overlapped in the past decade to
form one big monolithic jihadist conglomerate
with multitudinous bases in southern Punjab.
How then would the security forces know
which jihadist is from JeM and which is affiliated
with the Taliban?
How would they know which one will selfimplode in New Delhi and which will blow up in
Islamabad?
Kashmir, Kabul and Chabahar can and will

be safeguarded from bases in Punjab. But it all
depends on the success of the ongoing military
operation in the province. Especially after it
becomes clearer who the target of the operation
is.
*****
IN RETROSPECT
{Sagas of heroism and sacrifice of Indian
revolutionaries during freedom struggle}
Collected and Edited by: I. MALLIKARJUNA SHARMA
5 volumes (7 books) running to about 2200 1/8 demy pages

Rare and precious interviews of several revolutionary
freedom fighters - colleagues of Bhagat Singh like Shiv
Varma, Jaidev Kapur, Durga Bhabi; deputies of martyr
Surya Sen such as Benode Behari Dutta, Sahay Ram Das;
veteran fighters of Telangana Armed struggle like B.N.
Reddy, Omkar, Mallu Swarajyam; founders of communist
movement in India and Andhra like SA Dange, SG
Sardesai, Kambhampati Satyanarayana, et al; of selfless
intellectuals such as Sri Vavilala Gopalakrishnaiah, Dr.
A.R. Desai et al; of several women leaders and fighters
like Dr. Lakshmi Sahgal of INA, Bina Das, Kamala
Mukherji, et al incorporated.
Entire set at a deep-discounted price
of Rs. 1500/- (for individuals only).
Contact:
I. BALAMANI, RAVI SASI ENTERPRISES,
H. No. 6-3-1243/156, M.S. Makta,
Opposite Raj Bhavan, HYDERABAD - 500 082.
(Ph: 040 - 23300284); E-mail: mksharma55@gmail.com
[Add Rs. 50/- for outstation cheques]
(2016) 1 LAW
Prosecutor v. Jean Pierre Bemba Gambo [ICrC-Hague: Situation in CAR]
F-321
o. V2 in Sibut in the days after the MLCs

arrival;2026 and
p. V1, a church, nuns, priests, an unidentified
Muslim man and his neighbour, the
gendarmerie, and mayor in Mongoumba on 5
March 2003.2027
THE INTERNATIONAL
CRIMINAL COURT AT HAGUE
N ICC-01/05-01/082/364
Monday, 21 MARCH 2016
Situation in the Central African Republic
in the case of The Prosecutor v. Jean-Pierre Bemba Gombo
641. The Chamber notes that V2, P69, P110, and

P112 were absent at the time their property was
appropriated. When V2, P69, P110, and P112
returned, they saw that their homes and, in the case
of V2, his store had been broken into and their
goods taken.2028 In Sibut, V2 also saw pillaged
items stockpiled by the MLC at their bases and
heard about pillaging committed by MLC troops
from others who were present.2029 Likewise, P69,
P110, and P112 observed other acts of pillaging in
PK12 and heard about pillaging committed by MLC
troops.2030 Noting further that the MLC troops
(2016) 1 LAW F-113 continued after F-320
VI. LEGAL FINDINGS

C. PILLAGING
640. The Chamber has found :

a. P68 and her sister-in-law in Bangui at the end of
October 2002;2012
b. P119 in Bangui after 30 October 2002;2013
c. P87 and her family in Bangui on or around 30
October 2002;2014
d. P23, P80, P81, and P82 in Bangui in early
November 2002;2015
e. P69s sister in PK12 the day after the MLC
arrived;2016
f. P69 in PK12 in November 2002;2017
g. P108 in PK12 during the MLCs presence;2018
h. P110 in PK12 the day after the MLC arrived;2019
i. P112 in PK12 in November 2002;2020
j. P22 and her uncle in PK12 on or around 6 or 7
November 2002;2021
k. P79 and her brother in PK12 several days after
the MLCs arrival;2022
l. P73 in PK12 at the end of November 2002;2023
m. P42 and his family in PK12 at the end of
November 2002;2024
n. a woman in the bush outside PK22 in November
2002;2025
constituted the sole armed group present in PK12 and

Sibut at the relevant times,2031 the Chamber finds that the
only reasonable conclusion is that V2, P69, P110, and P112
were able to identify those who pillaged their belongings.
642. Concerning all acts identified above,2032 the

perpetrators were of the same group and/or possessed
the same identifying characteristics as the MLC
soldiers who raped and murdered civilians.2033 The
Chamber therefore relies on the same factors and
reasoning in considering the identity of the
perpetrators, namely, the repeated interactions
between the victims and witnesses and the MLC
soldiers, the fact that the witnesses and victims
identified the perpetrators as Banyamulengus or
MLC, the troop movements and exclusive presence of
the MLC in a location, the perpetrators language,
their uniforms,2034 and the fact that their actions
2012
See Section V(C)(3)(a), para. 463.

See Section V(C)(3)(b), para. 470.
2014
See Section V(C)(3)(c), para. 471.
2015
See Section V(C)(4)(a), para. 495.
2016
See Section V(C)(4)(b), paras 496 and 501.
2017
2018
See Section V(C)(4)(c), paras 502 and 503.
2019
See Section V(C)(4)(d), para. 506.
2020
See Section V(C)(4)(d), para. 507.
2021
See Section V(C)(4)(e), para. 509.
2022
See Section V(C)(4)(f), paras 511 and 513.
2023
See Section V(C)(4)(g), paras 514 and 519.
2024
See Section V(C)(4)(g), paras 515, 517, and 519.
2025

See Section V(C)(9), para. 533.
2027
See Section V(C)(11)(b).
2028
See Sections V(C)(4)(b), V(C)(4)(d), and V(C)(9).
2029
2030
See Sections V(C)(4)(b), V(C)(4)(d), and V(C)(9).
2031
See Sections V(C)(4), para 485, and V(C)(9), para 531.
2032
See para. 640.
2033
See Sections VI(A), paras 626 to 627, and VI(B), paras
634 to 636.
2034
See Sections V(C)(3), V(C)(4), V(C)(5), V(C)(9), and
V(C)(11).
2013
2026
F-322
accorded with evidence of the MLCs modus operandi

and the perpetrators general motives in targeting the
civilian population.2035 The Chamber further notes
that, after the pillaging of his house in PK12 by the
same soldiers who stayed in it until mid-February
2003, P108 found documents which contained
headings and titles referring to the MLC.2036 In light of
the foregoing factors, taken together, the Chamber
by the MLC soldiers, was a formalised system of

compensation adopted by the MLC.2041 At most, the
Chamber considers that the MLC hierarchy, which
created the relevant circumstances, tacitly approved
the measures that MLC soldiers took, including
pillaging, to make ends meet.2042
645. In light of the foregoing considerations,

taken together, the Chamber finds beyond
reasonable doubt that the perpetrators of the acts
finds beyond reasonable doubt that the perpetrators of the

acts identified above were MLC soldiers.
identified above intended to appropriate the property

for private or personal use.
643. Regarding the requirement that the appropriated

items are intended for personal or private use, the
Chamber recalls that MLC soldiers personally used
pillaged goods, in particular, food, beverages, and
livestock, as well as furniture, and other wooden
items, that could be burned as firewood.2037 The
Chamber has further found that MLC troops traded
certain pillaged goods for other items, such as alcohol,
or forced civilians to buy back goods taken from them
or their neighbours.2038 Pillaged goods were also sent
to the DRC where they were, inter alia, kept by the
soldiers who had pillaged them, distributed to other
soldiers or commanders, placed at the disposal of the
party, or sold.2039 The items were appropriated from
civilians after the departure of General Bozizs rebels
from the relevant area, and were clearly not
appropriated out of military necessity. The uses noted
above, when considered in conjunction with the nature
of the items appropriated namely, personal effects,
household items (including appliances and furniture),
business supplies, tools, money, vehicles, and/or
livestock indicate that the perpetrators intended to
646. Concerning the scale and consequences of

the pillaging, the Chamber notes its findings that
MLC soldiers appropriated property from, inter
alia, individual victims, their families, a church,
nuns and priests residences, and a gendarmerie.
The perpetrators took numerous items from the
victims, including administrative documents,
clothing, furniture, tools, radios, televisions,
items of personal value, money, livestock, food,
vehicles, and fuel. In P42s words, they took
everything and some victims were left with
2043
nothing.
The consequences on victims were farreaching, impacting various aspects of their personal
2044
and professional lives.
Further, the Chamber
notes the consistent evidence that MLC soldiers

committed many acts of pillaging throughout the
2002-2003 CAR Operation and throughout the
areas in which they were present.2045 In light of
the above considerations, taken together, the
deprive civilians of their property for their own personal

use and that of other MLC soldiers and commanders, or
the private use of the MLC entity.
Chamber finds beyond reasonable doubt that the

appropriation of civilian property by MLC soldiers in
the CAR was on a large scale with grave consequences
for the victims.
644. The above is also
consistent with the Chambers

findings regarding the motives of the perpetrators, in
particular, self-compensation in the absence of adequate
2040
payment and rations.
In this regard, the Chamber
647. Finally, in respect of each of the acts

identified above, considering the circumstances
of the events, the Chamber finds beyond reasonable
notes that there is insufficient evidence to support a

finding that the so-called Article 15, although applied
doubt that the perpetrators knowingly and intentionally

appropriated the items of property identified in Section
V(C), without the consent of the owners, and intended to
deprive them of this property.
2035
See Section V(C)(14).

See Section V(C)(4)(c), para. 502.
2037
2038
2039
2040
See Section V(C)(14), para. 565. See, similarly, Katanga
Trial Judgment, paras 951-952.
2036
(2016) 1 LAW
2041

2043
2044
2045
2042
(2016) 1 LAW
648. Accordingly, noting its findings below on

the contextual elements of war crimes,2046 the
F-323
continued between, on the one hand, the forces

supporting President Patass, in particular, the MLC
and the small number of CAR forces frequently
accompanying them, and, on the other hand, General
Bozizs rebels along the road to PK22 in the first half
of November 2002,2052 around Damara in early
December 2002,2053 along the Bossembl-Bozoum
axis between mid-December and February 2003,2054
on the road to and around Sibut in late February
2003,2055 and along the Bossembl-Bossangoa axis in
late February or early March 2003.2056 On or about 6
March 2003, the MLC troops began to retreat towards
Bangui, engaging General Bozizs rebels along the
way until the MLCs withdrawal from the CAR on 15
March 2003.2057 The Chamber further incorporates by
reference its findings below as to the protracted nature
of the violence.2058
Chamber finds beyond reasonable doubt that MLC

soldiers committed the war crime of pillaging a town or
place in the CAR between on or about 26 October 2002
and 15 March 2003.
D. CONTEXTUAL ELEMENTS OF WAR CRIMES
649. In the Confirmation Decision, the Pre-Trial

Chamber found that there was sufficient evidence to
establish substantial grounds to believe that an
armed conflict not of an international character
existed between the organized armed group of Mr
Boziz on the one hand, and troops supporting Mr
Patass, including the USP and the FACA, a group
of 500 predominantly Chadian mercenaries, 100
Libyan troops, together with approximately 1,500
MLC soldiers on the other hand, in the period from
on or about 26 October 2002 to 15 March 2003, on
the territory of the CAR.2047
652. Noting the Defence submissions that only

hostilities between the MLC and General Bozizs
rebels may be considered in assessing whether there
was an armed conflict,2059 the Chamber emphasises
that the conflict was between the forces supporting
President Patass and General Bozizs rebels. The
MLC, with a limited number of CAR forces
frequently
accompanying
them,
operated
independently of other armed forces in the field.
However, it is irrelevant that, for example, before the
arrival of the MLC troops in the CAR, forces other
than the MLC were engaged, in support of President
Patass, in hostilities with General Bozizs rebels. At
all times relevant to the charges, there was a resort to
armed force and protracted violence between the
forces supporting President Patass and General
Bozizs rebels. At no time during the period of the
charges was a peaceful settlement reached between
the parties to the conflict. In light of the above, the
Chamber finds beyond reasonable doubt that during
the time period relevant to the charges namely, from
on or about 26 October 2002 to 15 March 2003 and
regardless of whether the armed conflict started before
1. Existence of an armed conflict not of

an international character
650. By 25 October 2002, there was a resort to

armed force in the CAR between the FACA and
other forces supporting President Patass, and
General Bozizs rebels.2048 Hostilities continued
after the MLCs arrival in support of President
Patass on 26 October 2002, with a large-scale
offensive commencing on 30 October 2002, during
which General Bozizs rebels were driven out of
Bangui.2049 Afterwards, as highlighted by the
Defence2050 and as found by the Chamber, there
were breaks in hostilities and, at various points,
General Bozizs rebels fled as the MLC approached.
Nevertheless, these breaks were not the result of a
peaceful settlement2051 and were merely temporary
lulls in active engagements between the parties.
651. After the MLC established a base in PK12, in
early November 2002, the regular use of armed force
2052

2054
See Section V(C)(7), paras 527 to 528.
2055
2056
2057
2058
See Section VI(D)(3).
2059
See, inter alia, Defence Closing Brief, para. 413.
2046
2053
See Sections VI(D) and VI(E).

2047
Confirmation Decision, para. 212.
2048
See Section V, para. 379.
2049
See Sections V(C)(2) and V(C)(3), para. 460.
2050
Defence Closing Brief, paras 415 to 416, 418 to 420,
and 423; and Defence Reply Brief, para. 62.
2051
See Section III(F)(1), para. 128.
F-324
(2016) 1 LAW
25 October 2002, there was an armed conflict on the

territory of the CAR.
General Bozizs rebels were not acting on behalf, i.e.

2068
under the overall control, of any foreign government.
653. The armed conflict was confined to the territory of

2060
the CAR.
The FACA, USP, MLC, some Libyan
troops, and several militias including the group
headed by Mr Abdoulaye Miskine, the Sarawi, the
Balawa, the SCPS, the Karako and Captain Paul
Barrils troop all fought on behalf of President
Patass.2061 The CEMAC forces were also charged
with his protection.2062 On the other hand, General
Bozizs rebels, supported by Chadian troops,
fought on behalf of General Boziz.2063 The
656. In light of the above, the armed conflict,

which was confined to the territory of the CAR,
cannot be viewed as one in which two or more
states opposed each other, or one in which
territory was occupied by a hostile, foreign state.
The Chamber thus finds beyond reasonable doubt
that the armed conflict in the context of the 2002-2003
CAR Operation was not of an international character.
2. Governmental authorities and

organized armed groups
Chamber also notes that there were CEN-SAD forces

present in the CAR during the 2002-2003 CAR Operation;
however, they were neither engaged in, nor party to the
2064
armed conflict.
In turn, their presence cannot impact
on the characterisation of the armed conflict as either
international or not international.
657. The parties to the armed conflict consisted of

the forces supporting President Patass namely,
the FACA, USP, MLC, some Libyan troops, and
militias supporting President Patass on the one
hand, and, on the other, General Bozizs rebels.
658. The MLC contingent in the CAR, invited by and
654. Recalling that a conflict will only be transformed to

an international armed conflict where a second state is
involved, directly or indirectly, on an opposing side of the
conflict, the Chamber focuses its analysis on whether
acting in support of President Patass, had an internal

hierarchy, command structure, rules, and available
military equipment, including means of transport,
communications devices, and weapons.2069 The MLC
had the ability to impose discipline, and plan and
carry out military operations.2070 As to the extent,
seriousness, and intensity of its military involvement,
the MLC troops, and the limited number of CAR
troops frequently accompanying them, conducted
military operations, which lasted approximately four
and a half months, involved regular periods of active
hostilities, and covered a large geographical area.2071
The MLC forces in the CAR, as an organized armed
group, and other aligned troops and militias as
identified above, fought in support of the
governmental authorities of the CAR, headed by
President Patass.
659. General Bozizs rebels acted in opposition to
the CAR governmental authorities and supporting
forces. General Bozizs rebels had a command
structure and available military equipment, including
communications devices and weapons.2072 Further,
although General Bozizs rebels were not paid, were
undisciplined, and received minimal, if any, training,
General Bozizs rebels, or any aligned forces, were

acting on behalf of a foreign government.
655. The Chamber notes that General Bozizs
rebels included some Chadian nationals, comprising
a limited number of the troops acting on General
Bozizs behalf.2065 Recalling, however, the
relevant test set out in Section III(F)(1), the
Chamber rejects the Defence submission that the
mere involvement of non-CAR nationals would be
sufficient in itself to transform the conflict into an
international armed conflict.2066 The Chamber notes
that many of General Bozizs rebels resources
were captured from the FACA. While the Chadian
government also provided some troops, arms,
ammunition, and vehicles, there is no evidence that
the Chadian government had any role in organizing,
coordinating, or planning the military actions of General
2067
Bozizs rebels.
Accordingly, the Chamber finds that
2060
See Section V and paras 650 to 651.

See Section V(B)(1).
2062
See Section V(B)(1), para. 409.
2063
2064
2065
2066
Defence Closing Brief, para. 413.
2067
2061
2068
See Section III(F)(1), para. 130.

See Sections V(A) and V(B)(2).
2070
2071
See Sections V(C) and VI(D)(1).
2072
2069
10
(2016) 1 LAW
F-325
President Patass, beginning on 26 October 2002.2078

More MLC reinforcements were sent to the CAR in
late January or early February 2003.2079 Throughout
the armed conflict, the forces supporting President
Patass, including the MLC, mobilised and distributed
weapons and other logistics. The armed conflict
covered a large geographical area of the CAR, lasted
more than four and a half months, and was
characterised by regular hostilities, resulting in
numerous casualties, including hundreds killed and
wounded in action.2080 The armed conflict attracted
the attention of the UN, local and international media,
and NGOs, such as FIDH.2081
the Chamber finds that the ability to plan and carry

out military operations is the only reasonable
conclusion to be drawn from the extent, seriousness,
and intensity of the military involvement of General
Bozizs rebels in the conflict.
660. Indeed, General Bozizs rebels were able to, by

25 October 2002, take control of sizeable territory in
the CAR, including large areas of Bangui.2073 From on
or about 26 October 2002, General Bozizs rebels
were engaged in regular hostilities, for example, in
Bangui at the end of October 2002, along the road to
PK22 in the first half of November 2002, around
Damara in early December, and along the
Bossembl-Bozoum axis from mid-December
2002.2074 By January 2003, there was a turning point
in the conflict, as the rebels were able to once again
advance towards Bangui and re-capture various areas
of the CAR, prompting CAR officials to travel to
Gbadolite and request further reinforcements and
supplies from Mr Bemba.2075 Ultimately, by 15 March
2003, General Bozizs rebels were able to gain
control of Bangui, leading to the final withdrawal of
the MLC from the CAR.2076 The Chamber therefore
finds that General Bozizs rebels had a sufficient
degree of organization in order to enable it to carry
out protracted armed violence, and thus constituted an
organized armed group within the meaning of Article
8(2)(f).
663. In light of the above, the
Chamber finds beyond

reasonable doubt that the armed conflict reached a
sufficient level of intensity for purposes of Articles 8(2)(d)
and 8(2)(f), namely, one exceeding situations of internal
disturbances and tensions, such as riots, isolated and
sporadic acts of violence or other acts of a similar nature.
On the basis of the length of the armed conflict,

namely more than four and a half months, and the
regular hostilities, the Chamber also finds beyond
reasonable doubt that the armed conflict was
protracted within the meaning of Article 8(2)(f).
4. The nexus requirement
664. MLC soldiers committed the underlying acts of

murder, rape, and pillaging against civilians in the
CAR after their arrival in a given area in the context
of the MLCs military campaign against General
Bozizs rebels. The armed conflict therefore played a
major part in the perpetrators ability to commit the
crimes insofar as their presence and their control in
those areas can be attributed to their involvement in
the armed conflict. Moreover, the Chamber notes the
evidence that MLC perpetrators targeted their victims
in order to selfcompensate absent adequate payment
and rations from the MLC organization, and/or to
destabilise, humiliate, or punish suspected rebels,
rebel sympathisers, or those who resisted pillaging
and rape.2082 In the Chambers view, the armed conflict
661. In light of the above, the Chamber finds beyond

reasonable doubt that the armed conflict was between
the CAR governmental authorities, supported by
forces including the MLC, an organized armed group,
on the one hand, and, on the other, the organized
armed group of General Bozizs rebels.
3. Intensity threshold and protracted
character of the conflict
662. As set out above, the armed conflict commenced

with hostilities between General Bozizs rebels and
the forces supporting President Patass. President
Patasss forces responded with a bombing campaign
against General Bozizs rebels,2077 before the phased
deployment of MLC troops to the CAR, in support of
played a major part in the perpetrators decision to

commit the crimes and the manner in which the crimes
were committed.
2073
2078
2074
2079

See Section V.
2075
See Sections V(C)(7) and V(C)(8).
2076
2077

2080
2081
See Sections V(C)(14), V(D)(1), V(D)(7), and V(D)(8).
2082
11
F-326
troops2086 conducted a widespread2087 attack2088

directed against the civilian population in the
CAR,2089 from on or about 26 October 2002 to 15
March 2003,2090 involving the commission of
multiple criminal acts against a large number of
victims.2091 It found substantial grounds to believe
that the attack was conducted pursuant to an
organizational policy, since the MLC soldiers
carried out the criminal acts following the same
pattern.2092 The Pre-Trial Chamber also found
substantial grounds to believe that the MLC soldiers
knew that their individual acts were part of a
broader attack directed against the civilian
population in the CAR.2093
665. Moreover, specifically in relation to the crimes

committed during the attack on Mongoumba, the
Chamber notes that the attack was carried out as
punishment and retribution for the seizure by FACA
forces of pillaged goods the MLC soldiers were taking
by boat back to the DRC.2083 Considering that these
goods were obtained in the course of the MLCs
involvement in the armed conflict, the timing of this
attack on CAR territory, and the evidence of the
perpetrators general motives for appropriating goods
during the armed conflict, in particular, as
compensation, the Chamber finds that the armed conflict
played a major part in the perpetrators decision to
commit the crimes in Mongoumba, their ability to do so,
and the manner in which the crimes were committed.
1. Existence of an attack directed against

any civilian population
666. In light of the above, the
Chamber finds beyond

reasonable doubt that the acts of murder, rape, and
pillaging set out above were committed by the MLC forces
in the context of and in association with the armed conflict
not of an international character that occurred on the
670. For purposes of this element, the Chamber

addresses below the sub-elements set out in Article
7(2)(a), namely whether there was (i) a course of
conduct involving the multiple commission of acts
referred to in [Article 7(1)]; (ii) directed against
any civilian population; and (iii) pursuant to or in
furtherance of a State or organizational policy to
commit such attack. Together, these sub-elements,
if established, demonstrate the existence of an
attack directed against any civilian population.
territory of the CAR between forces supporting

President Patass and General Bozizs rebels from
on or about 26 October 2002 to 15 March 2003.
5. Awareness of factual circumstances that
established the existence of an armed conflict
667. The perpetrators were MLC soldiers fighting

in support of President Patass against General
Bozizs rebels.2084 In these circumstances, the
perpetrators were aware of the factual
circumstances that established the existence of the
armed conflict, namely resort to armed force by and
protracted violence between the forces supporting
President Patass and General Bozizs rebels.2085
6. Conclusion
668. In view of the above, the Chamber finds
a) Course of conduct involving the multiple

commission of acts referred to in Article 7(1)
671. There is consistent and corroborated evidence that

MLC soldiers committed many acts of rape and murder
2094
against civilians during the 2002-2003 CAR Operation.
Moreover, such acts were consistent with evidence
of a modus operandi on the part of MLC soldiers
throughout the 2002-2003 CAR Operation and
throughout the areas of the CAR in which they were
present.2095 The Chamber underlines that the specific
beyond reasonable doubt that the contextual elements of

war crimes are satisfied.
2086
Confirmation Decision, paras 101 to 106.

2088
2089
2090
2091
2092
2093
2094
2095
E. CONTEXTUAL ELEMENTS OF
CRIMES AGAINST HUMANITY
2087

Chamber found that there was sufficient evidence to
establish substantial grounds to believe that MLC
2083

See Sections VI(A), VI(B), and VI(C).
2085
See Section VI(D)(1).
2084
(2016) 1 LAW
12
(2016) 1 LAW
acts addressed in Sections VI(A), VI(B), and VI(C)

constitute only a portion of the total number of acts of
murder and rape MLC soldiers committed, as also
F-327
675. Mr Bemba founded the MLC in 1998. It

numbered in the tens of thousands and had
objectives and goals, as reflected in the MLC
Statute.2098 The MLC had an internal hierarchy,
command structure, rules, and resources.2099 It
governed an important part of the territory in the
DRC.2100 Further, the MLC contingent in the CAR
comprised approximately 1,500 soldiers in total,
was structured into units under the control of
designated commanders, and had the clear goal of
assisting President Patass in defeating General
Bozizs rebels.2101 In light of the above, the
MLC was an organization within the meaning of
Article 7(2)(a).
676. Turning to the matter of policy, the Chamber
addressed below in Section VI(E)(2). In light of the

above, including the identity of the perpetrators and
the circumstances in which the acts were
committed, the Chamber is satisfied that these multiple
acts constituted a course of conduct, and not merely
isolated or random acts.
672. Accordingly, the Chamber finds beyond

reasonable doubt that there was a course of
conduct involving the multiple commission of acts
referred to in [Article 7(1)].
b) Directed against any civilian population
673. The Chamber recalls that
MLC soldiers
committed acts of murder, rape, and pillaging when they
were the only armed force present in a given area, and
after confirming that General Bozizs rebels had
2096
There is no evidence that non-civilians were
departed.
present in the relevant areas at the relevant times.
Moreover, the victims, in particular, those addressed in
Sections VI(A), VI(B), and VI(C), were not taking part in
hostilities at the relevant time. MLC soldiers targeted
does not consider that the policy to attack the civilian

population was formalised. Nonetheless, the Chamber is
satisfied that the existence of a policy to attack the civilian
population is the only reasonable conclusion from a
cumulative consideration of the following factors. First,
the acts of rape and murder were committed consistent
with evidence of a modus operandi employed throughout
the 2002-2003 CAR Operation: after General Bozizs
civilians, without regard for age, gender, or social

status in civilian neighbourhoods and residences, on
temporary MLC bases established in the CAR, or in
isolated locations, such as the bush. Entire families
were victimised; victims included the elderly,
women, children, and men. The acts of murder and
rebels had departed an area, MLC soldiers searched

house-to-house for remaining rebels, raping
civilians, pillaging their belongings, and
occasionally killing those who resisted.2102 Often,
multiple perpetrators were involved in the same
incidents of murder, rape, or pillaging.2103 This
modus operandi was apparent from the earliest days
of the 2002-2003 CAR Operation and continued
consistently throughout it.
rape were regularly committed together with, or during

the course of, the commission of acts of pillaging against
2097
the civilian population.
In addition to the multiple
commission of acts specified in Article 7(1), the

Chamber finds that the acts of pillaging committed
against civilians are also indicative of the attack
being directed against the civilian population.
674. In light of the above, the Chamber finds beyond
677. Second,
MLC soldiers committed the underlying

acts repeatedly during a four and a half month period and
over a broad geographic area, encompassing each of
the locations that fell under their control. The

Chamber considers that this recurrent pattern of
violence, carried out by MLC forces, is indicative
of a policy.
reasonable doubt that the civilian population was the

primary, as opposed to incidental, target of the attack, and
in turn, that the attack was directed against the civilian
population in the CAR.
2098
c) Pursuant to or in furtherance of a State or

organizational policy to commit such attack
See Section V(A), para. 382.

See Section V(A).
2100
See Section V(A), para. 382.
2101
2102
2103
See Sections V(C)(3), V(C)(4), V(C)(5), V(C)(9), V(C)
(11), and V(C)(14).
2099
2096

(11), and V(C)(14), para. 564.
2097
(11), and V(C)(14), paras 563 to 564.
13
F-328
678. Third, there is
the consistent and corroborated evidence of acts of

rape, murder, and pillaging committed in PK12,
where the MLC troops,including MLC commanders
like Colonel Moustapha, were based for a long
period of time during 2002-2003 CAR Operation.2112
681. Fifth, the Chamber recalls that, in the final
weeks of the conflict, MLC soldiers waged a
punitive attack on Mongoumba, where only
civilians were present at the relevant time. This
attack, carried out under Colonel Moustaphas
command and with Mr Bembas knowledge, was
conducted in retaliation for the seizure by the
FACA forces of allegedly pillaged goods that MLC
soldiers were transporting back to the DRC.2113
682. Sixth, the Chamber recalls its finding that
MLC troops in the CAR received orders to exercise
vigilance against civilians in the CAR, including the
use of force towards them.2114 The Chamber finds
this to be indicative that, at least, the commanders
on the ground were aware of and authorised such
treatment.
683. Seventh, the Chamber notes its findings
regarding apparent inadequacies in the Code of
Conduct and the inconsistent training of MLC
troops.2115
684. Finally, the Chamber notes its finding that
senior MLC commanders, including Mr Bemba,
were aware of the crimes being committed by the
MLC troops and that Mr Bemba failed to take all
necessary and reasonable measures to prevent or
repress the crimes, or to submit the matter to the
competent authorities.2116 Similarly, there is no
evidence that any other MLC leader took measures
other than those addressed in Sections V(D) and
VI(F)(4) to prevent or repress the crimes.
685. The Chamber considers that, in light of the
above factors, taken together, any suggestion that
the crimes were the result of an uncoordinated and
spontaneous decision of the perpetrators, acting in
isolation, is not a reasonable conclusion to be drawn
from the evidence. In the Chambers view, in such
consistent evidence of the

2104
perpetrators general motives,
which the Chamber
considers indicative of the attack being, at least,

condoned by the MLC hierarchy. The MLC troops in
the CAR did not receive adequate financial compensation
and, in turn, self-compensated through acts of pillaging
2105
and rape.
Moreover, MLC soldiers committed acts of
murder and rape in order to punish civilians who were
suspected rebels or rebel sympathisers, or for MLC losses,
2106
and against those who resisted acts of pillaging.
679. Fourth, the Chamber has considered the scale

on which, and degree of organization with which,
the acts of pillaging during the course of which
many of the acts of rapes and murder were
committed were carried out, as well as the level of
knowledge and involvement of the MLC hierarchy.
In PK12, for example, where the MLC maintained a
presence for most of the 2002-2003 CAR
Operation, pillaged goods were stored at MLC
bases.2107 Further, pillaged goods were regularly
transported back to the DRC, in particular, through
Zongo, for distribution or sale.2108 Moreover, there
is consistent evidence that senior MLC commanders in the
2109
CAR benefited from and condoned acts of pillaging.
680. The Chamber notes similar indications relating
to acts of murder and rape, which were consistent
with the pattern of violence and modus operandi
addressed above. In particular, such acts were
committed in areas where MLC commanders and
their troops were based throughout the 2002-2003
CAR Operation. For example, at the end of October
or beginning of November 2002, 22 MLC soldiers
raped eight women on a ferry docked at the Port
Beach naval base.2110 It was from this location,
which was the initial military base of the MLC
upon arrival in the CAR, that MLC soldiers were
ferried to and from the DRC throughout the 20022003 CAR Operation.2111 Further examples include
2104

2106
2107
2108
See, inter alia, Sections V(C)(14), para. 566, V(D)(5),
and V(D)(6).
2109
See, inter alia, Sections V(C) and V(D)(2).
2110
See Section V(C)(3)(d).
2111
See Sections V(B)(2)(a) and V(C)(2).
2105
(2016) 1 LAW
2112

2114
2115
See Section V(A)(2), paras 391 to 393.
2116
See Section VI(F)(4).
2113
14
(2016) 1 LAW
F-329
attack against the civilian population in the CAR in the

context of the 2002-2003 CAR Operation was
widespread.
circumstances, the fact that Mr Bemba, on occasion,

warned the MLC troops against such
misconduct,2117 although consistent with the
MLC not having formalised the policy, does not
undermine this finding. The Chamber is therefore
satisfied that the attack against the civilian
population by MLC forces reflected an
organizational policy. In the circumstances, the
Chamber is further satisfied that the failure on the
part of Mr Bemba and other senior MLC
commanders to take action was deliberately aimed
at encouraging the attack. The Chamber, in fact,
finds that the MLC, in particular through the actions
of its commanders on the ground as recounted
above, actively encouraged the attack.
686. In addition, and considering, in particular, that
the perpetrators (i) acted consistently with evidence
of motives and a modus operandi; (ii) as discussed
further below, were aware of the attack; and (iii)
were MLC soldiers acting on behalf of the MLC
organization at the relevant time, the Chamber is
also satisfied that there is a sufficient link between
the course of conduct and the organizational policy.
687. The Chamber therefore finds beyond reasonable
3. Acts committed as part of the attack (nexus)
690. Emphasising that the perpetrators acts were

consistent with evidence of general motives and a
modus operandi, and recalling its findings
concerning the link between the course of
conduct and the organizational policy,2119 the
Chamber finds beyond reasonable doubt that the acts
of murder and rape set out above were committed by
the MLC soldiers as part of a widespread attack
against the civilian population in the CAR in the context
of the 2002-2003 CAR Operation.
4. Knowledge of the attack
691. The attack, lasting four and half months, was

widespread, committed over a large geographical
area, and resulted in a large number of victims.
The areas affected included those in which the
MLC contingent in the CAR was, often
exclusively, present. The perpetrators acts were
consistent with evidence of general motives and a modus
operandi, and were linked to the organizational policy to
commit an attack against the civilian population. The
doubt that the attack was committed pursuant to or in

furtherance of an organizational policy.
attack drew the attention of both local and

international media. In these circumstances, the
2. Widespread nature of the attack
688. The Chamber notes the consistent and

corroborated evidence that, during the 2002-2003
CAR Operation, MLC soldiers committed many
acts of rape, murder, and pillaging against
civilians over a large geographical area, including
in and around Bangui, PK12, PK22, Bozoum,
Damara, Sibut, Bossangoa, Bossembl, Dkoa,
Kaga Bandoro, Bossemptele, Boali, Yaloke, and
Mongoumba.2118 On this basis, as already noted
above in Section VI(E)(1)(a), the Chamber is
perpetrators had knowledge of the attack, and knew

that their conduct was, or intended their conduct to be,
part of the widespread attack directed against the
civilian population.
5. CONCLUSION
692. In view of the above, the Chamber finds

beyond reasonable doubt that the contextual elements of
crimes against humanity are satisfied.
F. INDIVIDUAL CRIMINAL RESPONSIBILITY
satisfied that the specific underlying acts addressed in

Sections VI(A), VI(B), and VI(C) are only a portion of
the total number of crimes committed by the MLC forces
in the course of the 2002-2003 CAR Operation.
689. Accordingly, in light of the number of

victims and the geographical scope of the attack,
the Chamber finds beyond reasonable doubt that the

Chamber found that there was sufficient evidence
to establish substantial grounds to believe that,
from on or about 26 October 2002 to 15 March
2003, (i) MLC forces committed crimes within
the jurisdiction of the Court;2120 (ii) Mr Bemba
2117
2119
2118
See Sections V(D)(1) and V(D)(4).

2120
15
See Section VI(E)(1)(c), para. 686.

Confirmation Decision, paras 72 and 202.
F-330
evidence, taken together, of the MLC soldiers

uniforms, language, modus operandi, motives,
and, often exclusive, presence in a given area at a
given time.2128 Many of the witnesses and victims
who identified MLC soldiers as perpetrators had
repeated and ongoing interactions with the MLC
and other armed forces, and were therefore able
to distinguish between them.2129 In light of the
above, the fact that other forces may have
committed crimes during the relevant time period
or had some characteristics in common with the
MLC
soldiers
cannot,
without
further
specification, undermine the Chambers findings
beyond reasonable doubt that the perpetrators of
the crimes charged were MLC soldiers.2130
effectively acted as a military commander and

had effective authority and control over the MLC
troops in the CAR;2121 (iii) Mr Bemba knew that
MLC troops were committing or about to commit
the crimes against humanity of murder and rape
and the war crimes of murder, rape, and pillaging
in the CAR;2122 (iv) Mr Bemba failed to take all
necessary and reasonable measures within his
power to prevent or repress the commission of the
crimes by MLC troops in the CAR;2123 and (v)
Mr Bembas failure to fulfil his duties to prevent
crimes increased the risk of their commission by
the MLC troops in the CAR.2124
1. MLC forces committed crimes within
the jurisdiction of the Court
2. The Accused was a person effectively acting

as a military commander and had effective
authority and control over the MLC forces
that committed the crimes
694. The Chamber has found beyond reasonable

doubt that MLC soldiers committed crimes within the
jurisdiction of the Court namely, the war crime and
crime against humanity of murder, the war crime and
crime against humanity of rape, and the war crime of
pillaging between on or about 26 October 2002
696. As noted in Section III(H), there is an overlap

between the factors relevant to assessing (i) the status of
someone effectively acting as a military commander,
and (ii) a persons effective authority and control. The
and 15 March 2003 on the territory of the CAR.2125

695. The Chamber notes that, in making findings
on the identity of the perpetrators, it took into
account
the
Defence
submissions2126and
2127
relating to crimes allegedly
evidence
committed by other forces in the CAR, in
particular, by other loyalist forces and General
Bozizs rebels, some of whom spoke Lingala or
wore uniforms similar to those worn by the MLC
contingent in the CAR. The Chamber emphasises
that its conclusions as to the perpetrators
identities were reached based on a cumulative
assessment of relevant identification criteria,
including the consistent and corroborated
Chamber therefore addresses its findings on both

of those elements in this section. In doing so, the
Chamber first considers Mr Bembas position in the
MLC generally, and then turns to considerations
specific to the MLC contingent in the CAR.
697.
Mr Bemba was the President of the MLC and

Commander-in-Chief of the ALC throughout the period
relevant to the charges, and held the rank of Divisional
2131
General.
The Chamber has found that, in these
capacities, Mr Bemba had broad formal powers, ultimate
decision-making authority, and powers of appointment,
2132
promotion, and dismissal.
Mr Bemba additionally
2128

2130
In this regard, the Chamber notes ICTY jurisprudence
that evidence of crimes committed by other parties to a
conflict is irrelevant unless a party demonstrates how it
would prove or disprove allegations against an accused.
See ICTY, Kunarac et al. Appeal Judgment, page 88,
citing ICTY, Kupreki et al., Decision on Evidence of
the Good Character of the Accused and the Defence of
Tu Quoque.
2131
2132
See Section V(A).
2129
2121

2123
Confirmation Decision, paras 426 and 490.
2124
2125
2126
Defence Closing Brief, inter alia, paras 259 to 262, 314
to 315, and 521 to 593.
2127
See, inter alia, the relevant testimony provided by P6,
P31, P38, D2, D3, D4, D6, D7, D19, D13, D23, D26,
D29, D30, D36, D54, D56, D57, D64, and D65.
2122
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16
(2016) 1 LAW
controlled the MLCs funding, had direct lines of

communication to commanders in the field, had wellestablished reporting systems, received operational and
technical advice from the MLC General Staff, and both
could, and did, issue operational orders.2133
Furthermore, the Chamber has found that Mr Bemba
had disciplinary powers over MLC members, including
authorities throughout the 2002-2003 CAR

Operation.2139 Indeed, the Chamber considers that
such liaison is logical in a situation where a
contingent of foreign forces is unfamiliar with the
terrain and enemy. While the exact level of
assistance and whether it persisted throughout the
entirety of the 2002-2003 CAR Operation is
unclear, the Chamber considers that it is
reasonable to conclude that it was a regular
feature of the operations. However, the Chamber
recalls that the MLC troops were not
the power to initiate inquiries and establish courtsmartial, and had the ability to send or withdraw troops
2134
from the CAR.
These findings establish that Mr
Bemba effectively acted as a military commander and had
effective authority and control over the MLC, including
ALC troops, during the time period of the charges.
2140
resubordinated
to the CAR military hierarchy,
insofar as this would imply that Mr Bembas authority
2141
over the MLC contingent in the CAR was displaced.
2135
698. As noted by the Defence,
it is, however,
necessary for it to be established that this effective control
extended over the specific MLC forces operating in the
CAR. In this regard, the Chamber considers that it is
important to distinguish the military principle of unity of
2136
command from the assessment of effective control.
700. From the entirety of the evidentiary record, the

Chamber is satisfied that Mr Bemba exercised effective
control over the MLC contingent in the CAR at all relevant
times of the 2002-2003 CAR Operation. Mr Bemba
The principle of unity of command or singleness

of command suggests that, [f]or the proper
functioning of an army, there can be only one
individual in command of any particular unit at one
time.2137 However, the determination of whether a
person has effective authority and control rests on
that persons material power to prevent or repress
the commission of crimes or to submit the matter to
a competent authority. This need not be an
exclusive power and multiple superiors can be held
concurrently
2138
actions.
responsible
for
their
F-331
ordered the initial deployment of the MLC troops to

the CAR, including, in consultation with the
General Staff, selecting the units and commanders
to be deployed.2142 Following deployment, Mr
Bemba maintained regular, direct contact with
senior commanders in the field on the state of
operations, and additionally received numerous
detailed operations and intelligence reports.2143
Further, the MLC hierarchy in the DRC, controlled
by Mr Bemba, continued to provide logistical
support and equipment to the MLC troops in the
CAR.2144 The Chamber recalls in this regard its
factual findings regarding the MLC contingent in
the CAR, including that the MLC troops, with the small
subordinates
699. The Chamber notes that the MLC forces,

including the MLC contingent in the CAR,
communicated and co-operated with the CAR
number of CAR troops frequently accompanying them,

mainly operated independently of other armed forces in
2145
and that throughout the 2002-2003 CAR
the field
Operation command remained with the MLC
2146
hierarchy.
Whether or not Mr Bemba issued
2133
See Section V(A).

See Sections V(A)(4), V(A)(5), V(B)(2)(c), V(B)(2)(d),
V(C)(1), and V(C)(12).
2135
See Defence Closing Brief, paras 594 to 607. See also
Defence Closing Brief, para. 677, submitting that the
Prosecution fails to distinguish between Mr Bembas
powers in the DRC and in the CAR, bases its
submissions almost entirely on events and practices in
the DRC, and ignores the command structure over the
contingent of MLC troops deployed to the CAR.
2136
See, similarly, ICTY, Popovi et al. Trial Judgment,
paras 2023, and 2025 to 2026.
2137
ICTY, Popovi et al. Trial Judgment, para. 2025.
2138
See Section III(H)(3), para. 185.
2134
direct operational orders to the MLC forces in the

2139

See, for example, Defence Closing Brief, para. 628. See
also Section III(H)(3), para. 185.
2141
2142
2143
See Section V(B)(2)(b).
2144
See Section V(B)(2)(a).
2145
2146
See Section V(B)(2)(c).
2140
17
F-332
finding that Mr Bemba at any time during the 2002-2003

CAR Operation lost the material power to discipline or
punish members of the MLC contingent in the CAR.
CAR is not determinative, but the Chamber

nonetheless notes its finding that Mr Bemba did
issue such orders, which were relayed and
implemented by Colonel Moustapha.2147
701. The Chamber recalls that the MLCs General
Staff played a significant role in (i) implementing
Mr Bembas orders, (ii) providing Mr Bemba with
military advice and suggestions, (iii) reporting to
Mr Bemba on the progress of operations, and
(iv) providing him with military intelligence.2148
However, the Chamber does not find this to
diminish Mr Bembas ultimate authority over the
military operations.2149 Indeed, the Chamber notes
that Mr Bemba, at times, bypassed the MLCs General
704. Finally, the Chamber recalls that, as evidenced

both by Mr Bembas discussions with General
Ciss in November 2002 and in the final withdrawal
in March 2003, Mr Bemba retained the power and
authority to order the withdrawal of the MLC troops
from the CAR. Once Mr Bemba actually ordered
the withdrawal of the troops, that decision was
complied with.2155
705. In light of the above and the evidence as a
whole, the Chamber finds beyond reasonable doubt
that Mr Bemba was both a person effectively acting as a
military commander and had effective authority and
control over the contingent of MLC troops in the CAR
throughout the 2002-2003 CAR Operation.
Staff and contacted commanders in the field directly to

2150
issue instructions or orders and receive reports.
702. Moreover, the Chamber notes that, rather than

referring all matters to President Patass and the
CAR authorities, as would be consistent with a
complete resubordination of the forces, Mr Bemba
3. The Accused knew that the MLC forces were

committing or about to commit the crimes
706. Throughout the 2002-2003 CAR Operation,

Mr Bemba was predominantly based in
Gbadolite, DRC, where the MLC was also
headquartered, and was therefore remote from the
operations on the ground. Nonetheless, Mr
Bemba was the MLC President, Commander-inChief of the ALC, and the organizations
figurehead, as well as the source of its funding,
goals, and aims.2156 He held broad formal
functions and powers under the MLC Statute,
including over internal organization and policy in
the military and political wings of the MLC.2157
Indeed, in practice, Mr Bemba had ultimate
authority over military operations and strategy,
promotions and assignments, logistics, finances,
and discipline.2158
707. Radios, satellite phones, Thurayas, mobile
telephones, and other communications equipment
enabled MLC commanders, in particular, Colonel
Moustapha, and other individuals linked to the
MLC in the CAR to communicate directly with Mr
Bemba, the MLC Chief of General Staff, and the
continued to represent the MLC forces in the CAR in

external matters, including, for example, in
discussions with the UN representative in the CAR,

General Ciss, and in responding to media, and
other reports, of alleged crimes.2151
703. Further, significantly, the Chamber has found
that Mr Bemba retained primary disciplinary authority
over the MLC troops in the CAR, including through the
establishment of commissions of inquiry, powers of

arrest, and the convening of courts-martial.2152 As
considered below in the context of the measures
taken by Mr Bemba, such powers were exercised on
at least four occasions at different times during the
relevant period.2153 Further, the MLC Code of
Conduct remained applicable to the MLC
contingent in the CAR throughout the 2002-2003
CAR Operation.2154 Regardless of the extent to
which it was actually exercised, there is no basis for
2147
See Sections V(B)(2)(b) and V(B)(2)(c).

2149
See Sections V(A)(4) and V(B)(2)(c).
2150
See Section V(B)(2)(c).
2151
See Sections V(D)(1), V(D)(3), and V(D)(7).
2152
See Sections V(A)(5) and V(B)(2)(d).
2153
See Section VI(F)(4).
2154
See Section V(A)(2).
2148
(2016) 1 LAW
2155

2157
2158
2156
18
(2016) 1 LAW
MLC headquarters in Gbadolite.2159 Mr Bemba also

visited the CAR on a number of occasions.2160
Through such channels of communication and
throughout the 2002-2003 CAR Operation, there
was regular and direct communication between Mr
Bemba and Colonel Moustapha, with Colonel
Moustapha reporting the status of operations and
the situation on the ground.2161 Other MLC officials
in the CAR were also in direct contact with Mr
Bemba by radio or Thuraya.2162 In addition to direct
communication with Mr Bemba, Colonel
Moustapha and other commanders in the CAR were
in direct contact with the MLC Chief of General
Staff, who reported information he received to Mr
Bemba.2163 Likewise, messages sent by the MLC
commanders in the CAR through the MLC
transmissions centre in Gbadolite were recorded in
logbooks and then taken to Mr Bemba.2164
708. Military and civilian intelligence services also
provided Mr Bemba either directly or through the
General Staff with information on the combat
situation, troop positions, politics, and allegations
of crimes.2165 Significantly, such intelligence
reports
referred
to
various
acts
by
Banyamulengus and MLC troops, including
theft, pillaging, rape, the killing of civilians,
harassment of persons, and the transportation of
looted goods, including trucks for Colonel
Moustapha, back to the DRC through Zongo and
Libengue.2166
709. From the early days of the 2002-2003 CAR
Operation, Mr Bemba followed and discussed with
senior MLC officials international media reports,
which often reported his personal reactions to
allegations of crimes by MLC soldiers.2167 Over the
course of the 2002-2003 CAR Operation, local and
F-333
international media and other sources reported

allegations of many acts of rape, pillaging and
murder by MLC soldiers in the CAR, including in
and around Bangui, PK12, PK22, Bozoum,
Damara, Sibut, Bossangoa, Bossembl, Dkoa,
Kaga Bandoro, Bossemptele, Boali, Yaloke, and
Mongoumba.2168
710. The channels of communication and sources
reporting crimes by MLC s oldiers set out above
corroborate the Chambers factual findings, as
recalled below, about Mr Bembas direct knowledge
of crimes by MLC soldiers at various, specific
stages throughout the 2002-2003 CAR Operation.
711. For example, in the initial days of the 20022003 CAR Operation, Mr Bemba and senior MLC
officials discussed media allegations of crimes
committed by MLC soldiers in the CAR, and, in
response, Mr Bemba established the Mondonga
Inquiry to investigate the allegations.2169 In
November 2002, after hearing reports of crimes by
MLC soldiers in the CAR, Mr Bemba decided to
travel to the CAR, met with the UN representative
in the CAR, General Ciss, and President Patass,
and addressed MLC troops and civilians at
PK12.2170 During his speech at PK12, Mr Bemba
referred to the MLC troops misbehaviour,
stealing, and brutalis[ing] the civilian
population in the CAR.2171 After the speech, Mr
Bembas convoy passed a noisy demonstration of
more than one hundred civilians, standing by the
roadside, with posters and placards.2172
712. On 27 November 2002, Colonel Mondonga
forwarded the Bomengo case file to the MLC Chief
of General Staff, copying Mr Bemba, who reviewed
it.2173 It contained detailed information on acts of
pillaging and rape attributed to MLC soldiers in the
initial days of the 2002-2003 CAR Operation, and
resulted in the establishment of the Gbadolite courtmartial. During the publicly broadcast trial at
the Gbadolite court-martial, which commenced on
2159
See Sections V(A)(3) and V(B)(2)(b).

See Sections V(B)(2)(b), V(D)(3), and V(D)(4).
2161
2162
2163
2164
2165
See Section V(B)(2)(b), para. 425.
2166
See Section V(B)(2)(b), para. 425.
2167
See, inter alia, Sections V(D)(1), para. 576, and V(D)
(2), para. 582.
2160
2168
See Sections V(C)(14), para. 563, and V(D)(1).

See Section V(D)(2).
2170
2171
2172
2173
2169
19
F-334
Colonel Moustapha the day before and the day of the

2179
attack.
The Chamber considers this to be
indicative that Mr Bemba knew that his forces would
commit crimes against civilians in the course of the
attack, a fact confirmed afterwards, for example,
5 December 2002, Mr Bemba continued to receive

further information, including directly through
members of the court-martial, of pillaging by MLC
soldiers.2174
713. In light of the allegations of pillaging made
during the trial at the Gbadolite court-martial, as
well as additional media allegations of crimes of
pillaging and rape by MLC soldiers, Mr Bemba
established the Zongo Commission. The Zongo
Commissions final report to the MLC Secretary
General, copying Mr Bemba, was unable to
establish that the pillaging was attributable to MLC
soldiers. However, it did include further
information indicating that pillaging had been
committed by MLC soldiers in the CAR and that
pillaged goods crossed from the CAR to the DRC
near Imese and Dongo.2175
714. In January 2003, in correspondence with
General Ciss, Mr Bemba noted some allegations
concerning crimes by MLC soldiers in the CAR.2176
Further, the FIDH Report, released on 13 February
2003 and concerning an investigative mission in
Bangui between 25 November and 1 December
2002, included detailed accounts of alleged acts of
murder, rape, and pillaging by MLC soldiers
against civilians in, inter alia, Bangui, PK12, and
PK22. In a letter to the FIDH President, dated 20
February 2003, Mr Bemba noted the FIDH
Report.2177
715. At the end of February 2003, Mr Bemba
established the Sibut Mission in response to
continued media reports of MLC abuses against the
civilian population in Sibut and Bozoum, including
murder. Those interviewed during the Sibut
Mission largely refuted allegations of crimes by
MLC soldiers, but some also claimed that the MLC
soldiers committed abuses against civilians in Sibut,
in particular, pillaging.2178
716. Finally, in March 2003, Mr Bemba knew of the
in media reports.
717. In light of the above factors in particular, the
notoriety of the crimes, Mr Bembas position, the
available channels of communication, the regular
contact between Mr Bemba and the MLC officials in
the CAR, general sources of information of crimes by
MLC soldiers (including media, NGO, and MLC
intelligence reports), and Mr Bembas direct
knowledge of allegations of murder, rape, and
pillaging by MLC soldiers at specific times
throughout the 2002-2003 CAR Operation and the
evidence as a whole, the Chamber finds beyond
reasonable doubt that, throughout the 2002-2003 CAR
Operation, Mr Bemba knew that the MLC forces under his
effective authority and control were committing or about
to commit the crimes against humanity of murder and
rape, and the war crimes of murder, rape, and pillaging.
718. Having so found, the
Chamber does not consider

that re-characterisation of the charges pursuant to Regulation
55 to include the should have known mental element is
2180
warranted.
4. The Accused failed to take all necessary and

reasonable measures to prevent or repress the
commission of the crimes or to submit the matter to
competent authorities for investigation and
prosecution
719. In reaction to allegations of crimes committed by

MLC soldiers, Mr Bemba took a few measures over the
course of the 2002-2003 CAR Operation, including the
Mondonga Inquiry; a November 2002 visit to the
CAR, during which Mr Bemba met with the UN
representative in the CAR, General Ciss, and
President Patass; a speech given at PK12 in
November 2002; the trial of Lieutenant Willy
Bomengo and others at the Gbadolite court-martial;
the Zongo Commission; correspondence with General
Ciss; correspondence in response to the FIDH
Report; and the Sibut Mission.
punitive attack on Mongoumba, where only civilians

were present at the time, being in constant contact with
720. The Chamber considers it appropriate to first

recall the indications that all of these measures were
limited in mandate, execution, and/or results. For
2174

2175
2176
2177
2178
(2016) 1 LAW
2179
2180
20

See Sections I(D) and II(C).
(2016) 1 LAW
example, the information contained in the Bomengo

case file, which was the product of the Mondonga
Inquiry, indicates that investigators did not pursue
various relevant leads, in particular, the responsibility
of commanders, alleged perpetrators among Colonel
Moustaphas Poudrier Battalion and Colonel
Moustapha himself, and reports of rape. No
explanation is given for these omissions. Nor is any
justification apparent for procedural irregularities,
such as the alleged lack of any guidelines and the fact
that suspect interviews were conducted in the middle
of the night.2181 As a result of the Mondonga Inquiry,
seven low-ranking soldiers were tried before a courtmartial in Gbadolite solely on charges of pillaging
minor goods and small sums of money.2182
F-335
mattresses were items frequently pillaged by MLC

soldiers in the CAR. Finally, there is no evidence that
any action, including by Mr Bemba, was taken to
pursue leads uncovered during the Zongo
Commissions investigations, in particular, in relation
to pillaging in the CAR and the crossing of pillaged
items to the DRC near Imese and Dongo.2186
723. In response to further allegations of crimes by

MLC soldiers, Mr Bemba sent a letter on 4 January
2003 to General Ciss, claiming that appropriate
remedial and preventive measures had been taken, and
requesting assistance in investigating allegations of
crimes by MLC soldiers in the CAR. General Ciss
responded that he would participate in any initiative
relating to an investigation. However, there is no
evidence that Mr Bemba ever took General Ciss up
on this offer of assistance, or otherwise took any
concrete measures as a result of or in relation to his
correspondence with General Ciss.2187
721. In relation to Mr Bembas visit to the CAR in

November 2002, there is no evidence that he took any
concrete measures in response to allegations of crimes
by MLC soldiers during or as a result of meetings
with General Ciss or President Patass.2183 Likewise,
there is no evidence that Mr Bemba followed up on or
enforced general warnings he publicly made to his
troops against abuse of the civilian population, for
example, during his speech at PK122184 or as reported
in the media at other points during the 2002-2003
CAR Operation.2185
724. In response to the FIDH report, which made

detailed allegations of murder, rape, and pillaging by
MLC soldiers, and analysed Mr Bembas criminal
responsibility for such crimes, Mr Bemba, after
seeking legal advice, sent a letter to the FIDH
President, Mr Kaba, mirroring the content and tone of
the letter sent to General Ciss. Despite the
representations he made, there is no evidence that Mr
Bemba took any concrete measures in conjunction
with or in light of his correspondence with Mr
Kaba.2188
722. Further, the Zongo Commission which Mr

Bemba established in light of public allegations of
murder, rape, and pillaging by MLC soldiers was
mandated to address only the question of whether
pillaged goods from the CAR were entering the DRC
through Zongo. It was also comprised solely of MLC
officials, and based its report only on interviews with
eight Zongo inhabitants who exercised public
functions or directly worked for the MLC. Despite its
ability to summon soldiers before it, the Zongo
Commissions report does not refer to the interviews
of any soldiers. There is also evidence indicating that
the definition of pillaging applied by the Zongo
Commission was limited and did not include, for
example, the stealing of animals or mattresses. In this
regard, the Chamber notes that livestock and
725. At the end of February 2003, Mr Bemba

established the Sibut Mission, which was not an
investigation, following media allegations of crimes
by MLC soldiers committed in Bozoum and Sibut.
Those on the Sibut Mission were met upon landing
and then taken directly to a non-central location in
town, namely, the home of one of the interviewees.
The reporters only spoke to a narrow selection of
interviewees, a number of whom exercised public
functions and were linked to President Patasss
regime. The interviews were conducted in a coercive
atmosphere with armed MLC soldiers moving among
the interviewees and nearby population.2189
2181

2183
2184
2185
2182
2186

2188
2189
2187
21
F-336
726. In summary, despite consistent information as

reported internally within the MLC organization and
externally in the media of acts of murder, rape, and
729. In addition to or instead of the insufficient

measures Mr Bemba did take, and in light of his
extensive material ability to prevent and repress the
crimes, Mr Bemba could have, inter alia, (i) ensured
that the MLC troops in the CAR were properly trained
in the rules of international humanitarian law, and
adequately supervised during the 2002-2003 CAR
Operation; (ii) initiated genuine and full investigations
into the commission of crimes, and properly tried and
punished any soldiers alleged of having committed
crimes; (iii) issued further and clear orders to the
commanders of the troops in the CAR to prevent the
commission of crimes; (iv) altered the deployment of
the troops, for example, to minimize contact with
civilian populations; (v) removed, replaced, or
dismissed officers and soldiers found to have
committed or condoned any crimes in the CAR;
and/or (vi) shared relevant information with the CAR
authorities or others and supported them in any efforts
to investigate criminal allegations.
730. Further, the Chamber emphasises that one key
measure at Mr Bembas disposal was withdrawal of
the MLC troops from the CAR. There is evidence that
he first acknowledged, in November 2002, shortly
after the arrival of the MLC troops in the CAR, that he
was considering and had the ability to withdraw the
troops.2192 However, it was not until March 2003 that
the MLC troops were withdrawn on Mr Bembas
order.2193 Evidence indicates that Mr Bembas
motivations in withdrawing the troops, just as the
investigative and other measures he took during the
2002-2003 CAR Operation, were only political and
directly related to the negotiation of the Sun City
agreements.2194
731. In light of the wide range of available
measures at his disposal, the Chamber finds that the
pillaging attributed to MLC soldiers throughout the 20022003 CAR Operation, Mr Bembas reactions were limited
to general, public warnings to his troops not to mistreat the
civilian population, the creation of two investigative
commissions, the trial of seven low-ranking soldiers on
charges of pillaging of goods of limited value, and the Sibut
Mission, which was not an investigation. The mandates of
the two investigative commissions were limited to the

allegations of pillaging committed in the initial days
of the 2002-2003 CAR Operation in Bangui and
pillaged goods being transported via Zongo.
727. Further to noting indications that the measures

set out above were not properly and sincerely
executed, the Chamber finds that the measures Mr
Bemba took were a grossly inadequate response to the
consistent information of widespread crimes committed by
MLC soldiers in the CAR of which Mr Bemba had
knowledge. The inadequacy of the minimal measures
Mr Bemba took is aggravated by indications, as set

out above, that they were not genuine, the manner in
which such measures were executed, and the fact that
only public allegations of crimes by MLC soldiers
prompted any reaction, and then only to limited
extent. There is no evidence that Mr Bemba took any
measures in response to information transmitted
internally within the MLC of crimes by MLC soldiers
from, for example, the MLC intelligence services or
the leads uncovered during the Mondonga Inquiry,
Zongo Commission, or Sibut Mission.
728. The
Chamber also notes the corroborated evidence

that above measures were primarily motivated by Mr
Bembas desire to counter public allegations and
2190
rehabilitate the public image of the MLC.
The fact
that Mr Bemba used the above minimal and

inadequate measures as a basis to address all
allegations of crimes against the MLC,2191 taken
with the evidence as to his motives behind ordering
such measures, illustrates that a key intention
behind the measures Mr Bemba took was to protect
the image of the MLC. His primary intention was
not to genuinely take all necessary and reasonable
measures within his material ability to prevent or
repress the commission of crimes, as was his duty.
2190
2191
measures Mr Bemba did take patently fell short of all

necessary and reasonable measures to prevent and repress
the commission of crimes within his material ability.
732. The Defence argues that the Prosecution

assertions that Mr Bemba could have conducted
investigations must be viewed against the difficulties
encountered by the CAR authorities in subsequent
investigations when General Boziz took power.2195
However, the difficulties faced by members of the
2192
See Sections V(C)(12), V(D)(1), and V(D)(3).

2194
2195
Defence Closing Brief, paras 924 to 929.
2193
See Section V(D).

See, for example, Sections V(D)(7) and V(D)(8).
(2016) 1 LAW
22
(2016) 1 LAW
CAR national justice system in conducting a criminal

investigation in the CAR shortly after an armed
conflict, particularly as such investigations were
hindered by political considerations,2196 are irrelevant.
Similarly, the Defences purported comparison
between the Prosecutions difficulties in conducting
its investigations in 2006 and Mr Bembas abilities at
the time of the 2002-2003 CAR Operation is
unpersuasive.2197 In this regard, the Chamber
emphasises that Mr Bemba could and did create
commissions and missions in reaction to allegations of
crimes, two of which operated on CAR territory at the
height of the 2002-2003 CAR Operation.
733. Finally, the Chamber notes that, as he had
ultimate disciplinary authority over the MLC
contingent in the CAR,2198 Mr Bemba was the
competent authority to investigate and prosecute the
crimes. In such circumstances, where he failed to
empower other MLC officials to fully and adequately
investigate and prosecute allegations of crimes, he
cannot be said to have submitted the matter to the
competent authorities for investigation and
prosecution. He also made no effort to refer the matter
to the CAR authorities, or cooperate with international
efforts to investigate the crimes, despite assertions that
he would do so, in particular, in correspondence with
General Ciss and Mr Kaba.2199 The Chamber finds
that submitting the matter to competent authorities
was neither the intent, nor the effect, of Mr Bembas
letter to General Ciss, which, at most, constituted a
request for information.
F-337
735. As the Chamber has found above, Mr Bemba,

throughout the 2002-2003 CAR Operation, (i) had
effective authority and control over the MLC troops

in the CAR; (ii) knew that the forces under his
authority and control were committing or about to
commit the crimes of murder, rape, and pillaging;
and (iii) failed to take all necessary and reasonable
measures within his power to prevent and repress
the commission of the crimes, and submit the
matter to the competent authorities.
736. International humanitarian law contains a clear
duty for commanders to ensure that members of
armed forces are aware of their obligations under
the Geneva Conventions and Additional Protocol
I.2200 This duty is expressly stated to be for the
purpose of preventing and suppressing breaches of
those treaties. In this regard, the Chamber recalls its
finding that the training regime employed by the
ALC was inconsistent, resulting in some soldiers
receiving no or minimal training. Further, the Code
of Conduct used during training did not, in
particular, include a prohibition on pillaging.
Dissemination of the Code of Conduct was also
uneven and some MLC troops, including at least
one highranking officer, who participated in the
2002-2003 CAR Operation, either did not receive
training in or were not familiar with the Code of
Conduct.2201
737. Despite Mr Bembas effective authority and
control over the ALC, including authority over
disciplinary matters,2202 he failed to take any measures
to remedy such deficiencies in training, either prior to
deployment of the troops or in response to the
consistent reports of crimes occurring from the
earliest days of the 2002-2003 CAR Operation.
Additionally, the Chamber incorporates by reference
its findings regarding Mr Bembas failure to take all
necessary and reasonable measures within his power
to prevent and repress the commission of the crimes,
and submit the matter to the competent authorities.2203
Such failures further demonstrate that Mr Bemba
failed to exercise control properly over the forces
deployed to the CAR.
738. The Chamber emphasises that, as demonstrated
by the measures Mr Bemba did take in response to
2196
2200
2197
2201
734. Accordingly, in light of the above

considerations and the evidence as a whole, the
Chamber finds beyond reasonable doubt that Mr
Bemba failed to take all necessary and reasonable
measures within his power to prevent or repress the
commission of crimes by his subordinates during the
2002-2003 CAR Operation, or to submit the matter to
the competent authorities.
5. The crimes were committed as a result of

the Accuseds failure to exercise control
properly over the MLC forces
See Section V(D), para. 575.

2198
See Section V(B)(2)(d).
2199
Additional Protocol I, Article 87(2).

2202
2203
See Section VI(4).
23
F-338
740. Moreover, consistent with evidence of a modus
allegations of crimes, including on CAR territory in

the midst of the 2002-2003 CAR Operation and
despite his remote location, Mr Bemba had the
authority and ability to take measures to prevent and
repress the commission of crimes. For example, as
also noted above in Section VI(F)(4), Mr Bemba
could have, inter alia, taken measures to ensure
consistent and adequate training of MLC troops,
including ensuring promulgation of a clear and
complete Code of Conduct which reflected the
requirements of international law; ensured adequate
supervision; issued clear and consistent orders to his
troops not to commit the crimes; genuinely and fully
investigated allegations of crimes; ensured that MLC
commanders and soldiers implicated as committing or
condoning such crimes were, as appropriate, tried,
removed, replaced, dismissed, and punished; and/or
shared relevant information with the CAR authorities
or others, and supported them in any efforts to
investigate criminal allegations.2204 Such measures would
operandi, most of the crimes were committed when

the MLC was the only armed group in the area.2206 In
particular, the attack on Mongoumba, of which Mr
Bemba knew, but did not take any preventative or
remedial action, occurred when only civilians were
present.2207 The redesign of such military operations
for example, avoiding primarily civilian areas, not
ordering military operations against areas where only
civilians were present, and otherwise limiting contact
with civilians would have minimised the
opportunity for the commission of the crimes. Finally,
the Chamber notes that Mr Bemba ultimately ended
the commission of crimes by MLC soldiers by
withdrawing them from the CAR in March 2003. Had
he withdrawn them earlier a possibility he
acknowledged as early as November 2002 crimes
would have been prevented.2208
741. In light of the above, the Chamber finds that,

had Mr Bemba taken, inter alia, the measures
identified above, the crimes would have been
prevented or would not have been committed in
the circumstances in which they were. The
have deterred the commission of crimes, and generally

diminished, if not eliminated, the climate of acquiescence
which is inherent where troops have inadequate

training, receive unclear orders, and/or observe their
commanders committing or collaborating in crimes
surrounding and facilitating the crimes committed
during the 2002-2003 CAR Operation. Mr Bembas
Chamber therefore finds beyond reasonable doubt that

the crimes against humanity of murder and rape, and
the war crimes of murder, rape, and pillaging
committed by the MLC forces in the course of the 20022003 CAR Operation were a result of Mr Bembas
failure to exercise control properly.
failures in this regard directly contributed to, inter alia, the

continuation and further commission of crimes.
739. Further, clear training, orders, and hierarchical

examples indicating that the soldiers should respect
and not mistreat the civilian population would have
reduced, if not eliminated, crimes motivated by a
distrust of the civilian population, as enemies or
enemy sympathisers. Recalling Mr Bembas position
of high authority as President of the MLC and
Commander-in-Chief of the ALC, as well as of his
effective authority and control, the Chamber finds that
Mr Bembas position obligated him to take such
measures, both personally and through the
hierarchical chain of command. Likewise, if the
soldiers had received adequate payment and rations,
the risk that they would pillage or rape for selfcompensation, and murder thosewhoresisted, would
have been reduced, if not eliminated. The Chamber
recalls in this regard its finding in relation to Mr
Bembas control over MLCs financial resources.2205
6. CONCLUSION
742. The Chamber finds beyond reasonable doubt

that Mr Bemba is criminally responsible under Article
28(a) for the crimes against humanity of murder and
rape, and the war crimes of murder, rape, and pillaging
committed by his forces in the course of the 2002-2003
CAR Operation.
VII. CUMULATIVE CONVICTIONS
743. Recalling its findings beyond reasonable doubt

that Mr Bemba is criminally responsible under Article
28(a) for (i) rape as both a war crime and crime
against humanity based on the same underlying
conduct and (ii) murder as both a war crime and crime
against humanity based on the same underlying
conduct,2209 the Chamber must consider whether
2206

2208
See Sectio ns V(C)(12) and V(C)(13).
2209
See Section VI.
2207
2204
2205
See Section VI(4).

(2016) 1 LAW
24
(2016) 1 LAW
convictions for these offences are impermissibly

cumulative.
conclusion that multiple criminal convictions

entered under different statutory provisions but
based on the same conduct are permissible only
if each statutory provision involved has a
materially distinct element not contained in the
other. An element is materially distinct from another if
744. Article 20, entitled ne bis in idem, applies in

situations where a person has already been convicted,
acquitted, and/or tried before this Court or another
court. However, the Defence submits that Article 20
also prohibits cumulative convictions in a single set of
proceedings for the same underlying conduct in
respect of multiple offences.2210 This situation is not
expressly addressed in the Courts statutory
framework, nor does it feature in the travaux
prparatoires.
it requires proof of a fact not required by the other.
747. For purposes of this determination, the ICTY

Appeals Chamber has found that all elements,
including the contextual elements, should be taken
into account,2215 but not the underlying acts or
omissions of an accused.2216 Where the offences are
not materially distinct, the ICTY Appeals Chamber
considered that a conviction should be entered under
the more specific provision.2217 This cumulative
convictions test has been adopted by Trial Chamber
II2218 and the appeals chambers of the ICTR,2219
SCSL,2220 and ECCC.2221 The Chamber further notes
that the European Court of Human Rights (ECtHR) has
745. Trial Chamber II considered that the principle of

ne bis in
cumulative
accused on
respect of
F-339
idem enshrined in Article 20 meant that

convictions may only be entered against an
the basis of the same course of conduct in
2211
distinct offences.
In this regard, the
Chamber notes that the appeals chambers of the

ICTY and Extraordinary Chambers in the Courts of
Cambodia (ECCC) have found that multiple
found that multiple convictions are permissible for various

offences based on the same underlying conduct, so long as
each of those offences requires proof of a fact not required
2222
by the other.
convictions create a very real risk of prejudice to an

accused, including the stigma inherent in being convicted
of additional crimes and practical consequences, such as a
potential impact on sentencing in the same and subsequent
proceedings (for example, based on habitual offender laws)
2212
and eligibility for early release.
On the other hand,
748. The Chamber agrees with Trial Chamber II and

the ad hoc tribunals that convictions for multiple offences
are permissible where those offences have materially distinct
elements, i.e. each requires proof of a fact not required by
the others. Indeed, the Chamber considers that this test
ensures that an accused is convicted only for distinct offences
and, at the same time, that the convictions entered fully
2223
reflect his or her culpability and criminal conduct.
these courts have also recognised that multiple

convictions serve to describe the full culpability of
an accused and/or provide a complete picture of his
or her criminal conduct.2213
746. In Delali et al., the ICTY Appeals Chamber,
considering the different approaches taken to
cumulative convictions in various domestic
jurisdictions, held that:2214
[] reasons of fairness to the accused and the
consideration that only distinct crimes may
justify multiple convictions, lead to the
2215
ICTY, Jelisi Appeal Judgment, para. 82. See also

ICTR, Musema Appeal Judgment, para. 363.
2216
ICTY, Kordi and erkez Appeal Judgment, para.
1033; & ICTY, orevi Appeal Judgment, para. 839.
2217
ICTY, Delali et al. Appeal Judgment, para. 413;
ICTY. Kunarac et al. Appeal Judgment, para. 170; and
ICTY, orevi Appeal Judgment, para. 839.
2218
Katanga Trial Judgment, para. 1695.
2219
ICTR, Musema Appeal Judgment, para. 363; and ICTR,
Karemera and Ngirumpatse Appeal Judgment, paras
610 and 710.
2220
SCSL, Sesay et al. Appeal Judgment, paras 1190 to
1193, and 1197; and SCSL, Taylor Appeal Judgment,
para. 577.
2221
ECCC, Kaing Guek Eav alias Duch Appeal Judgment,
paras 287 to 300.
2222
ECtHR, Zolotukhin v. Russia Judgment, paras 82 to 84,
and 94.
2223
1033; and ECCC, Kaing Guek Eav alias Duch Appeal
Judgment, paras 296, 298, and 330.
2210

2212
ICTY, Kunarac et al. Appeal Judgment, para. 169; and
ECCC, Kaing Guek Eav alias Duch Appeal Judgment,
para. 295.
2213
ICTY, Kunarac et al. Appeal Judgment, para. 169; and
SCSL, Brima et al. Appeal Judgment, para. 215.
2214
ICTY, Delali et al. Appeal Judgment, paras 412 and
421. See also ICTY, Kunarac et al. Appeal Judgment,
paras 170, 173, and 196; and ICTY, orevi Appeal
Judgment, para. 839.
2211
25
F-340
749. Specific to the issue of whether or not war

crimes and crimes against humanity based on the
same underlying conduct are impermissibly
cumulative, Trial Chamber II found that the war
751. Recalling that, for purposes of determining

whether offences are materially distinct, the focus
is on whether each offence requires proof of a
fact not required by the other, not the acts or
omissions of the Accused,2227 the Chamber finds
crime of murder and crime against humanity of murder

each had materially distinct elements and were
therefore permissible. The crime against humanity
requires the existence of a widespread or systematic
attack against a civilian population and a nexus between
the perpetrators conduct and the attack, while the war
crime requires that the victim was either hors de combat
or was not taking part in hostilities and that the conduct
2224
in question was connected to an armed conflict.
that Mr Bembas conviction, based on his criminal

responsibility under Article 28(a), for (i) rape as both a
war crime and crime against humanity and (ii) murder
as both a war crime and crime against humanity is
permissible.
VIII. DISPOSITION
752. For the foregoing reasons and on the basis of

the evidence submitted and discussed before the
Chamber at trial, and the entire proceedings,
pursuant to Article 74(2) of the Statute, the
Likewise, the ICTY and ICTR Appeals Chambers

have repeatedly affirmed that convictions may be
entered for both crimes against humanity and war
2225
crimes as they have materially distinct elements.
Chamber finds Mr Jean-Pierre Bemba Gamba GUILTY,

under Article 28(a) of the Statute, as a person effectively
acting as a military commander, of the crimes of:
750. The Chamber concurs with Trial Chamber II

and the ad hoc tribunals that war crimes and crimes
against humanity have materially distinct elements,
each requiring proof of a fact not required by the other.
Ultimately, the Chamber considers that the
permissibility of multiple convictions turns on legislative
intent. In adopting contextual elements for war
(a) Murder as a crime against humanity

under Article 7(1) (a) of the Statute;
(b) Murder as a war crime under Article
8(2)(c)(i) of the Statute;
(c) Rape as a crime against humanity under
Article 7(l)(g) of the Statute;
(d) Rape as a war crime under Article
8(2)(e)(vi) of the Statute; and
(e) Pillaging as a war crime under Article
8(2)(e)(v) of the Statute.
crimes and crimes against humanity that are

materially distinct, the Chamber considers that
the drafters of the Statute intended that convictions for
the same conduct be entered under both Articles 7 and 8
2226
if all elements are satisfied.
2224
2225
ICTY, Jelisi Appeal Judgment, para. 82; ICTY,

Kupreki et al. Appeal Judgment, paras 387 to 388;
ICTY, Kunarac et al. Appeal Judgment, paras 168,
170, 173, 179, and 196; ICTY, Vasiljevi Appeal
Judgment, paras 144 to 146; ICTR, Rutaganda Appeal
Judgment, paras 583 to 584; ICTR, Ntagerura et al.
Appeal Judgment, paras 427 to 428; ICTY, Gali
Appeal Judgment, para. 165; and ICTR, Bagosora and
Nsengiyumva Appeal Judgment, para. 415.
2226
753. Judge Sylvia Steiner and Judge Kuniko

Ozaki append separate opinions to this Judgment
on discrete issues.
Done in both English and French, the English
version being authoritative.
Dated this 21 March 2016
At The Hague, The Netherlands
N ICC-01/05-01/08
The ICTY Appeals Chamber followed a similar approach

in relation to its statute, which similarly differentiated
between crimes against humanity and war crimes. See
ICTY, Kunarac et al. Appeal Judgment, para. 178,
considering that the chapeaux elements disclose the
animating desire [of the drafters] that all species of
such crimes be adequately described and punished.
(2016) 1 LAW
[THE END]
21 March 2016
*****
2227
26

1033; & ICTY, orevi Appeal Judgment, para. 839.
(2016) 1 LAW
Swaraj Abhiyan-I v. Union of India & Ors. [IND-SC]
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 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
(2016) 1 LAW ISC-145
SUPREME COURT OF INDIA

AT NEW DELHI
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) No. 857 of 2015
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
Date of Judgment : Wednesday, 11 May 2016

Swaraj Abhiyan - (I)
Petitioner
Versus
Union of India & Ors.
Respondents.
Citation: (2016) 1 LAW ISC-145
CORAM:
MADAN B. LOKUR, J.
N.V. RAMANA, J.
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.
***
SHORT NOTES: This is the first in a series of four important
decisions of the Apex Court conscientiously scrutinizing and
making precious observations and giving valuable directions
on the situation of drought prevalent in various states of India,
taking up in earnest a public interest litigation filed by Swaraj
Abhiyan in that regard. This shows how superior courts can
be proactive in protecting, and directing for the improvement
of, the rights and situation of the common man, especially the
ever-afflicted farmers and agricultural populace of India, in
consonance with the fundamental rights/directive principles in
our 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
***
JUDGMENT
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
ISC-145
maintains an ostrich-like attitude, a disaster requires 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.
Courtesy: Supreme Court of India at http://judis.nic.in/;

27
ISC-146
BACKGROUND
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 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
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,
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 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
(2016) 1 LAW
28
(2016) 1 LAW
ISC-147
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.
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.
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
2
Sheela Barse v. Union of India 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:
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 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
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
appears to be degenerating into a no-holds barred

adversarial litigation which it is not meant to be.
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.
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:
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
(2015) 2 SCC 130
29
(1988) 4 SCC 226

ISC-148
Much later, Justice Kirby goes on to say:
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
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 Method3 with reference to
our country as follows:
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 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?
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
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. Cest 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:-
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.
3
The Government have decided to enact a law on

disaster management to provide for requisite
The Hamlyn Lectures, Fifty-fifth Series, 2003
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30
(2016) 1 LAW
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.
ISC-149
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 approved by the NDMA and shall
be reviewed and updated annually. We are told
by the learned Additional Solicitor General that a
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.
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.
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.
constitution of a National Executive Committee
(for short the NEC). In terms of Section 10 of
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.
31
ISC-150

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.
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 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.
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.
33. The above review of the DM Act makes it

abundantly clear that 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.
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
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.
(2016) 1 LAW
32
(2016) 1 LAW
ISC-151
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
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.
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
What is a drought?
39. The Manual is undoubtedly comprehensive, wellresearched 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
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 midOctober (the kharif season) when 80% of Indias
total crop is planted 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
up to date, 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
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.
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
Monitoring of Drought by State Governments
42. According to the Manual, drought is monitored

by the State Governments by obtaining information on
4
5
33
Page 13 and 14 of the Manual for Drought Management.

Pages 4 to 6 of the Manual
ISC-152

6
four key indicators. They are: rainfall; storage water

levels in reservoirs; surface water and ground water
level; sowing and crop conditions. The Manual
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
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. 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 subdivision level is 25 per cent or more of the LongTerm Average of that sub-division for a given
period. The drought is considered moderate, if the
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 it
deficiency is between 26 and 50 per cent, and severe if

8
it is more than 50 per cent.
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, groundwater levels are also
affected due to poor recharge, whether due to
quite 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
Section 2 of the Manual

Page 49 of the Manual. Emphasis has been supplied by us.
8
Page 38 of the Manual
9
7
(2016) 1 LAW
10
Page 38 and 39 of the Manual

12
Section 2 of the Manual
11
34
(2016) 1 LAW
ISC-153
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
impact on vegetation and soil moisture, as

measured by the vegetation index and soil
14
moisture index.
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 cannot be
compensated for and the agricultural production
would be substantially reduced. The State
Government should therefore consider declaring a
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
13
/ girdawari figures.
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.
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.
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 own network of weather stations.
This rainfall data may be applied in two ways:
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)
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
48. According to the Manual, there are at present

11 (eleven) agriculturally important and droughtvulnerable 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
14

16
15
13
Pages 47 and 48 of the Manual
35
ISC-154
National Disaster Management Guidelines
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 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
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
20
evolve.
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
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
ascertain that MAI values conform to the intensity of

moderate drought before drought is declared. MAI
values need to be applied in conjunction with

other indicators such as rainfall figures, area
under sowing and NDVI values.18
17
18
(2016) 1 LAW
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
36
(2016) 1 LAW
ISC-155
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.
relief-centric response to a proactive prevention,

mitigation and preparedness-driven approach for
conserving developmental gains and also to
21
minimize loss of life, livelihood and property.
DECLARATION OF DROUGHT IN BIHAR
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:
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.
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
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 worlds 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
22
year.
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 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
declaration of a drought.
21
22
60. Even a cursory evaluation of the information

points to the fact that (i) Bihar failed to take into
Page 1 of the Guidelines

37
ISC-156
consideration that a drought is not necessarily a State-
(2016) 1 LAW
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
wide phenomenon and a declaration of drought might

be limited 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
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
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
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.
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
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 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
23
24
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,
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
38
Higher values of NDWI signify more surface wetness.
(2016) 1 LAW
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
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
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
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.
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,
an in-depth analysis, it is concluded by Bihar that the

situation does not warrant the declaration of drought.
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
25
ISC-157
Source: http://bhuvan.nrsc.gov.in
39
ISC-158
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 different
expression without admitting a drought.
78. Subsequently, another 468 villages have also
been declared as affected by drought (or semiscarcity 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
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.
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 subCommittee 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?
(2016) 1 LAW
40
(2016) 1 LAW
irrigation that there are a large number of borewells for irrigation and both these regions have
about 94% to 95% of crop sowing. There is
adequate food grain available including fodder
for cattle and there is adequate availability of
drinking water.
83. The affidavit and contentions of Gujarat raise
an extremely important issue namely whether
continued importance should be given to 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 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-tested method of determining scarcity
or drought. Consequently, both NDVI and MAI have
not been given any importance by Gujarat or in any
Drought declaration should be a timely step so

that relief assistance and other concessions can
be provided to the drought affected people at the
27
right time.
event, greater importance is given to the

traditional annewari system of assessment of crop
production.
81. For this reason, we do not have the NDVI
figures with us but the petitioner has filed with
the Final Rejoinder the MAI chart which indicates
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
28
and assess the crop losses. (emphasis in the original)
that large tracts of Gujarat are facing a severe or

26
moderate drought.
82. In justification of not declaring a drought or a

drought-like situation, Gujarat says that it has
taken steps to combat the probable water crisis
and the National and State Water Policy for
drinking water has been given the highest
priority. It is further stated that South Gujarat has
perennial rivers namely Narmada and Tapi and
Central Gujarat has the perennial river Mahi.
Gujarat has an extensive network of pipelines and
several water supply schemes based on these
rivers and other rivers as also water reservoirs
and bore-wells. It is because of the river/canal
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.
27
26
ISC-159
28
41

ISC-160
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 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
29
September and end season by November.
(2016) 1 LAW
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,
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 important indicator for the
purposes of declaring a drought. There is also no
application of mind to any of the key indicators
(NDVI and MAI) mentioned in the Manual and
the pity is that there appears to be a total lack of
any concern for the situation on the ground.
91. The petitioner has placed before us the MAI
for Haryana ending 30th September, 201530. A
perusal of the chart indicates that (frighteningly)
most of Haryana is in the grip of a severe or
moderate or mild drought. But Haryana also
banks upon other factors for not declaring a
drought, such as:
29
30
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
42
(2016) 1 LAW
(i) Extent of fodder supply and its prevailing

prices compared to normal prices;
(ii) Position regarding drinking water supply;
(iii) Demand for employment on public works,
and unusual movement of labour in search of
employment;
(iv) Current agricultural and non-agricultural
wages compared with normal times;
(v) Supply of food grains, and price situation of
essential commodities, could be applied by
the State, in combination for drought
declaration.
ISC-161
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--vis other states. The requirement of
water is also dependent on the type of crop sown
and even when there is deficit rainfall, the crop
production does not necessarily fall to that extent
in all states. Accordingly, in a federal polity, it may
92. We make no comment on the view expressed

by Haryana except to say that the disparity in the
methodology of assessment of a drought or a
drought-like condition between the Government
of India and Haryana is quite stark.
DISCUSSION AND CONCLUSIONS
93. Each of the three States that we are concerned

with have their own unique method of
determining whether there is a drought or not.
According to the learned Additional Solicitor
General the Manual and the Guidelines are
indicative and not mandatory. The third affidavit
of the Union of India complicates the matter by
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,
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
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.
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:
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
14. In reply to para 7 & para 17 of the revised

note it is submitted that the petitioner has stated
43
ISC-162
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
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 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 smallminded 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
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 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 1/4th 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
district or a smaller unit, but the fact is that
31
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
(2016) 1 LAW
44
(2016) 1 LAW
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:
ISC-163
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 wellresearched 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
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 ostrichlike attitude of these State Governments that
compels us to make some comment about their
concern.
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:
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
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
(i) Weightage to be given to each of the four key

indicators 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.
45
ISC-164
(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 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 [in] 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.
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 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.
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.
(2016) 1 LAW
*****
46
(2016) 1 LAW
Swaraj Abhiyan-II v. Union of India & Ors. [IND-SC]
(2016) 1 LAW ISC-165
(i) All households should be provided with 5 kg

food grains per person per month
irrespective of whether or not they fall in the
category of priority households as defined in
Section 2(14) of the NFS Act read with
Section 10 thereof. The provision for food
grains should be in addition to and not in
derogation of any other entitlement in any
other government scheme.
(ii) Households that do not have a ration card or
family members left out of existing ration
cards should be issued special and
temporary coupons on production of an
appropriate identity card or any other proof
of residence.
(iii) Each household affected by the drought
should be provided 2 kg of dal (lentil) per
month at Rs. 30 per kg and one litre of
edible oil per month at Rs. 25 per litre
through the Public Distribution System. In
this regard, reference was made to a similar
scheme which is said to be working quite
well in Tamil Nadu.
(iv) Children affected by the drought should be
provided one egg or 200 gms of milk per
day (6 days a week) under the Mid-Day
Meal Scheme. In addition to this, the MidDay Meal Scheme should continue during
the summer vacation period in schools so
that children are not deprived of their meals,
including eggs or milk, as the case may be.

AT NEW DELHI

Date of Judgment: Friday, 13 May 2016
Swaraj Abhiyan - (II)
Versus
Petitioner
Respondents.
CORAM:
MADAN B. LOKUR, J.
N.V. RAMANA, J.
***
SHORT NOTES: This is the second in the series of the four
important recent decisions of the Apex Court scrutinizing,
and deals particularly with the implementation of the National
Food Security Act, 2013.
***
JUDGMENT
MADAN B. LOKUR, J.
1. In our judgment dated 11th May, 2016 we had
adverted to the drought or the drought-like
conditions prevailing in several parts of our
country and had issued certain directions for
compliance. In this judgment, we will deal with the
prayer made by the petitioner Swaraj Abhiyan
relating to the implementation of the National Food
Security Act, 2013 (for short the NFS Act).
3. The Union of India has explained in its

response that in terms of Section 3 of the NFS
Act the monthly entitlement of food grains is 5 kg
per person for eligible households under priority
category and 35 per kg per family under the
Antyodaya Anna Yojna for rice, wheat and coarse
grains. Coverage under the NFS Act has been
delinked from poverty estimates and is
substantially above the percentage of population
living below the poverty line. It is submitted that
coverage under the NFS Act has to be determined
by each State and the criteria for identification of
priority households and their actual identification
is the responsibility of the State Government. It is
further stated that the State Government is
expected to digitize the beneficiary database and
also set up a grievance redressal mechanism.
IMPLEMENTATION OF THE
NATIONAL FOOD SECURITY ACT, 2013
2. It is submitted by the petitioner that it is

necessary to ensure food security to the persons
affected by the drought. In this regard, the
petitioner made four suggestions and they are:
ISC-165

47
ISC-166
8. It is further stated by the Union of India that

the menu under the Mid-Day Meal Scheme is
locally decided and of the 12 States that we are
concerned with, only 5 States that is Andhra
Pradesh, Karnataka, Madhya Pradesh, Odisha and
Telangana provide either eggs or milk under the
Mid-Day Meal Scheme. According to Swaraj
Abhiyan, additional or different items like chana
(for example) is provided by 4 other States,
Chhattisgarh,
Gujarat,
Jharkhand
and
Maharashtra. Admittedly, neither eggs nor milk
nor any other additional item is provided by 3
States, that is, Bihar, Haryana and Uttar Pradesh.
9. With regard to continuing the Mid-Day Meal
Scheme during the summer vacations in the
drought affected areas, the Union of India says
that only 3 of the States that we are concerned
with, that is, Karnataka, Maharashtra and Uttar
Pradesh made such a proposal during 2015-16
and that was sanctioned by the Performance
Appraisal Board. As far as 2016-17 is concerned,
only Chhattisgarh, Karnataka and Madhya
Pradesh have made a request and that is under
consideration by the Performance Appraisal
Board.
10. The monitoring and implementation of the NFS
4. For implementation of the NFS Act, the State

Government is required to complete all
preparatory steps for which guidelines have been
issued by the Government of India. In this
context, it is stated that the implementation of the
NFS Act has started in 32 States and Union
Territories and as far as Gujarat is concerned it
will implement the NFS Act from 1st April 2016.
During the course of hearing, we were informed
that thankfully Gujarat is now implementing the
NFS Act.
5. It is also stated that since drought is a
temporary phenomenon, additional food grains
are made available on request basis from the State
Government. It is further stated that for 2015-16,
only Maharashtra made a request for additional
food grain allocation for drought affected people
and the Government of India made available 1.63
lakh tons of rice and 2.44 lakh tons of wheat, as
requested.
6. With regard to the supply of dal/lentil and
edible oils, it is stated by the Union of India that
under the NFS Act there is no provision to supply
these items. In the absence of sufficient domestic
availability of these items, their supply under the
Public Distribution System is difficult to ensure
and there are fiscal constraints on stretching the
food subsidy bill by including the supply of
dal/lentil and edible oils. However, the State
Governments are at liberty to distribute additional
items out of their own resources. In fact, Andhra
Pradesh, Chhattisgarh, Haryana, Karnataka and
Telangana are distributing dal/lentil or edible oils
to sections of society while Chhattisgarh is
distributing chana (gram) in scheduled areas.
7. With regard to the Mid-Day Meal Scheme, it is
stated by the Union of India that there is no
special provision for the supply of eggs or milk
but there is a requirement of minimum calorific
and nutritional contents. These are as follows:
(2016) 1 LAW
Act is really the duty and responsibility of the State

Food Commission under Section 16 of the NFS Act. We
are told that not every State has established such a
Commission making it difficult for any corrective or
remedial measures in respect of the review and
implementation of the NFS Act. It is high time that the
machinery under the NFS Act is put in place by all
concerned otherwise the enactment of social justice
legislations will have no meaning at all.
11. We are quite surprised that with regard to the

implementation of the NFS Act, even though the
statute was passed by Parliament and it extends to
the whole of India and is deemed to have come
into force on 5th July 2013, some States have not
implemented it. As per the chart provided to us
by learned counsel for the petitioner in the Note,
the State of Uttar Pradesh has partially
implemented the NFS Act in the sense that it has
48
(2016) 1 LAW
ISC-167
14. In State of Himachal Pradesh v. Umed Ram

1
Sharma the High Court had treated a letter as a
public interest petition received from some poor
and mostly Harijan residents of a village
complaining of the failure of the State
Government to complete the construction of a
road due to collusion between the residents of
another village and the administrative authorities.
The High Court heard the matter and gave
directions, inter alia, for early completion of the
road. This was challenged by the State before this
Court. This Court took resort to Article 21 of the
been implemented only in 28 of its 75 districts.

Gujarat has admittedly implemented the NFS Act
only from 1st April 2016.
12. It is surprising that the implementation of a law
enacted by Parliament such as the NFS Act is left to the
whims and fancies of the State Governments, and it
has taken more than two years after the NFS Act
came into force for Gujarat to implement it and
Uttar Pradesh has only implemented it partially.
This is rather strange. A State Government, by
delaying implementation of a law passed by the
Parliament and assented to by the President of India, is
effectively refusing to implement it and Parliament is
left a mute spectator. Does our Constitution
countenance such a situation? Is this what federalism
is all about? Deliberate inaction in the implementation
of a parliamentary statute by a State Government can
only lead to utter chaos or worse. One can hardly
Constitution and observed that for residents of hilly

areas, access to roads is access to life itself. This Court
held:
The entire State of Himachal Pradesh is in hills
and without workable roads, no communication
is possible. Every person is entitled to life as
enjoined in Article 21 of the Constitution and in
the facts of this case read in conjunction with
Article 19(1)(d) of the Constitution and in the
background of Article 38(2) of the Constitution
every person has right under Article 19(1)(d) to
move freely throughout the territory of India and
he has also the right under Article 21 to his life
and that right under Article 21 embraces not only
imagine what the consequence would be if a State

Government, on a similar logic, decides that it
will not implement other parliamentary statutes
meant for the benefit of vulnerable sections of
society. Hopefully, someone, somewhere,
sometime will realize the possible alarming
consequences.
13. We find force in the submission of the learned
Additional Solicitor General that no mandamus
can be issued by this Court to the State
Governments to implement the NFS Act beyond
what is required by the terms and provisions of
the statute. In other words, it is not possible for us
to issue a positive direction to the State
Governments to make available to needy persons
any item over and above what is mandated by the
NFS Act, such as dal/lentil and edible oil (or any
other item for that matter) to all households in the
drought affected areas. Today, Swaraj Abhiyan
prays for the supply of dal/lentil and edible oils;
tomorrow some other NGO might pray for the
supply of some other items. This might become
an endless exercise and would require us to go
beyond what Parliament has provided. While this
physical existence of life but the quality of life and for

residents of hilly areas, access to road is access to life
itself. These propositions are well settled. We
accept the proposition that there should be road

for communication in reasonable conditions in
view of our constitutional imperatives and denial
of that right would be denial of the life as
understood in its richness and fullness by the
ambit of the Constitution. To the residents of the
hilly areas as far as feasible and possible society has
constitutional obligation to provide roads for
communication.
15. After referring to Article 38(2) of the

Constitution, this Court observed that access to
life should be for the hillman an obligation of the
State but it is primarily within the domain of the
legislature and the executive to decide the priority
as well as to determine the urgency. There had
been allocation of funds and the court has
directed the executive to bring it to the notice of
Court or any other constitutional court can certainly

intervene, to a limited extent, in issues of governance it
has also to show judicial restraint in some areas of
governance, and this is one of them.
49
(1986) 2 SCC 68
ISC-168
preserve and protect the fundamental rights of

marginalized, deprived and poor sections of
society.
Phase II. - It deals with the cases relating to
protection, preservation of ecology, environment,
forests, marine life, wildlife, mountains, rivers,
historical monuments, etc. etc. This hardly needs
any elucidation. This Court has been in the
forefront in issues relating to the environment,
forests and historical movements, amongst
others. There are several decisions of this Court
in this regard.
Phase III. - It deals with the directions issued by
the Courts in maintaining the probity,
transparency and integrity in governance. In the
third phase, the constitutional courts broadened the
the legislature if some reallocation was feasible

amongst the sanctioned expenditure for roads
leaving the priorities to the discretion of the
competent authorities.
16. In State of H.P. v. High Court of H.P.2 the High
Court acted on a newspaper report and directed
the construction of a certain road during the
current financial year and the State Government
was directed to make the funds available for the
purpose. This Court found it extremely difficult
to uphold the order of the High Court. Two
principal reasons were given: firstly, it is for the
State Government to determine its priorities and
allocate funds, even though it might be necessary
to lay a communication network; secondly, the
necessity could be fulfilled only on the
availability of funds. Any interference of this
nature would require diversion of funds carefully
allocated on the basis of priority requirements
and thereby disturb the programme of
development chalked out by the State
Government.
17. In matters involving financial issues and
scope of public interest litigation and also entertained

petitions to ensure that in governance of the State, there
is transparency and no extraneous considerations are
taken into consideration except the public interest.
19. As far as the present case is concerned, there

is no doubt that provision of food grains as per the
provisions of the NFS Act is a statutory obligation on
the State. This Court can certainly direct the State to
faithfully implement the provisions of the NFS Act.
Unfortunately, there is no statutory or

constitutional obligation on the State to provide
edible oils and dal/lentil to people in distress. If
these items were vital for the survival of the
people, this Court would have surely directed
their distribution. But there is nothing to suggest
that without edible oils and dal/lentil the
fundamental right of the people in drought
affected areas guaranteed under Article 21 of the
Constitution is violated. We therefore cannot
reasonably read into the Constitution or the law
something that is not there. That apart, although
the number of affected households is not
available with us, we can only assume the
number to be sizeable given the fact that drought
has been declared in vast areas of the country.
Even on a conservative estimate, more than 33
crore people are affected by drought with varying
degrees of distress and intensity. The estimate of
Swaraj Abhiyan is between about 40 crore and
over 50 crore people being affected by drought.
All that we can say and do say in this regard is
that at least 1/4th of the countrys population (if
prioritization of finances, this Court should defer to the

priorities determined by the State, unless there is a
statutory obligation that needs to be fulfilled by the State.
It is for this reason that in the matter of

construction of roads (for example) this Court has
left the prioritization to the State.
18. In State of Uttaranchal v. Balwant Singh Chaufal3
this Court observed that public interest litigation
in India has travelled through three phases. These
are:
Phase I. - It deals with cases of this Court where
directions and orders were passed primarily to
protect fundamental rights under Article 21 of
the marginalised groups and sections of the
society who because of extreme poverty,
illiteracy and ignorance cannot approach this
Court or the High Courts. During this phase, the
courts relaxed the traditional rule of locus standi
and broadened the definition of aggrieved
persons and gave directions and orders to
2
3
(2000) 10 SCC 646

(2010) 3 SCC 402
(2016) 1 LAW
50
(2016) 1 LAW
not 1/3rd) is affected by drought and the State

Governments must take appropriate steps to
ensure that at least the statutory requirement of
food grains is made available to the people in the
drought affected areas of the country. In addition,
and to the extent possible, the State Government
should take appropriate measures to provide
dal/lentil and an appropriate cooking medium and
any other items of necessity to persons affected
by the drought and if a request is made by a State
Government to the Government of India, it must
consider the request with compassion.
20. We would like to draw attention to Article 47
of the Constitution which provides that one of the
primary duties of the State is to raise the level of
nutrition and the standard of living of the people.4
Although Article 47 is not enforceable being a
Directive Principle, there is considerable moral
force and authority in this provision to persuade
the State Governments and the Government of
India to attempt at ensuring that the people,
particularly those in drought affected areas, are
provided adequate food grains and a cooking
medium for the preparation of their meals.
21. Similarly, the entitlement of food grains at 5
kg per person per month (as per the NFS Act) is a
goal that must be achieved by the State at the
earliest particularly in drought affected areas. In
fact, statute or no statute and implementation or
non-implementation of a law enacted by
Parliament, the State ought to appreciate and
realize that an adequate supply of food grains
must be made available without much fuss to
people in drought affected areas. As it is, because
of the drought such persons undergo immense
hardship mainly for reasons beyond their control
4
ISC-169
and if there is a scarcity of food, it would only

add to their misery and adversity if not multiply
it. The State being a welfare State must take these
factors into consideration and strain every nerve
to ensure that the mandate of the NFS Act is
adhered to.
22. In this context, it would be inappropriate for the
State Governments to deprive any household in drought
affected areas of the requisite food grains merely
because they do not have a ration card. We find
substance in the contention of learned counsel for

Swaraj Abhiyan that in grave and emergent
situations such as those in the drought affected
areas, the requirement of a ration card for
obtaining food grains can only be considered a
procedural requirement and that requirement
should be substituted with a valid identity card or
any appropriate proof of residence that is
acceptable to the functionaries in the State
Governments, who need to construe such a
condition open-handedly and without being tightfisted.
23. We reject the contention on behalf of the
Union of India that fiscal constraints or an
increase in the food subsidy bill can be a reason
for denying relief to persons in drought affected
areas. Our constitutional jurisprudence has
travelled an enormous distance over the years to
even think of attempting a roll-back.
24. In Municipal Council, Ratlam v. Vardichan5
this Court took the view that a plea of financial
inability cannot be an excuse for disregarding statutory
duties. It was held in paragraph 12 of the Report:
The statutory setting being thus plain, the

municipality cannot extricate itself from its
responsibility. Its plea is not that the facts are
wrong but that the law is not right because the
municipal funds being insufficient it cannot carry
out the duties under Section 123 of the Act. This
alibi made us issue notice to the State which is
now represented by counsel, Shri Gambhir,
before us. The plea of the municipality that
47. Duty of the State to raise the level of nutrition and the
standard of living and to improve public health The State
shall regard the raising of the level of nutrition and the

standard of living of its people and the improvement of
public health as among its primary duties and, in
particular, the State shall endeavour to bring about
prohibition of the consumption, except for medicinal
purposes of intoxicating drinks and of drugs which are
injurious to health.
notwithstanding the public nuisance financial inability

validly exonerates it from statutory liability has no
5
51
(1980) 4 SCC 162

ISC-170
juridical basis. The criminal procedure code operates

against statutory bodies and others regardless of the
cash in their coffers, even as human rights under Part
III of the Constitution have to be respected by the State
regardless of budgetary provision. Likewise, Section
another constitutional obligation of providing

adequate medical services to the people and held
in paragraph 16 of the Report as follows:
It is no doubt true that financial resources are
needed for providing these facilities. But at the
same time it cannot be ignored that it is the
123 of the Act has no saving clause when the

municipal council is penniless. Otherwise, a
profligate statutory body or pachydermic
governmental agency may legally defy duties
under the law by urging in self-defence a selfcreated bankruptcy or perverted expenditure
budget. That cannot be.
constitutional obligation of the State to provide adequate

medical services to the people. Whatever is necessary for
this purpose has to be done. In the context of the
constitutional obligation to provide free legal aid

to a poor accused this Court has held that the
State cannot avoid its constitutional obligation in
that regard on account of financial constraints.
[See: Khatri (II) v. State of Bihar] The said
observations would apply with equal, if not
greater, force in the matter of discharge of
constitutional obligation of the State to provide
medical aid to preserve human life. In the matter
of allocation of funds for medical services the
said constitutional obligation of the State has to
be kept in view.
25. Similarly, in Khatri (II) v. State of Bihar6 this

Court referred to a constitutional obligation (as
against a statutory obligation) of providing free
legal services to an indigent person and had this
to say in paragraph 5 of the Report:
Mr K.G. Bhagat on behalf of the State agreed
that in view of the decision of this Court the
State was bound to provide free legal services to
an indigent accused but he suggested that the
State might find it difficult to do so owing to
financial constraints. We may point out to the
State of Bihar that it cannot avoid its
constitutional obligation to provide free legal
services to a poor accused by pleading financial
or administrative inability. The State is under a
constitutional mandate to provide free legal aid
to an accused person who is unable to secure
legal services on account of indigence and
whatever is necessary for this purpose has to be
done by the State. The State may have its
financial constraints and its priorities in
expenditure but, as pointed out by the court in
Rhem v. Malcolm7 the law does not permit any
There is undoubtedly a distinction between a

statutory obligation and a constitutional
obligation but there can be no doubt that the right to
food is actually a constitutional right and not merely a
statutory right. [See for example: Shantistar Builders v.
Narayan Khimalal Totame.10] In any event, even if
the right to food is a statutory right, it would be

the obligation of the State to make all possible
efforts and some more to ensure that to the extent
possible, adequate food grains are available to all
and particularly to those in drought affected
areas. There can hardly be any dispute on this. In
this context, it would be worth recalling the
Preamble to the NFS Act which states that it is
An Act to provide for food and nutritional
security in human life cycle approach, by
ensuring access to adequate quantity of quality
food at affordable prices to people to live a life
with dignity and for matters connected therewith
or incidental thereto.
27. As far as the provision of eggs or milk for
Mid-Day Meals is concerned, there is no dispute
that calorific and nutritional contents for children
have been prescribed under the Mid-Day Meal
Government to deprive its citizens of constitutional

rights on a plea of poverty and to quote the words
of Justice Blackmun in Jackson v. Bishop8

humane considerations and constitutional requirements
are not in this day to be measured by dollar
considerations.
26. Finally, in Paschim Banga Khet Mazdoor

9
Samity v. State of W.B. this Court referred to
6
(1981) 1 SCC 627

377 F Supp 995
8
404 F Supp 2d 571
9
(1996) 4 SCC 37
7
(2016) 1 LAW
10
52
(1990) 1 SCC 520
(2016) 1 LAW
Scheme. How that standard is to be met is for

each State Government to decide and no direction
can be given in this regard by this Court. Apart
from milk and eggs, there are other nutritional
items that can be provided, such as chana or
gram. However, it is unfortunate that neither milk
nor eggs or anything else is provided under the
Mid-Day Meal Scheme in Bihar, Haryana and
Uttar Pradesh. Even in the States that we are
concerned with, eggs or milk is not being
provided to the beneficiaries on a daily basis or 5
days in a week, except in Chhattisgarh where
eggs are provided for 6 days in a week. In other
States that provide eggs or milk, the provision
varies from one day to three days per week.
28. No one can doubt that children are the future
of our country and if there is some stinginess in
providing them with adequate nutrition, the
country as a whole is deprived in future of taking
the benefit of their potential. Therefore, the
ISC-171
Meal Scheme provide in Chapter 5 thereof

(paragraph 5.1(4)(iii)) as follows:
In case notification declaring an area as
drought-affected is issued at a time when
summer vacation has already commenced or is
about to commence, State Govt. should provide
mid-day meal in primary schools located in such
areas in anticipation of release of Central
assistance.
Accordingly, we take it, that the State Government

of each of the drought affected States before us
(other than the three States mentioned above) are
not averse to extending the Mid-Day Meal
Scheme into the vacation period for schools in the
drought affected areas.
DIRECTIONS
30. In view of the discussion and the conclusions

arrived at by us, we issue the follow directions:
1. Each of the States before us shall establish an
internal grievance mechanism and appoint or
designate for each district a District Grievance
Redressal Officer as postulated by Section 14
and Section 15 respectively of the NFS Act
within one month from today, unless these
provisions have already been complied with.
The said Officer would also be entitled to
address grievances relating to non-supply of
food grains due to the absence of a ration
card.
2. Each of the States before us shall constitute a
State Food Commission for the purpose of
monitoring and reviewing the implementation
of the NFS Act as postulated by Section 16
thereof within two months from today, unless
a State Food Commission has already been
constituted.
3. In the States in which drought has been
declared or might be declared in the future,
all households should be provided with their
monthly entitlement of food grains in terms
of the NFS Act regardless of whether they
fall in the category of priority household or
not. The provision made under the NFS Act
shall be in addition to and not in derogation
of any other entitlement under any other
government scheme.
calorific and nutritional requirements mentioned by the

Union of India cannot be treated as the maximum
requirements but only as the minimum requirements.
29. As regards the provision of extending the

Mid-Day Meal Scheme during the summer
vacations, it is a pity that for the year 2016-17
only three States, that is Karnataka, Madhya
Pradesh and Chhattisgarh have submitted a
proposal for consideration to the Government of
India. Is it that the States expect the children and
their families to fend for themselves during the
summer months? Maharashtra had submitted a
proposal in 2015-16 to the Union of India and
that was accepted as it is by the Performance
Appraisal Board but no proposal appears to have
been made by Maharashtra for 2016-17. Is it that
the drought conditions have improved in
Maharashtra over the last one year? We do not
know. We have not been given any reason for not
extending the Mid-Day Meal Scheme into the
summer vacation in respect of some of the
drought affected States before us, nor is there any
opposition to the prayer for extension made by
Swaraj Abhiyan in this regard. In fact the
Guidelines of September 2006 for the Mid-Day
53
ISC-172
4. No household in a drought affected area shall be
Parliament can be given effect to without

appropriate rules and regulations being framed
for putting in place the nuts and bolts needed to
give teeth to the law or setting up mechanisms in
accordance with the provisions of the statute. It is
perhaps this tardiness in execution that enables
some State Governments to take it easy and
implement the law whenever it is convenient to
do so.
*****
denied food grains as required under the NFS Act

only because the household does not have a ration
card. The requirement of a household having a
ration card is directed to be substituted by an

appropriate identification or proof of residence
that is acceptable to the State Government.
5. It is made clear that each of the States before
us is fully entitled to provide any food grains
or other items over and above and in addition
to the entitlement of a household under the
NFS Act. There is no restriction in this regard.
6. The States of Bihar, Haryana and Uttar Pradesh
AN APPEAL
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to and advertise in this unique type of
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liberally. We also request that scholarly and
thought-provoking articles on any aspect of
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preferably with comparative international
study, be sent for publication in this journal.
must within a month from today make adequate

provision for the supply of eggs or milk or any other
nutritional substitute for children under the MidDay Meal Scheme. Eggs, milk or another
nutritional substitute should be made

available preferably five days in a week or at
least three days in a week. The other States
before us must make a similar provision for
the supply of eggs or milk or any other
nutritional substitute preferably five days in a
week or at least three days in a week.
Keeping in mind the children of this country,
financial constraints shall not be an excuse
for not complying with this direction. It is a
sad commentary that we should have to say
this but we need to in the interest of the
children of our country.
7. The States before us are directed to extend the Mid-
Life subscription for this journal: Rs. 12,000/and annual subscription for 2016: Rs. 1200/-.
Any annual subscription will count for one
volume i.e. January to December of the year,
and back-numbers, subject to availability, or
as pdf files (soft copies) surely, will be supplied
to the subscriber.
- I.M. Sharma, Editor.
Day Meal Scheme for the benefit of children during

the summer vacation period in schools, if the
extension has not yet been made, within a

week from today. The Union of India shall
immediately approve any such a proposal in
consultation with these State Governments.
This direction is being passed in the interest
of children in drought-affected areas.
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31. We might mention that the Union of India

usually brings into force a statute without putting
in place the implementation machinery. This is
clearly demonstrated by the fact that the
mechanism for enforcing several provisions of
the NFS Act has not been established or
constituted. This is completely inexplicable. We
fail to understand how a statute enacted by
(2016) 1 LAW
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(2016) 1 LAW
Swaraj Abhiyan-III v. Union of India & Ors. [IND-SC]
(2016) 1 LAW ISC-173
2. In this judgment we deal with the implementation

AT NEW DELHI
of the Mahatma Gandhi National Rural Employment

Guarantee Act, 2005 and the Mahatma Gandhi National
Rural Employment Guarantee Scheme framed under
the provisions of Section 4 of the said Act.1
Implementation of the MGNREG Scheme
3. The Mahatma Gandhi National Rural

Employment Guarantee Act, 2005 (for short the
NREG Act) has a very simple and straightforward Preamble which says that it is:

Swaraj Abhiyan - (III)
Versus
Petitioner
An Act to provide for the enhancement of

livelihood security of the households in rural
areas of the country by providing at least one
hundred days of guaranteed wage employment in
every financial year to every household whose
adult members volunteer to do unskilled manual
work and for matters connected therewith or
incidental thereto.
Respondents.
CORAM:
MADAN B. LOKUR, J.
N.V. RAMANA, J.
***
For the effective implementation of the NREG

Act, the Mahatma Gandhi National Rural
Employment Guarantee Scheme (for short the
SHORT NOTES: This is the third in the series of the four

and deals particularly with the implementation of the
Mahatma Gandhi National Rural Employment Guarantee
Act, 2005 & the Mahatma Gandhi National Rural Employment
Guarantee Scheme.
4. Employment Guarantee Schemes for rural areas
(1) For the purposes of giving effect to the provisions of

Section 3, every State Government shall, within six
months from the date of commencement of this Act,
by notification, make a Scheme, for providing not less
than one hundred days of guaranteed employment in a
financial year to every household in the rural areas
covered under the Scheme and whose adult members,
by application, volunteer to do unskilled manual work
subject to the conditions laid down by or under this
Act and in the Scheme :
Provided that until any such Scheme is notified by the
State Government, the Annual Action Plan or
Perspective Plan for the Sampoorna Grameen Rozgar
Yojana (SGRY) or the National Food for Work
Programme (NFFWP) whichever is in force the
concerned areas immediately before such notification
shall be deemed to be the action plan for the Scheme
for the purpose of this Act.
(2) The State Government shall publish a summary of the
Scheme made by it in at least two local newspapers,
one of which shall be in a vernacular language
circulating in the area or areas to which such Scheme
shall apply.
(3) The Scheme made under sub-section (1) shall provide
for the minimum features specified in Schedule I.
***
JUDGMENT
MADAN B. LOKUR, J.
1. In our judgment dated 11th May, 2016 we had
considered the issue of the drought or droughtlike conditions prevailing in some parts of the
country and had issued certain directions for
compliance. Subsequently, in a related matter in
our judgment pronounced today, we have dealt
with the provisions of the National Food Security
Act, 2013 and the Mid-Day Meal Scheme
announced by the Government of India and
issued directions for the effective implementation
of the statute and the Mid-Day Meal Scheme to
benefit people (including children) particularly
those affected by the drought or drought-like
conditions.
ISC-173

55
ISC-174
appropriate directions to the Union of India in

this behalf. While the guarantee is for 100 days in
a year, the State should encourage employment
for more than that.
6. The second prayer made in this context is that
even if there is no budgetary limit, there is an
informal cap on funds under the Scheme and that
should be done away with. To appreciate what is
sought to be conveyed by this prayer requires an
understanding of the procedure followed by the
Government of India in the implementation of the
Scheme.
7. Reference is made by learned counsel to the
Operational Guidelines for NREGA issued in
2013, particularly paragraph 6.9 thereof.3 This
paragraph provides that the Labour Budget (or
LB) should be finalized by each State by 31st
December for all Gram Panchayats (or GP) in the
State and placed before an Empowered
Committee chaired by the Secretary in the
Ministry of Rural Development. This projected
Labour Budget is then slashed and an agreed to
Labour Budget is prepared which is only a
Scheme) has been announced and is implemented
throughout the country.

4. Learned counsel for the petitioner submits that
the Scheme is demand driven and in terms of
Section 3(1) read with Section 3(3) of the NREG
Act, every rural household registered for
employment is entitled as a matter of right to
have one adult person provided with unskilled
manual work and adequate wages under the
Scheme for a minimum of 100 days in a year.2 In
other words, if an adult member of a registered
rural household is voluntarily desirous of doing
unskilled manual work, he/she is guaranteed
work for at least 100 days in a year.
5. The first submission of the petitioner in this
context is that the Government of India and the
concerned State Governments are obliged to
ensure that adequate budgetary provision is made
for the financial implementation of the Scheme. It
is submitted that in addition to ensuring adequate
financial provision, the Government of India as
well as the concerned State Governments should
not place any budgetary limit under the Scheme if
employment is sought over and above 100 days.
The first prayer, therefore, is for issuing
2
6.9. SUBMISSION OF LABOUR BUDGET TO MINISTRY

OF RURAL DEVELOPMENT AND ITS SCRUTINY
The MIS entry made in regard to the LB at GP level will

get aggregated at different levels. The aggregated LB at
District level is required by the Ministry by 31st December
each year in format as per Annexure -10. Therefore, it
needs to be ensured that all data entry work for LB is
completed in all respect by 31st December for all GPs in
State. The LB entered in the MIS (as given in para 6.6
above) will be analysed by the Ministry and put up to the
Empowered Committee chaired by Secretary, Ministry of
Rural Development. The Empowered committee will
discuss the projected LB with the Secretary of the Rural
Development of the concerned State and a final LB for
the State as a whole will be agreed to. The implication of
this is that district/Block/ GP wise LBs as prepared
earlier and submitted to the Ministry are required to be
revised by the State Government and communicated to
respective districts/ blocks and GPs. The LB agreed to,
disaggregated district and month wise shall be entered at
the State/District level in the MIS appropriately. States
are required to complete this exercise within 15 days
from the date the decision regarding agreed to LB is
conveyed to them.
3. Guarantee of rural employment to households
(1) Save as otherwise provided, the State Government

shall, in such rural area in the State as may be notified
by the Central Government, provided to every
household whose adult members volunteer to do
unskilled manual work not less than one hundred days
of such work in a financial year in accordance with
the Scheme made under this Act.
(2) Every person who has done the work given to him
under the Scheme shall be entitled to receive wages at
the wage rate for each day of work.
(3) Save as otherwise provided in this Act, the
disbursement of daily wages shall be made on a
weekly basis or in any case not later than a fortnight
after the date on which such work was done.
(4) The Central Government or the State Government
may, within the limits of its economic capacity and
development, make provisions for securing work to
every adult member of a household under a Scheme
of any period beyond the period guaranteed under
sub-section (1), as may be expedient.
(2016) 1 LAW
56
(2016) 1 LAW
percentage of the Labour Budget presented by the

State Government. It is submitted that in the
financial year 2014-15 the agreed to Labour
Budget was 78% of the Labour Budget and for
the financial year 2015-16 the agreed to Labour
Budget was 75% of the Labour Budget. This is
the informal cap on funds adverted to by learned
counsel.
8. It is submitted that the consequence of this
informal cap is that the State Governments do not
have an adequate fund at their disposal and
because of a lack of funds, they are unable to
encourage voluntary unskilled manual labour.
Resultantly, they cannot reach the target of 100
days of employment per household per year.
Since there is a shortage of the workforce
caused by a lack of funds, the State Governments
are compelled to drop some development works.
In other words, fiscal constraints result in a
vicious cycle adversely impacting employment
and development.
9. The third prayer therefore relates to an
additional consequence of a shortage of funds and
a depleted workforce. The consequence, as
projected by learned counsel, is that due to fiscal
constraints, the unskilled manual labour put in is
not duly compensated by payment of wages in
time, the excuse of the State Governments being
a lack of funds. Consequently, the pending wage
bill continues to rise and that increasing liability
actually makes a complete mockery of the
Scheme and the NREG Act since the dues are
cleared much later than required by law. This is a
modern form of begar and is contrary to the spirit of
Article 23 of the Constitution.
10. The fourth prayer made under this heading is
for the Government of India to increase the
minimum statutory obligation of 100 days
employment per rural household by another 50
days for drought affected States for the year
2016-17 and to release the additional financial
requirements well in time.
11. Responding on behalf of the Union of India,
the Joint Secretary in the Ministry of Rural
Development ably assisted us on facts on this
ISC-175
issue. She is extremely well-versed in the subject

and we acknowledge her valuable assistance in
understanding the point of view of the Government
of India.
12. The Government of India acknowledges that
the minimum guaranteed employment is 100 days
in a year in terms of the NREG Act, but that it is
voluntary. That apart, it is submitted that given
the magnitude of the effort required, it is not easy
to achieve the target. It is not denied that job
cards have been issued to about 13.26 crore
households all over the country and the number
of active job cards is about 5.72 crores and the
total households that have worked in the financial
year 2015-16 is about 4.77 crores. The total
number of households that have been provided
100 days of employment in the year 2015-16 is
said to be 47,06,129 (as on 19th April, 2016) and
in the drought affected States the number of such
households is said to be 27,64,508 (as on 19th
April, 2016). The petitioner has different figures
as on a different date but it is not necessary to
decide which set of figures is correct since the
Government of India believes that in view of the
large numbers, the implementation of the Scheme
is dependent upon the efforts of the State
Governments. The Government of India can only
persuade the State Governments to reach the
minimum statutory guarantee of 100 days
employment. It is submitted that as a result of this
persuasion, employment provided per household
at the national level is 47 days which is the
highest achieved in the last six years. As far as
the drought affected States are concerned, the
average days of employment provided per
household is 46.4 days. Based on this, it is
submitted that all efforts are being made to
faithfully implement the Scheme in spirit and no
effort is spared in this regard.
13. With regard to the informal capping of the
Labour Budget, it is submitted that in terms of
Section 14(6) of the NREG Act4 the District
4
57
14. District Programme Coordinator (1) to (5) xxx

(6) The District Programme Coordinator shall prepare
in the month of December every year a labour
ISC-176
Programme Coordinator (who is usually the

Collector in the district), prepares a district
specific budget in December for the coming
financial year. This budget contains the details of
anticipated demand for unskilled manual work in
the district. The district budgets for the State are
then collated at the State level and the State
Government prepares its Labour Budget. This is
then communicated and presented to the
Government of India in the Ministry of Rural
Development which then examines it in the
Programme Division in the Ministry in
consultation
with
the
concerned
State
Governments. Thereafter, the budget is finalized
by an Empowered Committee headed by the
Secretary in the Ministry of Rural Development.
It is submitted that the Labour Budget is
essentially a tool for the financial management of
funds released and is purely indicative. What the
Empowered Committee does is to prepare a
budget based on the performance of the State
Government and other related criteria and arrive
at a somewhat more realistic budget, which too is
indicative.
14. It is submitted that there is no cap on the
expenditure and States may exceed the budget
approved by the Empowered Committee after
seeking approval of the said Ministry. A
comparative statement of expenditure incurred
over the last four financial years has been placed
before us and a perusal thereof does show that
there has been a fluctuation in expenditure over
the years as follows:
15. With regard to the shortage of funds, it is
submitted that the Ministry of Rural Development
has been in touch with the Ministry of Finance to
ensure that there is no such shortage. While a
request was made for the release of Rs. 5,000
crores to the Ministry of Finance what was in fact
released is only Rs. 2,000 crores. There is

therefore a tacit admission that the Ministry of
Finance does not release funds in adequate amounts
or in time for the effective implementation of the
Scheme. In her presentation, the Joint Secretary
in the Ministry of Rural Development submitted
that efforts are also being made through the
Ministry of Agriculture for the release of funds.
16. It is submitted that notwithstanding this, some
States have in fact exceeded the budget approved
by the Empowered Committee. There is therefore
no question of any informal capping of funds.
17. With regard to the pending wage bill under
the Scheme, it is admitted that till 31st March,
2016 there is a pending balance of about Rs. 8,000
crores. However, it is stated in the fourth affidavit
filed by the Government of India on or about 11th
April, 2016 that an amount of Rs. 11,030 crores
will be released to the States within one week
subject to fulfillment of standard conditions by
the States. This will take care of the pending
wage liability of Rs. 7,983 crores as on 31st
March, 2016 for the financial year 2015-16. This
includes the wage liability of Rs. 2,723 crores in
the ten drought affected States that we are
concerned with where the Ministry of Rural
Development has allowed additional 50 days of
employment to the concerned households. It is
further stated in the affidavit that an amount of
Rs. 3,047 crores will be released to the States for
implementing the Scheme in April 2016
(inclusive of wages and material component).
The pending liability of the material component
of Rs. 4,359 crores for the financial year 2015-16
(as on 31st March, 2016) will be released in June,
2016. In other words, it is admitted that for the
financial year 2015-16 there is an existing wage
and material component liability in excess of
Rs.12,000 crores.
budget for the next financial year containing the

details of anticipated demand for unskilled
manual work in the district and the plan for
engagement of labourers in the works covered
under the Scheme and submit it to the district
panchayat.
(2016) 1 LAW
58
(2016) 1 LAW
18. As far as the release of funds for 2016-17 is

concerned, it is submitted by learned counsel for
the petitioner that in terms of the Master Circular
under the Scheme, funds are required to be
released in two tranches, the first tranche in the
first week of April (for the period 1st April to 30th
September) and the second tranche in the first
week of October (for the period 1st October to
31st March). It is submitted that therefore the
release of Rs. 3,047 crores for implementing the
programme only for April 2016 is contrary to the
Master Circular.
19. It is explained in the fourth affidavit of the
Government of India that the first tranche is
actually released in two parts. The first part of the
first tranche is released in the first week of April
because of the vote on account while the second
part of the first tranche is released in June after
the regular budget is passed in Parliament. It is,
therefore, submitted that while there has been a
delay in the release of funds, that has now been
taken care at least for the financial year 2015-16
(with regard to the wage bill) and for the month
of April (both wage bill and material component)
in the financial year 2016-17.
20. With regard to implementing and extending
the Scheme for an additional 50 days in drought
affected States (over and above the guarantee of
100 days) we are informed by the Joint Secretary
that in the drought affected States, employment is
guaranteed for 150 days in a year and funds will
be made available to every household whose
adult members volunteer to do unskilled manual
work under the Scheme. The extension of the
Scheme for a period of 50 days over and above
100 days is therefore now not an issue.
ISC-177
unemployment allowance. Consequently, the

NREG Act provides for a guarantee of employment,
payment for the work within a week and in any event
within a fortnight, and if employment is not provided
then a payment of unemployment allowance. What if
the payment of wages is delayed in the first
instance?
22. The Guidelines on Compensation for delayed
wage payment circulated by a letter dated 12th
June, 2014 by the Ministry of Rural Development
draws attention to paragraph 29 of Schedule II of
the NREG Act which provides that the workers
are entitled to receive delay compensation at a
rate of 0.05% of the unpaid wages per day for the
duration of the delay beyond the sixteenth day of
the closure of the Muster Roll. Guideline No.2 in
this regard reads as follows:2. Compensation due to delay in payment of wages
Para 29, Schedule II of MGNREGA 2005 has
laid down a detailed procedure for establishing a
delay compensation system. As per the system
MGNREGA workers are entitled to receive delay
compensation at a rate of 0.05% of the unpaid
wages per day for the duration of the delay
beyond the sixteenth day of the closure of the
MR.
The relevant part of paragraph 29 of Schedule II

of the NREG Act reads as follows:
29. Wage payment (1) In case the payment of
wages is not made within fifteen days from the

date of closure of the muster roll, the wage
seekers shall be entitled to receive payment of
compensation for the delay, at the rate of 0.05%
of the unpaid wages per day of delay beyond the
sixteenth day of closure of muster roll.
(a) Any delay in payment of compensation
beyond a period of fifteen days from the date it
becomes payable, shall be considered in the same
manner as the delay in payment of wages.
(b) to (f) xxxx
(2) Effective implementation of sub-paragraph
(1) shall be considered necessary for the
purposes of the section 27 of the Act.
21. A review of the NREG Act indicates that

under Section 3(3) thereof after the work is done,
the disbursement of wages shall be on a weekly
basis and in any event within a fortnight after the
date on which the work is done. However, if no
work is provided to an applicant within 15 days,
then as per Section 7 of the NREG Act the
applicant shall be entitled to receive an
23. The meat of the matter lies in three issues:

(i) Informal capping of funds through the Labour
Budget and the agreed to budget process;
(ii) Delayed release of payments both for wages
59
ISC-178
and materials; and (iii) Ineffective monitoring of

the Scheme.
24. As far as the informal cap on funds is
concerned, no doubt a process has to be followed
by the Government of India for the release of
funds. The issue really is one of accepting a
budget presentation as it is made by the State
Government. The Government of India believes
that the budget presentation cannot be accepted as
it is and the Empowered Committee must consider
the totality of facts and take a final decision.
25. It seems to us that a comparative table on the
annual demand made by the States and the final
decision of the Empowered Committee must be
available, but the relevant figures have not been
placed before us. However, during the course of
hearing, it was the admitted position that there is
a reduction from the demand made to the actual
approval and that is based, inter alia, on the
performance of the State Government in
implementing the Scheme. This is also apparent
from a reading of paragraph 7.1.1 of the Master
Circular (FY 2016-2017) Guidance for Programme
Implementation issued by the Ministry of Rural
Development of the Government of India.5
26. There is, therefore, a chicken and egg situation
the release of funds by the Government of India
is low because the performance of the State
Government is poor and the performance of the
State Government is poor because the release of
funds by the Government of India is low. The
the State will cross the approved Labour Budget

for 2016-17 without the prior approval of the
Ministry.
28. It seems to us that the petitioner is perhaps
reading too much into these Minutes. The reason
we say so is because the learned Additional
Solicitor General has drawn out attention to a
subsequent letter dated 11th April, 2016 sent by
the Secretary in the Ministry of Rural
Development to the Chief Secretary of about 10
States (including Madhya Pradesh) wherein it is
categorically stated that: the agreed to Labour
Budget for 2016-17 does not imply that work
cannot be provided beyond the Labour Budget if
there is a genuine demand for work. Also, in the
fourth affidavit filed by the Union of India it is
stated as follows:
8. That there has been no restriction on
registration of demand for work and states have
been allowed to go beyond estimated labour
budget in FY 2015-16. The labour budget is just
a rough estimation of the demand and is one of
the tools for financial management.
9. That 13 States i.e. West Bengal, Uttarakhand,
Odisha, Meghalaya, Uttar Pradesh, Assam,
Rajasthan, Nagaland, Kerala, Sikkim, Gujarat,
Punjab and Tripura have generated person-days
beyond the estimated labour budgets for FY
2015-16. These states include three drought
affected states namely Odisha, Uttar Pradesh and
Rajasthan.
29. Keeping the above in mind and the submissions

made, it appears to us that there is no informal
capping of funds although it does appear that the
Government of India is not prone to easily release
funds for the projects under the Scheme. This
really takes us to the second issue namely the
delayed release of payments both for wages and
materials.
suffering is of the unemployed unskilled manual

labourer as an individual and the society as a whole.
27. Regarding the informal cap on funds, learned

counsel for the petitioner sought to substantiate
his contention by referring to the Minutes of the
meeting of the Empowered Committee held on
21st March, 2016 for the State of Madhya Pradesh
for FY 2016-17. Paragraph 4 of the Minutes is
illustrative of the view of the Government of
India and this records: Under no circumstances,
5
30. According to the petitioner delayed release of

payments has an adverse impact in the sense that
it acts as a disincentive to a person taking on any
work under the Scheme. If a person does some
work under the Scheme and is not sure when he
or she is likely to get the payment, there will
7.1.1 Funds are released to the States/UTs normally in two

tranches on the basis of agreed to Labour Budget (LB)
and the performance of the States/UTs during the year till
NEFS comes into effect.
(2016) 1 LAW
60
(2016) 1 LAW
undertaking famine relief work and to persons

affected by drought and scarcity conditions since
that would cripple the potential to provide
employment to the affected persons. Rejecting
this contention, Justice Bhagwati held:
definitely be some reluctance to seek employment

under the Scheme.
31. With reference to FY 2016-17 the Union of
India states in the fourth affidavit filed on or
about 11th April, 2016 that an amount of
Rs.11,030 crore will be released to the States
within one week subject to certain conditions and
the release will take care of the pending wage
liability of Rs.7,983 crore (as on 31st March,
2016) pertaining to FY 2015-16. This is a clear
when the State undertakes famine relief work

with a view to providing help to the persons
affected by drought and scarcity conditions, it
would be difficult for the State to comply with
the labour laws, because if the State were
required to observe the labour laws, the potential
of the State to provide employment to the
affected persons would be crippled and the State
would not be able to render help to the maximum
number of affected persons and it was for this
reason that the applicability of the Minimum
Wages Act, 1948 was excluded in relation to
workmen employed in famine relief work. This
contention, plausible though it may seem is, in
my opinion, unsustainable and cannot be
accepted. When the State undertakes famine relief
admission on the part of Government of India that huge

amounts remain unpaid towards wages. The
unfortunate part is that an amount of Rs. 2,723 crore
from this is with respect to 10 drought affected States
where the unemployed perhaps need their wages the
most.
32. In Sanjit Roy v. State of Rajasthan6 this Court

held that providing labour for less than the minimum
wage amounts to forced labour and as such violates of
Article 23 of the Constitution. It was said by Justice
work it is no doubt true that it does so in order to

provide relief to persons affected by drought and
scarcity conditions but, nonetheless, it is work which
enures for the benefit of the State representing the
society and if labour or service is provided by the
affected persons for carrying out such work, there is no
reason why the State should pay anything less than the
minimum wage to the affected persons. Whenever
any labour or service is taken by the State from any
person, whether he be affected by drought and scarcity
conditions or not, the State must pay, at the least,
minimum wage to such person on pain of violation of
Article 23. (emphases ours)
Bhagwati as follows:
where a person provides labour or service to
another for remuneration which is less than the
minimum wage, the labour or service provided by him
clearly falls within the meaning of the words forced
labour and attracts the condemnation of Article 23.
Every person who provides labour or service to
another is entitled at the least to the minimum
wage and if anything less than the minimum
wage is paid to him, he can complain of violation
of his fundamental right under Article 23 and ask
the court to direct payment of the minimum wage
to him so that the breach of Article 23 may be
abated.
34. Justice Pathak concurred with the view of

Justice Bhagwati but preferred to rest his decision
on a breach of Article 14 of the Constitution and
not Article 23 thereof. Justice Pathak held:
What we are concerned with in the present case is

not strictly payment less than the minimum wage
but delayed payment to crores of people. We can
The circumstance that employment has been

given to persons affected by drought and scarcity
conditions provides only the reason for extending
such employment. In other words, the granting of
relief to persons in distress by giving them
employment constitutes merely the motive for
giving them work. It cannot affect their right to
what is due to every worker in the course of such
employment. The rights of all the workers will
be the same, whether they are drawn from an
area affected by drought and scarcity conditions
or come from elsewhere. The mere circumstance
understand delayed payment of a few days or weeks to a

few people, but in this case it is delayed payment of a
few weeks (if not more) to lakhs of people. Given the
enormous number of persons involved, this is

really unfortunate.
33. In Sanjit Roy, a strange submission was made

by the State. It was submitted that it would not be
possible to pay the minimum wage to persons
6
ISC-179
(1983) 1 SCC 525

61
ISC-180
that a worker belongs to an area effected by

drought and scarcity conditions can in no way
influence the scope and sum of those rights. In
comparison with a worker belonging to some
other more fortunate area and doing the same
kind of work, is he less entitled than the other to
the totality of those rights? Because he belongs
to a distressed area, is he liable, in the
computation of his wages, to be distinguished
from the other by the badge of his misfortune?
The prescription of equality in Article 14 of the
Constitution gives one answer only, and that is a
categorical negative.
would want to work without wages or at least

work with an uncertainty in timely receipt of
wages. It just does not stand to reason.
39. The Union of India has also stated in the
fourth affidavit that an amount of Rs. 3,047 crore
will be released to the States for implementing
the Scheme in April 2016 and that this amount
would be inclusive of both the wage and material
components.
40. In terms of the Master Circular (2016-17) the
first tranche of the agreed to Labour Budget is
required to be released in April 2016 (for the
period ending in September). In terms of
paragraph 7.1.2 of the Master Circular the release
would be made after adjusting for unspent
balance available with the Districts/States and
considering the pending liabilities if any.7 As is
apparent from the fourth affidavit filed by the
Government of India the possibility of any
unspent balance perhaps does not exist but what
does exist is the pending liabilities. Therefore, the
amount that is released in the first tranche would
actually be much less than the required amount
for the first six months of the financial year since
the pending liabilities themselves are more than
Rs. 12,000 crore. Clearly the implementation of
the Scheme in the first six months of the financial
year 2016-17 would begin with a deficit and the
actual amount required for the first six months of
the financial year (even as per the agreed to
Labour Budget) would not be fulfilled. In our
opinion, this is hardly any encouragement to
persons willing to take advantage of the Scheme.
41. The fourth affidavit goes on to say that the
first tranche will be released in two installments
the first installment being released in April 2016
35. It is quite clear, therefore, that when the rights

of tens of thousands of people are affected by delayed
payment of their legitimate dues, there is a clear
constitutional breach committed by the State be it
the Government of India or a State Government.
36. As mentioned above, a worker is entitled to
compensation @ 0.05% per day for delayed
payment of the wages due. We are quite pained to
note that the Government of India has made no
provision for this compensation while releasing
the wages for 2015-16 of Rs. 7,983 crores. This is
extremely unfortunate and certainly does not behove a
welfare State in any situation, more so in a drought
situation. Social justice has been thrown out of the
window by the Government of India.
(emphases ours)
37. To make matters worse, the Union of India

has admitted in the fourth affidavit that the
material component of FY 2015-16 (as on 31st
March, 2016) is Rs. 4,359 crore for the entire
country which includes the material liability of
Rs. 1,995 crore in the 10 drought affected States.
This amount, according to Government of India
will be released in June 2016. Why should there
be a delay in this?
38. We are unable to appreciate the unconscionable
delay on the part of the Government of India in the
release of funds both under the wage component as well
as under the material component. It is quite clear,
and there is no worthwhile justification

forthcoming from the learned Additional Solicitor
General, that delay in payment of wages acts as a
disincentive to those persons who are intending to
take the benefit of the Scheme. We have not been
given any explanation whatsoever why a person
(2016) 1 LAW
62
1st tranche is released to States/Districts in the month of

April. The quantum of 1st tranche is based on the number
of person days projected by the State/UT for the first six
months of the year (up to September) in the Labour
Budget. However, it would not exceed 50 percent of the
total person days agreed to in the Labour Budget. The
first tranche is released after adjusting unspent balance
available with the districts/States and considering the
pending liabilities, if any.
(2016) 1 LAW
ISC-181
Employment Guarantee Council (for short the

CEGC).8 As per Section 11 of the NREG Act,
which would apparently take care of the

implementation of the Scheme for the month of
April and the second tranche would be released in
June 2016 after the regular budget is passed in
Parliament. The reason given in the fourth
affidavit for the release of the first tranche in two
installments is because of the vote on account. It
is a matter of common knowledge that the annual
budget is presented every year on the last day of
February and it naturally takes time for the
budget proposals to be accepted by Parliament
and hence the need for a vote on account. That
being so it is rather odd that the Master Circular
proceeds on the basis that the entire quantum of
the first tranche will be released in April 2016
something that is apparently not possible. There
is no mention of any vote on account in the
Master Circular and to this extent an incorrect
picture of the release of funds is held out. All that
we can say is that this is an unfortunate way of
implementing a social welfare Scheme intended
for the benefit of unemployed persons.
42. We are informed by the Joint Secretary that
the Labour Budget for 2016-17 is calculated on
314 crore person days of employment. This has
been scaled down by the Empowered Committee
and the agreed to Labour Budge for 2016-17 is
calculated on 217 crore person days of
employment. Therefore, (roughly) only 70% of
the Labour Budget is accepted by the Empowered
Committee based on the past performance of the
States. On this basis, (roughly) about Rs. 20,000
crores ought to be released by the Government of
India in the first tranche towards financial
implementation of the Scheme. The amount
actually released is only Rs. 3047 crores. The
implicit assurance is that the balance amount of
about Rs. 17,000 crores will be made over the
States in June, 2016 in the second installment of
the first tranche after the annual budget is approved
by Parliament. We can only wait and hope.
43. As far as the third issue of monitoring the
Scheme is concerned the NREG Act makes
adequate provision in this regard. Section 10 of
the NREG Act provides for constituting a Central
10. Central Employment Guarantee Council
(1) With effect from such date as the Central Government

may, by notification specify, there shall be constituted a
Council to be called the Central Employment Guarantee
Council to discharge the functions, and perform the
duties, assigned to it by or under this Act.
(2) The headquarters of the Central Council shall be at
Delhi.
(3) The Central Council shall consist of the following
members to be appointed by the Central Government,
namely:
(a) a Chairperson;
(b) not more than such number of representatives of
the Central Ministries including the Planning
Commission not below the rank of Joint Secretary
to the Government of India as may be determined
by the Central Government;
(c) not more than such number of representatives of
the State Governments as may be determined by
the Central Government;
(d) not more than fifteen non-official members
representing
Panchayati
Raj
Institutions,
organisations of workers and disadvantaged
groups :
Provided that such non-official members shall include
two chairpersons of District Panchayats nominated by
the Central Government by rotation for a period of
one year at a time :
Provided further that not less than one-third of the
non-official members nominated under this clause
shall be women :
Provided also that not less than one-third of the nonofficial members shall be belonging to the Scheduled
Castes, the Scheduled Tribes, the Other Backward
Classes and Minorities;
(e) such number of representatives of the States as the
Central Government may, by rules, determine in
this behalf;
(f) a Member-Secretary not below the rank of Joint
Secretary to the Government of India.
(4) The terms and conditions subject to which the
Chairperson and other members of the Central
Council may be appointed and the time, place and
procedure of the meetings (including the quorum
at such meetings) of the Central Council shall be
such as may be prescribed by the Central
Government.
63
ISC-182
the functions of the CEGC include, amongst

others, establishing a central evaluation and
monitoring system; advising the Central
Government in all matters concerning the
implementation of the NREG Act; monitoring the
implementation of the NREG Act; and preparing
annual reports to be laid before Parliament by the
Central Government on the implementation of the
Act. It is not clear to us whether the CEGC is in
existence and whether any monitoring mechanism
is in place. A visit to the official website of the
NREG Act9 indicates that as of now there is no
CEGC in place.
44. Similarly, the State Government is required to
constitute a State Employment Guarantee Council
under Section 12 of the Act.10 The duties and
9
functions of the State Council include advising

the State Government on all matters concerning
the Scheme and its implementation in the State,
monitoring the implementation of the NREG Act
and preparing an annual report to be laid before
the State Legislature by the State Government.
Again we have not been informed of the
existence of any such State Council or whether
the NREG Act is being faithfully implemented
both by the Government of India and by the State
Government.
45. At this stage, we may mention that the Joint
Secretary in the Ministry of Rural Development
informed us that the Government of India has
introduced a potentially exciting Scheme for
prompt payment of wages to the persons availing
the benefit of the Scheme. A system called the
National Electronic Fund Transfer System or NeFMS system is in place in about a dozen States.
The objective of this system is to ensure that the
wage component under the Scheme is released
directly to the account of the person concerned
based on a Funds Transfer Order to be generated
by the implementing agencies of the States. The
benefit of the system is that the person will be
assured of timely payment of wages after the pay
order generation. We have been informed that the
www.nrega.nic.in
10
12. State Employment Guarantee Council
(1) For the purposes of regular monitoring and reviewing

the implementation of this Act at the State level,
every State Government shall constitute a State
Council to be known as the (name of the State)
State Employment Guarantee Council with a
Chairperson and such number of official members as
may be determined by the State Government and not
more than fifteen non-official members nominated by
the State Government from Panchayati Raj
institutions,
organisations
of
workers
and
disadvantaged groups :
Provided that not less than one-third of the non-official
members nominated under this clause shall be women :
Provided further that not less than one-third of the nonofficial members shall be belonging to the Scheduled
Castes, the Scheduled Tribes, the Other Backward
Classes and Minorities.
(2) The terms and conditions subject to which the
Chairperson and members of the State Council may
be appointed and the time, place and procedure of the
meetings (including the quorum at such meetings) of
the State Council shall be such as may be prescribed
by the State Government.
(3) The duties and functions of the State Council shall
include
(a) advising the State Government on all matters
concerning the Scheme and its implementation in
the State;
(b) determining the preferred works;
(2016) 1 LAW
(c) reviewing the monitoring and redressal mechanism

from time to time and recommending
improvements;
(d) promoting the widest possible dissemination of
information about this Act and the Schemes under
it;
(e) monitoring the implementation of this Act and the
Schemes in the State and coordinating such
implementation with the Central Council;
(f) preparing the annual report to be laid before the
State Legislature by the State Government;
(g) any other duty or function as may be assigned to it
by the Central Council or the State Government.
(3) The State Council shall have the power to undertake
an evaluation of the Schemes operating in the State
and for that purpose to collect or cause to be collected
statistics pertaining to the rural economy and the
implementation of the Schemes and Programmes in
the State.
64
(2016) 1 LAW
Ne-FMS system is in place in several States with

effect from 12th April, 2016. Although it is early
days, we are told by the learned Additional
Solicitor General that the system is working quite
satisfactorily, although this is disputed by the
petitioner who says that the system was first
introduced in Kerala from 1st January, 2016 but
even then there are huge delays in making the
payment of wages.
ISC-183
advantage of the Scheme. A success rate

below 50% is nothing to be proud of.
5. The Government of India is directed to
ensure that the Central Employment
Guarantee Council is immediately
constituted under Section 10 of the
NREG Act. In any event, the Central
Employment Guarantee Council should
be constituted within a maximum of 60
days from today.
proactively
request
the
State
Governments to establish the State
Employment Guarantee Council under
Section 12 of the Act within a period of
45 days from today. The effective
implementation of the NREG Act will
certainly not be possible unless these
monitoring and reviewing authorities
faithfully and urgently established by the
Government of India and the State
Governments.
7. Since the NREG Act is a social welfare and
social justice legislation the Government
of India must ensure that its provisions
are faithfully implemented by all
concerned.
*****
DIRECTIONS
46. On the basis of the provisions of the NREG

Act and the material placed before us, it is
appropriate that the following directions are
issued:
1. The State Governments ought to present a
realistic budget which should then be
pragmatically
considered
by
the
Empowered Committee. This procedure
will avoid any unnecessary controversy
between the State Governments and the
Government of India about the release of
funds under the Scheme.
release to the State Governments
adequate funds under the Scheme in a
timely manner so that the workforce is
paid its wages well in time. It is
regrettable that the pending wage bill for
2015-16 was cleared only during the
pendency of this petition. The
Government of India must shape up in
this regard.
ensure that compensation for delayed
payment is made over to the workers
whose wages have been delayed beyond
15 days as postulated by paragraph 29 of
Schedule II of the NREG Act and the
Guidelines for Compensation formulated
pursuant thereto.
4. Both the State Governments and the
Government of India are directed to
make all efforts to encourage needy
persons to come forward and take
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65
ISC-184
Swaraj Abhiyan-IV v. Union of India & Ors. [IND-SC]
(2016) 1 LAW ISC-184
law. The State cannot say that it is not bound to

follow the law and cannot adhere to statutory
provisions enacted by Parliament and create a
smokescreen of a lack of finances or some other
cover-up. The rule of law binds everyone, including
the State.

AT NEW DELHI
2. In this decision, we concern ourselves with the

remaining substantive issues raised by the
petitioner Swaraj Abhiyan.

Swaraj Abhiyan - (IV)
Versus
Petitioner
RELIEF FOR CROP LOSS
Respondents.
3. The grievance of Swaraj Abhiyan is that the

Crop Input Advance or the Agricultural Input
Subsidy offered by the Government of India 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 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 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 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 areas. Reference in this regard
is made to a letter dated 8th April, 2015 issued by
the Ministry of Home Affairs (Disaster
Management Division). This is said to be clearly
insufficient.
CORAM:
MADAN B. LOKUR, J.
N.V. RAMANA, J.
***
SHORT NOTES: This is the fourth in the series of the four
and deals with the remaining substantive issues raised by the
petitioner Swaraj Abhiyan and in the writ petition itself is
kept open keeping the possibility of issue of continuing
mandamus in view.
***
JUDGMENT
MADAN B. LOKUR, J.
1. In three earlier decisions concerning the
prevailing drought or drought-like situation, we
had stressed the obligation of the Government of
India complying with all the provisions of the
laws enacted by Parliament, namely, the Disaster
Management Act, 2005, the National Food
Security Act, 2013 and the Mahatma Gandhi
National Rural Employment Guarantee Act,
2005. This will, of necessity, require establishing
and constituting bodies and authorities provided
for by law and making available the necessary
finances for implementing and abiding by the

(2016) 1 LAW
66
(2016) 1 LAW
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 is
33% and above. The amount should be realistic
and there is no reason why an arbitrary figure of
33% 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.
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.
7. In response, the Union of India 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 of
alleviating the adverse impact of a disaster.
Similarly, under Section 48 of the Disaster
Management Act, the State Governments have
constituted a fund called the State Disaster
Response Fund (SDRF).
8. The 14th 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 revised on 8th
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 8th April, 2015 to Rs. 6,800 per
hectare where a crop loss is 33% and above in
respect of rain-fed areas. Similarly, there has
been an upward revision in respect of irrigated
areas and perennial areas. It is therefore
submitted that adequate provision has been made
in this regard and the State Governments, even in
the drought affected States, are entitled to utilize
ISC-185
the funds available in terms of the norms laid

down.
9. It is further submitted that in addition to the
amount recommended by the 14th Finance
Commission towards the SDRF, the Government
of India has also approved a sum of about Rs.
12,774 crores 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.
10. It is further submitted that the norms are not a
compensatory measure but are a measure of
immediate relief. Therefore, to require payment
of the exact amount of subsidy as determined by
the Directorate of Economics and Statistics in the
Ministry of Agriculture 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
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 of India from this
provision.
FODDER BANKS
12. The grievance of the petitioner in this regard

is that even 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 2016-17. 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 of India had issued a detailed Advisory
on 12th September, 2012 and that should be
implemented in letter and spirit.
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
67
ISC-186
facilitate procurement and storage of fodder from

surplus areas or areas where rainfall is
satisfactory and this fodder can be then
distributed to cattle camps and deficient areas. To
reduce the cost of 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 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 Stock Mission and one of the submissions of this Mission is feed and fodder
development. The State Governments can avail
financial assistance under the sub-mission.
16. In addition, the Central Government has
approved an Additional Fodder Development
Programme as a special scheme of the Rashtriya
Krishi Vikas Yojna for the year 2015-16 to
mitigate the adverse impact of drought in drought
affected districts/blocks of the country. Funds
have been allocated for this purpose to various
States as per the cost norms.
deferment of arrears and re-structuring of loans

by all the concerned banks, particularly in respect
of farmers in drought affected areas.
18. In response, it is stated by the Union of India
that the Reserve Bank of India has issued a Master
st
Circular on 1st July, 2015 (updated up to 21 August,
2015) while NABARD has issued a circular on 26th
August, 2015 addressed to all Cooperative Banks
and Regional Rural Banks recommending a
moratorium of one year in re-structuring the 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 restructuring any loan including any over-due loan
subject to the guidelines of the Reserve Bank of
India and in accordance with their internal policy
guidelines.
19. It is quite apparent from the submissions

made and the reliefs claimed that essentially the
concerns raised pertain to policy, whether economic and
fiscal policy or policy impacting on drought effected
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.
CROP LOAN RE-STRUCTURING AND RELIEF
17. In this regard, the submission of the petitioner

is that deferment of arrears and re-structuring of
loans is an important aspect of relief for the
drought affected farmers and necessary directions
should be given to Rural and Cooperative NonScheduled Banks, Scheduled Banks including
Nationalized Banks etc. to abide by the guidelines
issued by the Reserve Bank of India. The State
Level Bankers Committees have considerable
discretion in the matter of deferment of arrears
and re-structuring of loans with the result that restructuring has not taken place as per the
guidelines in several States. The prayer of the
petitioner therefore is to have a more realistic
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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 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.
68
(2016) 1 LAW
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.
22. Fairly recently, in Essar Steels Ltd. v. Union of
1
India this Court summed up the position in law
as follows:
ISC-187
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 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 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 of India and the States to set up
their respective watch-dog committees that will
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
Broadly, a policy decision is subject to judicial

review on the following grounds:
(a) if it is unconstitutional;
(b) if it is dehors the provisions of the Act and
the Regulations;
(c) if the delegatee has acted beyond its power of
delegation;
(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 for Public Interest Litigation v.
2
Union of India and some earlier decisions such as
3
M.P. Oil Extraction v. State of Madhya Pradesh ,
worthy, but often it is the effective implementation and

monitoring that is lacking.
26. Under the circumstances, we are inclined to

issue only one 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
Villianur Iyarkkai Padukappu Maiyam v. Union of

4
India and of course the Constitution Bench
decision in Peerless General Finance and
5
Investment Co. Ltd. v. Reserve Bank of India . For
the present purposes, the summation provided in

Essar Steels is quite clear:
the benefit of the people of our country and not for the
benefit of any stranger.
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 provisions of the Constitution of
India.
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 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.
2016 (4) SCALE 267 = MANU/SC/0431/2016

2016 (3) SCALE 712 = MANU/SC/0372/2016
3
(1997) 7 SCC 592
4
(2009) 7 SCC 561
5
(1992) 2 SCC 343
2
69
ISC-188
Learned counsel for the petitioner submits that it

is necessary for us to direct the 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 of India and the State
Governments are implemented in their true spirit.
28. Learned Additional Solicitor General
vehemently opposes this plea on the ground that
the appointment would serve no useful purpose.
He submits that it is not as if the officers in the
Government of India 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
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
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 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.
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
(2016) 1 LAW
the State Governments to faithfully implement

the law enacted 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
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
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 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.
33. We adjourn this case to 1st August, 2016 at
2.00 p.m. and direct the Union of India to file a
status report on or before 25th 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.
*****
Analytical
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6
70
Manohar Lal Sharma v. Union of India, (2014) 2 SCC 532
THE UNKNOWN LIFE OF JESUS CHRIST

Nicolas Notovitch
1. A JOURNEY TO THIBET (contd)
immortal beauty. The inhabitants, hitherto

intellectual, handsome, and cleanly, are tending toward
a state of idiocy; being filthy and lazy, and governed by
the lash instead of the sword. The Kashmirians have so
frequently been exposed to pillage and invasion, and
have known so many masters, that they have become
indifferent to everything; spending their time near
The Kashmir, as well as the other provinces

attached to it, such as the Baltistan, the Ladak,
etc., are vassals of England. They formerly made
part of the possessions of the "Lion of Punjab,"
Randjid Sing [Ranjit Singh]; but at his death
English troops invaded Lahore, the capital of the
Punjab, separated Kashmir from the rest of the
empire, and under pretense of hereditary
possession and in consideration of one hundred
and sixty millions of francs, ceded it to GoubabSing [sic Gulab Singh], a relation of the dead
sovereign, on whom was conferred the title of
Maharaja. At the time of my voyage, the reigning
Maharaja was Pertab-Sing, grandson of Goubab,
who resides in Jamooee, on the southern slope of
the Himalayas.
The celebrated "Vale of Kashmir," which is
eighty-five miles in length and twenty-five miles
in breadth, enjoyed its days of true glory and
prosperity during the reign of the Great Mogul,
whose court gathered there to enjoy the rustic
pleasures of the country in the cottages still
standing on the small islands of the lake.
A large number of the Maharajas of
Hindoostan formerly spent the summer months
here also, and took part in the sumptuous round
of festivities given by the Great Mogul; but time
has wrought a wo[e]ful change, and the "happy valley"
their huts or on the river bank gossiping, or

quietly making their celebrated shawls and
cutting designs on gold or silver. The women are
extremely melancholy, and bear an expression of
inconceivable sadness on their features. Misery and
squalor reign everywhere. The fine men and
beautiful women of Kashmir are filthy and

ragged beyond conception; and the dress of both
sexes, in winter and summer alike, consists only
of a long heavy gown, with wide flowing sleeves,
resembling nothing more than a shirt. This garment
is removed only when completely worn out, and neverunder any consideration is it washed, giving the
white turbans of the male population a dazzling

whiteness in contrast with their stained, greasy
gowns. A deep sadness overcomes the traveler as
he notes the contrast between this rich, opulent
country and its ragged inhabitants.
Serinagur (the city of the sun - Srinagar), or Cashmere
[Kashmir] as it is sometimes called from the name
of the country, is the capital and is situated on the
Jhelum, along the bank of which it extends
southward over a distance of five kilometers.
The two-story houses, which shelter a
population of one hundred thousand inhabitants, are
constructed of wood, and stand in close proximity
to the water. The town itself is not more than two
kilometers in breadth, and everybody lives on the
river whose banks are united by ten or twelve
bridges. Steps lead from every house to the
waters of the Jhelum, where nearly the entire day
is spent in ablutions, bathing, and washing
utensils the latter consisting merely of two or
three brass jugs. A portion of the inhabitants practice
the Mohammedan religion, while two-thirds are
Brahmans; there are also a few Buddhists, though
the number is extremely limited.
is now nothing more than a place of resort for

mendicants. Weeds and the moldiness from all
sorts of noxious plants have covered the limpid

water of the lake, the wild juniper bush has
choked all vegetation on the islands, palaces and
pavilions have nothing left but the remembrance
of their dead grandeur, dust and rank growths
overspread the ruins like a mantle. The
surrounding mountains, with their white
pinnacles, seem mournfully sad and patiently
waiting for better days to burst forth in all their
Continued from Law Animated World, the 15 May 2016

issue; emphases in bold ours - IMS.
71
72
The Unknown Life of Jesus Christ (Nicolas Notovitch)
The time had now arrived to begin my

preparations for a journey into the unknown.
Having purchased different kinds of conserves, a
few casks of wine, and many other things found
indispensable in the course of a journey through a
country as sparsely populated as Thibet, I packed
the whole in boxes, hired ten carriers and one
interpreter, bought myself a horse, and fixed the
date of departure for October 27th. To enliven the
road I procured from a Frenchman, Monsiur Peicheau,
three thousand feet high, but which saved both

time and distance.
My first steps into the unknown were marked
by an incident that left a most horrible impression
upon me. The defile of the Sindh, which is sixty miles
long, is particularly celebrated for its inhospitable
inhabitants, among which panthers, tigers, leopards,
black bears, wolves, and jackals abound. The snow
having unfortunately just spread its white mantle

over the summits of the chain, these redoubtable
foes of man had been forced to seek shelter in
their lairs somewhat lower down.
We were silently following the narrow
winding path through the pines and centenary
birch trees, the grinding sound of our footsteps
alone breaking the deep monotonous hush of the
night, when suddenly, in our very midst as it
seemed, a prolonged howl awoke the echoes of
the forest. Our little band stopped short and
listened.
"A panther!" gasped my servant, who stood
trembling by my side.
The small caravan of twelve men stood with
bated breath, paralyzed with fear. I now
remembered that at our last resting place I had
entrusted my revolver to one of the carriers and
given my rifle to another; the thought filled me
with poignant regret and alarm, and I inquired in
a low tone for one of these men. A more terrible
cry rang through the night at this moment, then a
crash like the fall of a heavy body was heard,
succeeded by a shriek of agony that froze the
blood in our veins. We guessed rather than saw
the horrible struggle going on between the
unfortunate man and the famished beast of prey.
"Sahib, take the gun," whispered a voice near
me.
I feverishly clutched the Winchester. But, alas,
I could not see two feet from me. Another cry,
followed by a stifled roar, guided me; and I crept
in its direction, equally divided between my
desire to kill a panther and the horrible dread of
being flayed alive. Nobody dared to move; and it
was not until fully five minutes had elapsed that
one of the men thought of lighting a match.
superintendent of the Maharaja's vineyard, a large dog

which had already accompanied my friends Bonvalot,
Capus, and Pepin, the well-known explorers through
the Pamir. Wishing to shorten the journey by two
days, I started the carriers at dawn from the other

side of the lake, while I crossed by boat, rejoining
the caravan and my horse at the foot of the chain
of mountains that separated the Serinagur Valley
from the Gorge of the Sindh.
Never shall I forget the tortures we endured in
climbing, almost on all fours, to the summit of a peak
three thousand feet high. The carriers were
exhausted and out of breath, and I trembled lest

one of them might roll down the declivity at any
moment with his burden, while my heart fairly
ached at sight of my poor dog, Pamir, who
stumbled along with his tongue lolling out,
whining and falling by the way at every few
steps. I forgot my own fatigue to caress and
encourage the poor animal, who looked at me
piteously, bravely went on a few steps more, and
again fell exhausted.
Night had fallen when we reached the pinnacle
of the mountain, where we greedily flung
ourselves on the snow to quench our thirst.
Having taken a brief rest, we began the descent
through a dense pine forest, hoping to gain the
village of Haiena at the foot of the defile before
the appearance of beasts of prey.
A straight well-kept road leads from Serinagur
to Haiena, going directly north to Ganderbal,
where it turns abruptly to the east, after having
skirted the Sindh and traversed a country of
luxurious vegetation to Kangan, which is six
miles from Haiena; toward which place I was
journeying by a more direct route through a pass
(2016) 1 LAW
72
(2016) 1 LAW
Remembering the dread of fire usually evinced

by wild beasts, I then caught up a few handfuls of
brush-wood and set flame to it.
73
while a last served as courier and guide, as he

frequently went forward to reconnoiter.
The latters name was Chicari, which signifies,
"he who accompanies the hunter and picks up the
game." But owing to his cowardice and utter
ignorance of the country, I dismissed him, with
some of the other men the next morning, retaining
only four carriers with me. I quickly replaced
them with horses, and slowly proceeded toward
the village of Gounde.
Not more than ten feet from us, we then saw

the unfortunate victim stretched on the ground,
his limbs completely torn away by the claws of a
beautiful panther which still crouched unmoved
with a piece of flesh between its jaws. Near by
lay a cask of wine completely crushed.
Scarcely had I shouldered my gun, however,
when the beast of prey sprang to its feet, dropped
its bleeding morsel of food and turned as if ready
to leap upon me; then with a blood-curdling
howl, it suddenly veered about and disappeared in
the thicket.
My coolies, who all this time had been
prostrated to the ground by terror, now gradually
recovered from their fright and prepared to go on.
Having gathered a bunch of dry underbrush,
placed some matches at hand, and cocked our
guns, we hurried toward Haiiena, leaving the
What beautiful nature unfolds itself in the

gorge of the Sindh, and how beloved it is by the
hunter. Besides the larger beasts of prey, there are
also found deer, moufflon, and an immense
variety of birds, among which may be mentioned
the golden, the red, and the snow-white pheasant,
large partridges, and immense eagles.
The villages along the Sindh are not remarkable
for their dimensions, most of them consisting of
but ten to twenty wretched huts, occupied by
ragged families that bear the stamp of poverty.
The domestic animals all belong to an
exceedingly small species.
Crossing the stream at Sambal I stopped near
the Gounde village for a relay of horses. In some
of the small places, I was absolutely refused a
change of horses until I made use of my whip, a
proceeding which at once imposed respect and
obedience. Money also proved a most powerful
agent in attaining this object, inspiring a servile
obedience and a desire to execute my orders that
was truly astonishing. Gold and the lash are the real
remains of the unfortunate Hindoo behind us in fear of

sharing the same fate.
One hour later, we came out of the forest into

the open country. I immediately had my tent put
up under a leafy plane-tree and an enormous fire
built; this being the only means of protection that
could be used against the wild beasts whose
howls came from every direction about us
freezing the blood in our veins. Meanwhile my
dog crouched trembling at my feet; but, once in
the tent, he quickly regained his courage and
spent the rest of the night in incessant barking.
That night was a terrible one to me, as I sat
upright with my rifle clutched tightly in my hand,
listening to the horrible howling and roaring that
filled the air with deafening echoes. A few
panthers approached our camp in response to
Pamir's bark, but none dared to come within
shooting distance.
I had left Serinagur at the head of eleven carriers,
of whom four carried as many casks of wine, four
more the clothes needed for the journey, another
my weajjons, and still another different utensils,
sovereigns of the Orient; without them the Great Mogul

himself could have had no preponderance.
Meanwhile, night was gathering fast and I was

anxious to cross the defile that separates the
villages of Gogangan and Sonamarg, the road
being in a horrible condition and infested with
wild beasts that come to the very doors of the
dwelling houses in search of prey under cover of
night. The spot is fertile and beautiful, yet few
dare make it their home on account of the
frequent visits of the panther among the domestic
animals.
73
74
The country into which I had just penetrated

stands at an altitude of eleven to twelve thousand
feet, descending to a level of eight thousand at
Kargil.
At the extremity of the defile, near Tchokodar,

or Thajwas, I caught sight of two dark masses
which I could not at first distinguish in the
semiobscurity, but which, on closer inspection,
proved to be two bears following a cub on the
roadway. Being alone with my servant the
caravan having remained behind I hesitated
somewhat in attacking them with my single rifle,
but long excursions on the mountains had
strongly developed the instincts of the hunter in
me, and I resolved to brave the dangers. To leap
from the saddle, fire, and reload, without even
verifying the result of the first shot, was the work
of a second. One of the bears sprang toward me,
but a second shot changed his course, and he
disappeared. Still holding my loaded rifle,
I cautiously advanced in the direction in which
I had fired and found a bear lying on its side, with
a young cub playing near. Another shot brought
him down in his turn, and I thus procured two
beautiful skins of jet black.
This meeting delayed us two full hours, and
night had completely fallen when I pitched my
tent near Tchokodar, which I again left at the first
streak of dawn for Baltal, still following the
course of the Sindh.
The magnificent scenery of the "golden
prairie" comes to an abrupt end here with a
village of the same name Tchokodar sona
(gold) and marg (prairie [- path]). The slope of
Zodgi-la is then immediately reached a steep
elevation of eleven thousand five hundred feet
beyond which the entire country assumes a severe,
inhospitable character. My hunting adventures
were now at an end, having seen nothing this side
of Baltal but wild goats. Game might have been
found in plenty by penetrating into the very heart
of these mysterious mountains, but I had neither
the time nor desire to leave the highway on such
dangerous expeditions, and I tranquilly continued
my journey toward Ladak.
What an abrupt transition I experienced, in
passing from the smiling nature and fine population of
A view from Zozi la {Wikipedia}
Srinagar-Zozila-Leh Road {Wikipedia}

1
The ascent of Zodgi-La is extremely difficult,

being an almost perpendicular wall, while, at
some points, the road winds over projecting rocks
not more than a meter in breadth, bordering on a
precipice of unfathomable depth.
(to be continued)
1
Kashmir to the barren gloomy rocks and deformed

beardless inhabitants of the Ladak!
(2016) 1 LAW
74
Zoji La is a high mountain pass in India, Kashmir,

located on the Indian National Highway 1D between
Srinagar and Leh in the western section of the Himalayan
mountain range. Zoji La is 9 km (5.6 miles) from Sonamarg
and provides a vital link between Ladakh and Kashmir.
It runs at an elevation of approximately 3,528 metres
(11,575 ft), and is the second highest pass after Fotu La on
the Srinagar-Leh National Highway. During the IndoPakistani War of 1947, Zoji La was seized by Pakistani
fighters in 1948 in their campaign to capture Ladakh. The
pass was captured by Indian forces on 1 November in an
assault code named Operation Bison, which achieved
success primarily due to the surprise use of tanks, then
the highest altitude at which tanks had operated in
combat in the world {Wikipedia}.
(2016) 1 LAW
Historical inevitability or electoral corruption? [IMS]
75
( Carried from p. 2 )
that this Assembly notes with appreciation the

measures taken by the Government of India to usher
in responsible government, and requests that the
Secretary of State for India be informed of the
desire of the Assembly that the policy of the
government toward achievement of responsible
governance be re-considered again in 1929 and
appropriately amended as needed at the time was
generally accepted and Mr Majumdar accordingly
withdrew his Swaraj resolution.
The Andhra Tour of Mahatma Gandhi was also
Well, as I was browsing through the pages of

Andhra Patrika of olden years to find the factual
information of those days regarding the Andhra
movement as also the relevant and connected
developments of the national movement too, I was
surprised to find that Gandhis birthday was celebrated
and his lifework was applauded, on 30 September 1921,
even editorially, though the same day a life-sketch

of his was published in which his birthday was
correctly given as 2 October 1869. Perhaps this
might have tallied with any Hindu calendar day of
his time of birth, I suppose.
The Andhra Patrika of 30 September 1921 also
reported about a Swaraj Resolution moved by
Mr Mazumdar which was topic of hot and
interesting discussions in the [Imperial Legislative]
Assembly. The Indian members of the Assembly,
especially Mr. Chintamani, were in favor of
abolition of the dual government and introduction
of non-official majority even in the Central
Assembly. However, the official and European
members were not favorably disposed to that end. It
was pointed out by Sir William Wincent that it
would be inappropriate to demand within a short
period of 3-4 months of introduction of the
MontFord reforms brought in by the everconsiderate British government such a drastic
change. He pointed out that the democratic
responsibility devolved on the people till then was
not wide enough and it would take time to gradually
increase the number of electors and also the ambit
of democratic governance in the country. Whereas
all the governments of India right from the days of
Mauryas to Guptas to Moguls etc. were totally
despotic with no reference to any popular mandate
at all, the British rulers were gracious enough to
introduce elements of democratic governance in the
country and the MontFord Reforms were an
important milestone. However, all powers cannot be
transferred to an Assembly devoid of wide and
sufficient popular mandate. Actually out of 250 millions
prominently covered in the pages of Andhra Patrika 30

September 1921. It appears that Mahatma Gandhi
addressed a big meeting attended by about 50,000 people in
Kadapa on 28 September wherein he appealed to the
audience to liberally donate for famine relief work

being conducted by the Congress. It seems some
sort of disturbance and anarchy marred that meeting
and Gandhi had to repeatedly call for the audience
to shun any violent disturbance but remain calm and
make the meeting a success. Later Gandhi went to
Tadipatri and addressed an equally big meeting
there and also a separate meeting held by women of the
town. At both places several persons liberally
donated to the Congress funds and especially
women, respecting the appeal made by Gandhi,
came forward to gift the ornaments on their body to
the Mahatma. Later on the way to Kurnool in train,
the Mahatma and Maulana Azhar Sobhani
accompanying him spoke to the public on the
platforms of Gutti and Guntakal stations. By the
time the train reached Dronachalam there was
immense crowd ready to welcome the Mahatma
with all the noisy slogans. The train reached
Kurnool in the morning of 30 September and the
Mahatma was given a right royal reception by the
people and welcome addresses were presented by
the Municipal Corporation and several other
associations of Kurnool. As it was Mahatmas birthday,
recitations from Vedas and Islamic prayers were made as
Mahatma set foot on the platform. All people were
wearing Khadi clothes. It was reported that as soon
as Mahatma Gandhi left, four Congress activists were
arrested in Kadapa. Sri Harisarvottama Rao sent a
(25 crores) of people in British India, only one million (10

lakhs) had the right to elect their representatives and out of
them too, only 1,82,000 persons voted to elect such
representatives to the Assembly. An Assembly elected
telegram appreciating their service and urged the

people to continue participation in the movement
(to be continued)
braving all repression.
with such a low and insufficient franchise cannot

be vested with all powers of governance. In the end,
a compromise resolution proposed by Mr Wincent
***
75
76
Law Animated World {31 May 2016}
Postal Reg. No. HD/1098/2014-16
FOR YOU O DEMOCRACY!

- Walt Whitman*
Walt Whitman
Come, I will make the continent indissoluble,

I will make the most splendid race
the sun ever shone upon,
I will make divine magnetic lands,
With the love of comrades,
With the life-long love of comrades.
I will plant companionship thick as trees
along all the rivers of America,
and along the shores of the great lakes,
and all over the prairies,
I will make inseparable cities
with their arms about each other's necks,
By the love of comrades,
By the manly love of comrades.
For you these from me, O Democracy,
to serve you ma femme!
For you, for you I am trilling these songs.
Walt Whitman
O CAPTAIN! MY CAPTAIN!
O Captain! my Captain! our fearful trip is done,
The ship has weather'd every rack,
the prize we sought is won,
The port is near, the bells I hear, the people all exulting,
While follow eyes the steady keel,
the vessel grim and daring;
But O heart! heart! heart!
O the bleeding drops of red,
Where on the deck my Captain lies,
Fallen cold and dead.
O Captain! my Captain! rise up and hear the bells;
Rise up for you the flag is flung
for you the bugle trills,
For you bouquets and ribbon'd wreaths
for you the shores a-crowding,
For you they call, the swaying mass,
their eager faces turning;
Here Captain! dear father!
This arm beneath your head!
It is some dream that on the deck,
You've fallen cold and dead.
My Captain does not answer,
his lips are pale and still,
My father does not feel my arm,
he has no pulse nor will,
The ship is anchor'd safe and sound,
its voyage closed and done,
From fearful trip the victor ship
comes in with object won;
Exult O shores, and ring O bells!
But I with mournful tread,
Walk the deck my Captain lies,
Fallen cold and dead.
[*Walter Walt Whitman (b: 31-05-1819; d: 26-03-1892), an
American poet, essayist, and journalist. A humanist, he is
among the most influential poets in the American canon,
often called the father of free verse. Whitman's major work,
Leaves of Grass, was first published in 1855 with his own
money. When he died at age 72, his funeral became a public
spectacle.]
***
AMONG THE MULTITUDE

AMONG the men and women the multitude,
I perceive one picking me out by secret and divine signs,
Acknowledging none else, not parent, wife, husband,
brother, child, any nearer than I am,
Some are baffled, but that one is not
that one knows me.
Ah lover and perfect equal,
I meant that you should discover me so
by faint indirections,
And I when I meet you mean to discover you
by the like in you.
***
NO LABOR-SAVING MACHINE
No labor-saving machine,
Nor discovery have I made,
Nor will I be able to leave behind me any wealthy
bequest to found hospital or library,
Nor reminiscence of any deed of courage for America,
Nor literary success nor intellect;
nor book for the book-shelf,
But a few carols vibrating through the air I leave,
For comrades and lovers.
*****
*****
Owned, Printed and Published by I. Balamani, 6-3-1243/156, M.S. Makta, Opposite Raj Bhavan,
Hyderabad - 500082; Editor: I. Mallikarjuna Sharma; Ph: 23300284; E-mail: mani.bal44@gmail.com
andprinted at Pragati Offset Pvt. Ltd., Red Hills, Hyderabad-500 004 {Ph: 23304835, 23380000}
76

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(2016) 1 LAW

RNI No. APENG/2005/18975

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A world law fortnightly published from Hyderabad, India.

Editor: I. Mallikarjuna Sharma

Volume 12: Part 1

5. Prosecutor v. Jean Pierre

6. Swaraj Abhiyan-I v. Union

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seems to be there at least in our country, as also in the lawyers community

process of compulsory application, payment of Rs. 250/- to 500/- fee, etc. to

HISTORICAL INEVITABILITY OR ELECTORAL CORRUPTION?

Sripadi Venkata Gopala Krishnamma Pantulu

In the Mahasabha first of all resolutions

a similar resolution praising the courage and

many historical achievements of the Andhras and

audience to fearlessly conduct the movement for the

resolution demanding the formation of Andhra State seems

Continued from Law Animated World, 15-05-2016 issue;

Andhra Patrika know not for what reasons.

Law Animated World, 31May 2016

AUTOBIOGRAPHY OF MARTYR RAMPRASAD BISMIL

even used to get surprised as to how I could shape/make

7. The Condemned Cell

with me deserve much applause. You were fully

Continued from Law Animated World, 15 April 2016

Law Animated World, 31 May 2016

Autobiography of Martyr Ramprasad Bismil

All along my life, whatever I did was done so

I, however, am feeling so happy in this cell.

The Government desires to kill me through

And now I have this desire alone that

meaning intense meditation of God I think so said

satirically) are collected and made present here.

And every moment gives this education and

A similar picture was painted in Lahore on

Yesterday, Pakistani security agencies caught

country that instinctively looks to Pakistan for

radical Islamists wouldve been long redundant.

agent or two from Dammam.

Courtesy: Kunwar Khuldune Shahid & http://nation.com.pk/,

Law Animated World, 31 May 2016

Raw Illusions (Kunwar Khuldune Shahid)

know or care whether Keralas Cheraman

How would they know which one to arrest and

China our economic, energy, security and

If only our policymakers addressed the Bengali and

attack was established as an inside job once

Kashmir, Kabul and Chabahar can and will

Law Animated World, 31 May 2016

Collected and Edited by: I. MALLIKARJUNA SHARMA

5 volumes (7 books) running to about 2200 1/8 demy pages

Prosecutor v. Jean Pierre Bemba Gambo [ICrC-Hague: Situation in CAR]

o. V2 in Sibut in the days after the MLCs

641. The Chamber notes that V2, P69, P110, and

(2016) 1 LAW F-113 continued after F-320

VI. LEGAL FINDINGS

640. The Chamber has found :

constituted the sole armed group present in PK12 and

642. Concerning all acts identified above,2032 the

See Section V(C)(3)(a), para. 463.