PUCL Bulletin, 2001

Gujarat high court appoints a ombudsman to oversee relief operations
By Haribhai B. Shah

On the morning of 26th January, 2001 an earthquake of high magnitude more than 7 on Richter scale shook the whole of Gujarat and more particularly the entire Kutch District, leaving thousands dead, injured, crippled, orphaned and homeless. The Government was unprepared to meet such unforeseen natural calamity and still found it difficult through its inadequate machinery to carry out a stupendous task of rescue, relief and rehabilitation of the earthquake victims. The State machinery was in total disarray unable to effectively handle rescue, relief and rehabilitation operations. It is still unable to give any data of the persons who died in the earthquake or the properties which have been destroyed in the earthquake. Total lack of co-ordination, control of administration of the relief operations affecting lakhs of survivors who have been badly affected and who are living in the open since last more than a fortnight. State administration could not match the magnitude of the disaster. However the people of Gujarat rose to the occasion and poured relief materials and helped in rescue operations.

Voluntary organisations and NGOs all came with relief without losing time and were of great help in the hour of need, Kutch Nav Nirman Abhiyan, Janpath Citizens initiative, RSS, Army, BSF and Navy all combined to offer their help all in rescue work and in treating the injured. Their effort was great and commendable. Help came from other states and road towards Bhuj was overcrowded with trucks loaded with relief materials.

Seeing the need and urgency of the situation some people came forward to file a petition in the High Court.

A petition was filed in the High Court of Gujarat by (1) Shri Bipinchandra J. Diwan, former Chief Justice of Gujarat High Court. (2) Shri Balchandra R. Shah, Social Worker, (3) Shri Dushyant Dave, Lawyer, (4) Shri Haribhai B.Shah, Senior Advocate, Gujarat High Court and President of Indian Radical Humanist Association, Gujarat Unit, (5) Mallika Sarabhai, Artist (6) Shri Kartikey Sarabhai, Industrialist and (7) Shri Shaileshbhai Patwari, Industrialist. The petitioners in the main prayed as follows:

The State government to deposit all sums received for relief or rehabilitation of persons affected by the earthquake of 26th January, 2001 by way of Aid, Charity, Loan or otherwise from all persons, private/public agency, Government, International organisations or otherwise including the funds received from the Prime Minister's relief fund or contributed to the Chief Minister's Relief Fund or obtained by levy of any taxes, duty or sub charge and imposed for the said purpose to a separate account and not to mingle the same into the consolidated fund of the State.
All sums so received by above mentioned purpose are utilized only for the purpose connected with the relief and rehabilitation of victims in the affected areas of Gujarat.

To appoint high-powered committee having a Judge of the Supreme Court of India or the High Court of Gujarat either Sitting or retired as its Chairman or renowned management expert with vision and impeccable integrity as its Chairman and comprising of persons of eminence and representatives of the State Govt. and Central Government as members thereof with such powers as the Hon'ble Court deem just and proper and particularly to oversee the complete programme of relief and rehabilitation and the utilization of all the funds entrusted by the State.

To get all account of sums so received for the said purpose and utilized for relief and rehabilitation be audited by the Comptroller and Auditor General of India and also by firm of Auditors of International Repute and such audit should also be a social audit.

To take all such effective measures forthwith as may be deemed necessary and appropriate to ensure compliance of the legal fundamental and human rights of the persons affected by the earthquake of 26th January, 2001 and to provide to them immediate relief in terms of shelter, food, medicines, drinking water, clothing, electricity etc., and to command the Government and their agency that they should carry out the process of relief and rehabilitation fairly, evenly and without showing any undue preference or bias;

To maintain proper inventory of all equipments, materials, goods etc., received from both within and outside India and from all sources and submit account for the same to the Honourable Court on monthly basis;

To appoint an appropriate committee of independent expert to inquire into the lapses and failure on the part of the Government and its agency in rescuing, trapped and injured persons and providing immediate and effective relief to the victims of the earthquake in the affected areas and upon such inquiry hold accountable all such persons holding public offices who failed to discharge their duties and direct the Government to take appropriate action against them.
The petitioners had also demanded (1) details of the casualties and injuries to human life and to the domesticated animals used for the supply of milk and farm operations as also the details of damages caused to the residential, business, Government and other properties; (2) detailed accounts of all equipments, materials and goods etc., received from any source and indicated briefly the utilization thereof; (3) steps so far taken by the State Government by way of relief and rehabilitation, operations districtwise and talukawise. (4) that the Government may ensure their relief and rehabilitation efforts by NGOs, citizens and other persons are allowed to be conducted freely and without interference of any kind so long as their operations do not hamper the relief and rehabilitation work being carried on by the Government.

After long hearing, deliberations, arguments, affidavits from both the parties, the Hon'ble Chief Justice Mr. D.M. Dharmadhikari and Hon'ble Mr. Justice P B Majumdar observed as follows:
(1) The obligation of the State to protect life is recognised by directing providing of proper medical attention to every citizen. The Hon'ble Court have therefore, support from host of case law of the Supreme Court for taking a view that to humans affected by calamity the State is obliged to provide help, assistance and support so that they may be able to save their lives. This right of assistance in calamity has to be treated as an enforceable right. Such affected persons, as a result of the calamity, are rendered helpless and handicapped. Help and corrective action sought for them through service spirited organisations or section of people cannot be thwarted, but the same deserves to be encouraged.

That the functions of a State governed by Constitution and Rule of Law are to take necessary remedial measures as parent and guardian of the citizens of the country to help and support helpless victims of a massive disaster. This is the obligation of the State which is enforceable by the victims or public spirited organisations on their behalf by way of collective action like the present public interest litigation.

The donations and contributions in cash and kind have been received by the government wholeheartedly and spontaneously by various sections of the society and people in India and abroad. These donations and contributions in cash and kind are not parts of the recognised Revenue or Funds of the state or the Centre as envisaged in the constitution. These contributions and donations constitute a fund raised by people all over the world with specific aim to extend help and support to the quake victims. Such donations and contributions are in the hands of Government in the nature of trust. The principle of trusteeship in the light of obligation of the State as guardian and parent of its citizens can have application in the present case. The contributions and donations in cash and kind are with the Government in trust with it for their use for the victims. Such relationship of trusteeship has to be inferred for the purpose and object of protecting the rights and interests of persons who being seriously affected by a calamity are unable effectively to protect themselves.

In our opinion therefore, all those donors and contributors who have extended help in cash and kind to the victims have enforceable right, in representative capacity to seek directions to the Government to ensure that the relief and rehabilitation material meant for quake victims reaches them in time and hour of need. For the same purpose they have a right to demand account of receipt and expenditure of such relief and rehabilitation material in cash and kind.

The Contributions and donations for relief to quake victims received from Indian and from abroad may form part of the consolidated or contingent fund of India subject to audit by the Controller and Auditor General of India, but looking to the nature of relief and rehabilitation operations, for safe custody of such fund and maintenance of account of its receipt and expenditure, a periodical check by audit is necessary. It cannot be safely left to a post audit procedure in the manner laid down in the constitution and in various laws framed thereunder. We consider it necessary raised by Government and donors and contributions for quake relief and rehabilitation work should be in safe custody and subject to periodical audit to ensure proper utilization of the funds and material. Leaving it to the ordinary procedure of audit and making Government answerable to the parliament or State Legislature only after utilization of the Fund would not achieve the aim of ensuring proper utilization of funds and material to the quake victims in time.

So far as the petitioners as eminent citizens in different walks of life are concerned their sincere efforts in the interest of quake victims and general public has to be appreciated. They have brought a just cause justifying some intervention by the Court. The petitioners have espoused the cause of the helpless quake victims and of the people all over the world who had shown generocity by sending help and support unprecedented in history.
The Hon'ble Chief Justice Mr./ DM Dharmadhikari and Hon'ble Mr. Justice PB Majumdar have given following directions:

The district judges to act as ombudsmen for relief and rehabilitation operation conducted by Governmental and non-governmental organisations in their respective district and supervise them.
The authority should open a separate fund, specially for disaster management, with the money that has come through donations and contribution from private and governmental bodies and individuals;

The authority should also maintain the accounts of all receipts and expenditure, which would be open for the Comptroller and Auditor General of India's Review. The accounts will be open for inspection by the public too.

The copy of this order will be sent to the National Human Rights Commission, for necessary action and intervention, if necessary, in redressing the complaints of violation of human rights in accordance with the provisions of Section 12 (b) of the Protection of Human Rights Act.
(5) The State Government is directed to forthwith mobilise and activate the various statutory authorities under the provisions of the Juvenile Justice, 1986 to immediately take care of orphaned and destitute children. -- Gautam Thaker, Secretary Indian Radical Humanist Association, Gujarat (21/2/2001)

(One of the petitioners Shri Haribhai B. Shah is President of Indian Radical Humanist Association, Gujarat)

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