high court appoints a ombudsman to oversee relief operations
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
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
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
(One of the petitioners Shri Haribhai B. Shah is President of Indian Radical
Humanist Association, Gujarat)