34 Legal Framework & Issues of Disaster Management

Prof. Masood Ahsan Siddiqui

Legal Framework & Issues of Disaster Management

With the advent of Disaster Management Act 2005 (53 of 2005), a new era has begun in India where the new approach proceeds from the conviction that development cannot be sustainable unless disaster mitigation is built into the development process. Another corner stone of the approach is that mitigation has to be multi-disciplinary spanning across all sectors of development. Here it is pertinent to mention that, as enumerated by World Bank, investments in mitigation are much more cost effective than expenditure on relief and rehabilitation.

Section 2(d) of DM Act defines disaster as “a catastrophe, mishap, calamity or grave occurrence in any area, arising from natural or man-made causes, or by accident or negligence which results in substantial loss of life or human suffering or damage to, and destruction of, property, or damage to, or degradation of, environment, and is of such a nature or magnitude as to be beyond the coping capacity of the community of the affected area”. When the emergent situation grows to such an extent that the impact of the hazard is beyond the coping capability of the local community and/or the concerned local authority, disaster is said to have taken place. Section 2 (e) of the Disaster Management Act defines disaster management as “a continuous and integrated process of planning, organizing, coordinating and implementing measures which are necessary or expedient for- (i) prevention of danger or threat of any disaster; (ii) mitigation or reduction of risk of any disaster or its severity or consequences; (iii) capacity-building; (iv) preparedness to deal with any disaster; (v) prompt response to any threatening disaster situation or disaster; (vi) assessing the severity or magnitude of effects of any disaster; (vii) evacuation, rescue and relief; (viii) rehabilitation and reconstruction.” (Ref: Disaster Management Act 2005)

The Constitution of India has two entries in the State List that are remotely related to the subject of disaster management are entry 14, which deals with agriculture, including protection against pests and plant diseases, and entry 17 which deals with water, including water supply, drainage and embankments. The High Power Committee appointed by the Government of India, strongly felt that this is grossly inadequate, and that Disaster Management needs to be included in the 7th schedule of the Constitution under which ever list is felt most appropriate. However, the legislation on disaster management has been related to entry 23 (social security and social insurance) in the Concurrent list of the Constitution and the States would also be able to make their own legislation on the subject.

A number of constitutional provisions provide for State‘s obligation to provide relief and rehabilitation. Article 21 of the Indian Constitution guarantees every person right to life and personal liberty. It casts a positive obligation on the State to take all possible steps for prevention, preparedness and mitigation of disasters. Article 21 has been liberally interpreted by the Supreme Court to expand the scope of ‘life’ and can be said to be the repository of all important human rights. Besides, this Article 38 directs State to promote the welfare of the people. Article 51 directs State to honour the international treaty obligations. India is a party to a number of international treaties on environment which contain specific provision on disaster management (Ref: Constitution of India)

Under Article 51 India is under an obligation to honour its international commitments. India is a party to a number of international Conventions which highlight its obligation to protect its people from disasters. The United Nations General Assembly designated the 1990s as the International Decade for Natural Disaster Reduction (IDNDR). A significant step in this regard was the 1st World Conference in May 1994 wherein the Yokohama Strategy and Plan of Action were given effect. The 2002 World Summit on Sustainable Development re-enforced awareness of the need for risk and vulnerability reduction in order to secure sustainable development. Hyogo Framework for Action came into existence in 2005 and continued till 2014. For next 15 years, 2015-2030, India along with 186 other Countries ratified Sendai Framework for Disaster Risk Reduction (SFDRR) with 7 Global Targets to be accomplished under 4 priorities.

At the State and Central level, different legislations have been enacted, to deal with different types of disasters. Of these there are certain Acts whose operation spread across different types of disasters and deal with disasters in general. Also there are disaster specific statutes prescribing norms for tackling a particular type of disaster. Acts which are applicable to disasters in general, not exhaustive, are Indian Penal Code (1860), the procedural aspect Code of Criminal Procedure (1973), Indian Evidence Act (1872), Wildlife Protection Act (1972), Environmental Protection Act (1986), National Green Tribunal Act 2010 etc.

DISASTER MANAGEMENT ACT, 2005

Objective and Scope

The Disaster Management Act, 2005 provides for the effective management of disasters. The Ministry of Home Affairs is the nodal ministry for natural disasters. While depending upon the type of disaster, different departments/ Ministries have been made responsible for handling disasters. Drought relief comes upon the operation of Ministry of Agriculture, Air Accidents are looked upon by Ministry of Civil Aviation while Ministry of Railways is responsible for handling railway accidents. Chemical disasters are handled by Ministry of Environment & Forests. Department of Atomic Energy is responsible for handling nuclear disasters while biological disasters come under the purview of Ministry of Health.

The Supreme Court in N.D. Jayal and Anr. Vs. Union of India (UOI) and Ors.(2004) observed: Disaster Management means all aspects of planning, coordinating and implementing all measures which are necessary or desirable to prevent, minimize, overcome or to stop the spread of a disaster upon the people or any property and includes all stages of rescue and immediate relief. It is a proven fact that lot of human suffering and misery from large number of disasters can be mitigated by taking timely actions, planning and preventive measures. It is possible only through well functioning disaster management framework. This will enable us to minimize, control and limit the effects of disaster and will streamline the disaster management exercises. Our present relief centered re-active approach after the striking of disaster need to be changed into preparedness oriented pro-active attitude. This is the aim of pre-disaster preparations. Disaster Management Plans has to play an integral role in this exercise. They are blue prints for the management of disasters. The Disaster Management Plans should contain the aspects of disaster prevention and of ways for its management in the untoward occurrence of a disaster. A proper plan will place the disaster management exercise on a more firm foundation. Disaster Management activities should be integrated with the developmental activities. Incidentally, this is also the resolve of the Yokohama Strategy of the United Nations International Decade of Natural Disaster Reduction, to which India is a party. There is an affirmative obligation on the part of the State to preserve and protect human life and property. This obligation is an integral element in fulfilling developmental endeavors. Therefore, disaster management cannot be separated from sustainable development.

Relevant Provisions of Disaster Management Act (extracts from Disaster Management Act 2005)

Establishment of National Disaster Management Authority (Section 3)

National Disaster Management Authority consisting of Chairperson and other members (not exceeding nine) should be established by Central Government. Prime Minister will be the ex officio Chairperson of it.

Powers and functions of National Authority (Section 6)

National Authority is responsible for laying down policies, plans and guidelines for disaster management. It is responsible for -Approving National Plan -Approving plans prepared by Ministries / Government Departments in accordance with national plans. -Laying down guidelines to be followed by State Authorities and different Ministries or Government Departments while drawing up plans. – Coordinate enforcement and implementation of policy and plan for disaster management. -Take measures for prevention of disaster

Advisory Committee (Section 7) National Authority will have an advisory committee consisting of experts in the field of disaster management at national, State or district level to make recommendation on different aspect of disaster management.

National Executive Committee (Section 8) National Executive Committee will be constituted to assist the National Authority.

Constitution of Sub-Committees (Section 9) National Executive Committee can constitute one or more sub-committees for efficient discharge of its functions.

Functions of National Executive Committee (Section 10) National Executive Committee is responsible for implementing the policies of National Authority. It is responsible for acting as the coordinating and monitoring body for disaster management. It is also in charge of preparation of the National Plan. The plan has to be approved by National Authority. It is also responsible for providing the necessary technical assistance to the State Government, State authorities and District Authorities for preparing their disaster management plans.

National Plan (Section 11) A disaster management plan for the whole country known as the National Plan will be drawn up by the National Executive Committee.

India in June 2016, released its National Disaster Management Plant, and become one of the first

Countries to align its Plan with Targets and Priorities of SFDRR.

State Disaster Management Authorities (Section 14) State government will establish a State Disaster Management Authority. State Authority will consist of a Chairperson and other members (not exceeding nine). Chief Minister will be the Chairperson, ex officio.

Advisory Committee (Section 17) State Authority will have an advisory committee consisting of experts in the field of disaster management.

Functions of State Authority (Section 18) State Authority is responsible for laying down the State disaster management policy. It has to approve the disaster management plans prepared by different departments of State Government. It also lays down the guidelines which are to be followed by the different State Department.

Supreme Court in Municipal Corporation, Delhi v. Association of Victims of Uphaar Tragedy,( Air 2012 SC 100) observed The Delhi Disaster Management Authority, established by the Government of NCT of Delhi may expeditiously evolve standards to manage the disasters relating to cinema theatres and the guidelines in regard to ex-gratia assistance. It should be directed to conduct mock drills in each cinema theatre at least once in a year.

Guidelines for Minimum Standard of Relief by State Authority (Section 19) State Authority will lay down guidelines for providing standard of reliefs to persons affected by disaster in State.

State Executive Committee (Section 20, 22) State Executive Committee will assist State Authority in performance of its functions. State Executive Committee consists of the Chief Secretary to the State (Chairperson, ex officio) and four secretaries to the State Government of different departments. It is responsible for implementing the National Plan and State Plan on disaster management. It is also the coordinating and monitoring body for disaster management in the State. Its chief functions are- 1. It examines the vulnerability of different parts of the State to different forms of disasters. Accordingly, it specifies measures to be taken. 2. It lays down guidelines for preparation of disaster management plans by departments of Government of State and District Authorities. 3. It monitors implementation of disaster management plans prepared by State Government and District Authorities. 4. It gives directions to Departments and other authority and bodies in State regarding the action to be taken to deal with any disaster. 5. It advises, assists and coordinates activities of different Departments of State Government, District Authorities and different bodies engaged in disaster management. 6. It provides technical assistance and advice to District Authorities and local authorities in carrying out their functions. 7. It can examine construction in any local area in the State and if such construction is not in accordance with the approved standards, it can direct the District Authority or the local authority to take necessary actions.

State Plan (Section 23) Every State will have a plan for disaster management known as the State Disaster management Plan.

District Disaster Management Authority (Section 25) District Disaster Management Authority is to be established for every district in the State. District Authority will consist of the Chairperson and other members (not exceeding seven). This includes the Collector or District Magistrate or Deputy Commissioner of the district (will act the Chairperson, ex officio), the elected representative of the local authority(CoChairperson, ex officio), Chief Executive Officer of the District Authority ( ex officio), Superintendent of Police (ex officio), Chief Medical Officer of district (ex officio), other district level officers (not exceeding two). In Tribal Areas (referred to in the Sixth Schedule to the Constitution), Chief Executive Member of the district council of autonomous district will be the co-Chairperson (ex officio). In districts where zila Parishad exists, Chairperson shall be the co-Chairperson of the District Authority. An officer, not below the rank of Additional Collector or Additional District Magistrate or Additional Deputy Commissioner will be appointed to be the Chief Executive Officer of the District Authority.

Powers of Chairperson of District Authority (Section 26) Chairperson of the District Authority can in case of emergency exercise all the powers of the District Authority.

Powers and functions of District Authority (Section 30) District Authority will act as the district planning, coordinating and implementing body for disaster management. It has the following functions 1. Preparing a disaster management plan (including district response plan for the district). 2. Coordinating and monitoring the implementation of the National Policy, State Policy, National Plan, State Plan and

District Plan. 3. Identification of districts vulnerable to disasters. 4. Taking steps for the prevention and mitigation of disaster. 5. Ensuring that the guidelines laid down by National Authority and State Authority are followed by all departments of Government at district level and the local authorities in the district. 6. Giving directions to different authorities at district level and local authorities to take measures for prevention or mitigation of disasters. 7. Laying down guidelines for prevention of disaster management plans by Government department at the district level and local authorities in the district. 8. Monitoring implementation of disaster management plans prepared by the Government Department at the district level. 9. Reviewing state of capabilities for responding to disasters. 10. Reviewing preparedness measures to respond effectively to any disaster or threatening disaster situation. 11. Organizing specialized training programmes for officers, employees and voluntary rescue workers in the district. 12. Organizing community training and awareness programmes. 13. Setting up, maintaining, reviewing and upgrading mechanism for early warning and dissemination of information to public. 14. Prepare, review and update district level response plan. 15. Coordinate response to any threatening disaster situation. 16. Ensuring that Government Department at district levels and local authorities prepare their response plans. 17. Examining construction in district and ensuring that it meets the necessary standards. 18. Identifying buildings and places which can be used as relief centers. 19. Establishing stockpiles of relief and rescue material. 20. – Providing information to State Authority relating to different aspects of disaster management. 21. Encouraging involvement of non-governmental organizations and voluntary social welfare institutions in district for disaster management.

The Supreme Court in Kishen Pattnayak and Anr. vs. State of Orissa (1989) considered a letter written to the Chief Justice of India, highlighting the miserable condition of the inhabitants of the district of Kalahandi in the State of Orissa on account of extreme poverty, by the petitioners as a writ petition. This writ petition was taken along with another writ petition filed by Indian People’s Front alleging starvation deaths, drought diseases and famine in the districts of Koraput and Kalahandi due to utter negligence and callousness of the administration and the Government of Orissa. In order to ascertain the correct state of affairs, the Court was pleased to direct the District Judge of Kalahandi to enquire as to whether the State Government has, in fact, implemented the social welfare measures in the district of Kalahandi and whether such measures were adequate to meet the needs of the people there. The report was however not considered. The Supreme Court held that a district-level Natural Calamities Committee consisting of the Collector, other officials and the popular representatives like MPs and MLAs of the district, who are required to review the progress of relief work and the measures taken to meet the drought conditions from time to time was sufficient and no new committee was required to be formed. The Government of Orissa was directed to nominate the names of at least five persons belonging to recognised voluntary organisations and registered voluntary agencies as members of the said Natural Calamities Committee of the district. The Committee was to hold at least one meeting every two months and the function of the Committee would not be confined only to the cases of starvation deaths, but it shall be responsible for looking after the welfare of the people of the district.

District plan (Section 31) Every district will have a plan for disaster management. The plan will include the areas in the district which are vulnerable to different forms of disasters. The plan should list down the measures to be taken to prevent and mitigate disasters. Plans by different authorities at district level and their implementation (Section 32) Authorities at district level will prepare a disaster management plan.

Powers and functions of District Authority in case of any disaster (Section 34) District Authority has the following powers and functions:– 1. Give directions for release and use of resources available with Government Department and local authority. 2. Control vehicular traffic in the affected area. 3. Remove debris, conduct search and carry out rescue operations. 4. Provide shelter, food, drinking water, healthcare and other essential services. 5. Establish emergency communication system in affected area. 6. Make arrangements for disposal of unclaimed dead bodies. 7. Construct temporary bridges or other necessary structures and demolish hazardous structures.

State Government to take measures (Section 38) State Government will take all measures specified in the guidelines laid down by the National Authority and other measures necessary for disaster management.

Disaster Management Plan of Departments of State (Section 40) Every department of state Government shall prepare a disaster management plan.

Functions of the Local Authority (Section 41) Local Authority will take all measures necessary for disaster management. This includes ensuring that its officers and employees are trained for disaster management, maintaining resources relating to disaster management, ensuring construction projects confirm to standards and specifications laid down for prevention of disaster and carrying out relief, rehabilitation and reconstruction activities in affected area.

National Institute of Disaster Management (Section 42) National Institute of Disaster Management is constituted by Central Government. The institute will be responsible for developing training modules, undertake research and documentation in disaster management and organize training programmes. It will also be responsible for providing assistance to State Government and State training institutes in formulation of State level policies etc.

National Disaster Response Force (Section 44) National Disaster response Force is to be constituted for providing specialist response to disasters.

National Disaster Response Fund (Section 46) Central Government will constitute National Disaster Response Fund for meeting disaster situations.

National Disaster Mitigation Fund (Section 47) Central Government will constitute National Disaster Mitigation Fund for projects exclusively for mitigation of disaster.

Establishment of funds by State Government (Section 48) State Government will constitute a State Disaster Response Fund, District Disaster Response Fund, State Disaster Mitigation Fund and District Disaster Mitigation Fund.

Offences and penalties (Chapter X) Chapter X deals with offences and penalties. Obstruction of any officer in discharge of his functions under the Act is punishable under Section 51. Making of false claim for the purpose of obtaining any relief, assistance or other benefit is punishable under Section 52. Misappropriation of money or materials meant for providing relief in any disaster situation is punishable under Section 53. Making false alarm as to disaster or its magnitude leading to panic is punishable under Section 54. In case of offence being committed by any Government Department, head of Department is deemed to be guilty of the offence (Section 55). Failure of any officer in duty imposed under this Act is punishable under Section 56. In case of any offence being committed by a company or body corporate, the persons who were in charge of the company at the relevant time and the company will be liable for such acts under Section 58.

Prohibition against discrimination (Section 61) No discrimination on the ground of sex, caste, community, descent or religion should be done while providing compensation and relief to the victims of disaster.

Bar of Jurisdiction of Court (Section 71) Except the Supreme Court or High Court, no court shall have jurisdiction to entertain any suit in respect of anything done on instructions issued by Central Government, National Authority, State Government, State Authority or District Authority in relation to its functions under this Act.

Future Challenges

With the increasing tendency of moving from globalized to protectionist, Countries and Global institutions need to reflect the changing demographic and economic balances in the way they are governed. India has one of the strongest legal structures in the world with enactments possibly on every single issue. However we lack effective implementation. Moreover, if major opportunities and risks are to be managed effectively, global cooperation is needed in rapidly growing areas of trade and capital flows, energy markets, health, etc. The challenges confronted during the second apart of the 20th Century like Global security and global poverty have partially be addressed. The focus now should be shifted towards the new and growing global challenges like, global financial imbalances, energy insecurity and global warming and threats of global epidemics.

Way Forward

• Disaster Management may be included as a stand along entry in the Concurrent list of the Constitution of India.

• Regarding environmental protection, including soil, land, water, air pollution in general and environmental degradation as a whole, presently the cases are entertained by Hon’ble Supreme Court of India and various High Courts under Article 21 of the Constitution of India relating to life and personal liberty. However, with increasing issues pertaining to disaster risk reduction and environment, a new Article 21B may be inserted in the Constitution of India.

• Keeping santity with SFDRR, Disaster Management Act 2005 may be renamed as National Act on Disaster Risk Reduction.

• As per provision of Section 47 of DM Act, Mitigation Fund needs to be created.

References

1. Constitution of India
2. Disaster Management Act 2005
3. Disaster Management in India – Ministry of Home Affairs 2011
4. Compendium of Laws on DM – NDMA publication
5. Supreme Court Cases – All India Records