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INTRODUCTIONThe year 2020 has been very challenging so far, from threat of world war III at the beginning of the year to the worldwide outbreak of Covid-19.
Initially in India, the number of covid-19 patients were few in number. After the WHO declared covid-19 a pandemic on 11th March 2020, the Indian government declared covid-19 a ‘notified disaster’ and subsequently invoked the Disaster Management Act, 2005 for the very first time since the creation of the legislation. Certain guidelines and penalty for violation of such guidelines were provided by the government to contain the pandemic. The initial three-week lock-down from March was issued under Sections 6 and 10 of the Act.
THE ACTThe Disaster Management Act (hereinafter referred as the Act) which came into existence in 2005 creates a comprehensive action plan to draw up, execute and enforce disaster management plans from the central government down to the district and local levels in India.
The Act was drafted following the Gujrat earthquake that occurred in 2004. The Indian government recognized the need for a pan-Indian legislation to tackle such a catastrophe. It sets out the framework not only for disaster management but also for damage mitigation.
According to Section 2(d) of the Act, the term ‘disaster’ refers to ‘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.’
Under this Act, three authorities have been set up to create a three-tier disaster management system; National Disaster management Authority, the State Disaster management authority and the District Disaster Management Authority. Other establishments under this law are the National Disaster Response Force, National Executive Committee, National Institute of Disaster Management and other disaster-related funds.
The law empowers central government to make immediate policy decisions and enforce disaster management restrictions on citizens. However, the Act fails to mention important factors, such as disaster recognition, declaration of areas that are vulnerable to disasters, simplification of liability, and local government engagement.
Reasons for enactment of the Act
The aftermath of three major incidents, influenced the government to develop a pan-India legislation to handle disasters.
The ‘super cyclone’ of 1999 in Orissa has approximately taken 10,000 lives and 2 lakh animals were reported to be dead. This prompted Orissa's State Government to overhaul its disaster management system and established the Orissa Disaster Management Authority. The first institution in India for disaster management that served as paragon for the 2005 Act.
The Bhuj earthquake of 2001 with 7.9 magnitude, one the most devastating catastrophe to which 2000 lives were lost. This tragedy prompted the Gujarat government to establish a comprehensive plan for restoration and rehabilitation, backed by long-term capacity building policies for all, in the fight against future catastrophic events. The Gujarat Disaster Management Act is a laudable legislation that includes almost all the elements that constitutes a successful disaster management law.
A significant reason for passing a nationwide legislation was the 2004 Indian Ocean Tsunami, which took close to 10,000 lives in India. Various committees were created following this incident to give recommendations on disaster management of different types and levels of magnitude of catastrophes.
Authorities established under the Act
1. National Disaster Management Authority (NDMA)
NDMA was established by the Government of India under Section 3 of the Act. The Prime Minister of India is the Chairperson, and there are nine other members, one of whom is to be designated as Vice-Chairperson. Its primary objective is to develop emergency management policies, plans and guidelines for prompt and efficient disaster response.
The National Executive Committee is established under Section 8 of the Act which is in charge of coordinating and monitoring body for the management of disasters, prepares a national plan, monitors the execution of national policies, etc.
In 2019, NDMA revised its National Disaster Management Plan with an aim to make India more resilient toward disasters. It also addresses biological and health emergencies thoroughly. This is the comprehensive legal structure in which the Central and the State governments carry out their actions to contain covid-19 outburst.
So far, 30 Guidelines on various disasters have been formulated by the NDMA, including the ‘Guidelines on Management of Biological Disasters, 2008.’
2. State Disaster Management Authority (SDMA)
SDMA was established under Section 14 of the Act. The Chief Minister of the State is the Chairperson who further nominates up to 8 members. The State Executive Committee established under Section 20 of the Act. This committee is in charge of developing disaster management plans for the State as well as implementing the national plans and policies, coordinate the execution of the State Plan, recommend funding for prevention and mitigation measures, etc.
3. District Disaster Management Authority (DDMA)
DDMA was established under Section 25 of the Act to manage disasters at district level and is in charge of planning, coordination, implementation of disaster management policies and organise relief measures. The Act empowers it to review construction in any area of the district in order to enforce safety standards. The authority consists of 8 members, one of whom is to be designated as Chairperson.
Act invoked during Covid-19
The Act is a national law mandating the Central Government to declare the entire country or any of it impacted by a disaster and to develop appropriate management plans to mitigate ‘disaster threats, impacts and effects.’
This Act grants authority to the government to take actions against someone who refuses to comply with government rules and orders. This authority does not exist under the Epidemic Disease Act, 1897 which was introduced to prevent bubonic plagues from entering through the sea route in Mumbai. Furthermore, the Epidemic Act is considered to be outdated and there are no provisions under it for imposing government orders like lockdowns, mandatory quarantines, social distancing, quick monetary relief, etc. Since the Disaster Management Act, 2005 empowers government to take swift actions and encompasses man-made disasters, it was invoked during covid-19 pandemic. This Act empowers the local authorities to act immediately in line with the national plan and state policies to manage the effects of the disaster.
Covid-19 is India’s first biological disaster and by the virtue of this act, governments gain access to sufficient funds to respond to the pandemic and quickly provide victims relief with the help of National, State and District Disaster Response Fund. Funds are used to set up quarantine institution/facilities, provide temporary accommodations, establish testing labs, screening and tracing of covid-positive persons, purchase essentials items such as personal protective equipment kits, thermal scanners, ventilators, consumables for government hospitals including food and medical care to covid-19 patients.
The Act prescribes for detention of any person for disregards government orders. The penalty imposed is 1-year imprisonment, fine or both and imprisonment may extend to 2 years. Other penalties are prescribed by the act under Chapter X of the Act.
Critical analysis of the Act
Upon analysing the definition of ‘disaster’ in accordance with the Act, Covid-19 pandemic can be treated as a disaster since the Act provides a broad description of the word disaster as well as disaster management.
The Act provides broad and unrestrictive powers to the Central and State government that causes a two-fold effect; while this may be viewed as an advantage for dealing with a pandemic of this magnitude or may a viewed as causing concerns if government is found to be misusing the given authority. Further, the powers and duties of various authorities are found to overlap in the act that they are bound to confuse people.
The tremendous focus of the Act is on preparedness which includes early warnings, reliefs, shelters and mass evacuation exercises. Although preparedness reduces casualties, the Act fails to mention recovery and rehabilitation of people affected by disasters. The reconstruction and recovery after the disaster are left to the concerned departments and Ministries and only few States like Kerala and Odisha have established disaster management plans at departmental level.
The Act has an overriding effect and is a paramount legislation of disaster management. It is better to analyse certain areas of the legislation carefully before they cause multiple problems after its implementation.
Disaster is defined by the Act as something that causes substantial loss if human lives, while it fails to define the term ‘substantial’. The Act also mentions disaster of ‘severe magnitude’ and fails to gives explanation as to what constitutes as a disaster of sever magnitude. Diseases like Tuberculosis and Swine Flu kills thousands of Indians every year, yet they have not been declared as a disaster.
The disaster management system in India has been hindered by delayed action, poor implementation of plans and policies. Moreover, the country lacks the technical ability to anticipate and measure the disaster precisely.
With insufficient infrastructure for NDRF battalions, lack of personnel training to handle severe disasters, no specialized corps to handle different disasters, no air support for quick deployment of personnel the Disaster Management Act is a failure.
The Act’s focus should extend to rebuilding the lives of the disaster-affected persons and provide policies for water, sanitation, nourishment, education and employment to those affected.
CONCLUSIONThe Disaster Management Act, 2005 has filled a lacuna in the India’s disaster management structure, it is prone to criticism. It is yet to achieve its desired effect. However, the orders and guidelines given by the government are apt to the situation and prevents Covid-19 cases from escalating.
Certain orders and guidelines of the government have faced criticism and said to have violated various fundamental rights guaranteed under the Constitution of India. In a case filed by the Kerala HC advocates in Kerala High Court, the Court ruled that the blockades on the Kerala-Karnataka road to contain Covid-19 spread which lead to the restriction of patients movement who required urgent medical treatment, violated fundamental rights of patients in accordance with Article 19 and 21 of the Constitution.
The government of India should inculcate best disaster management practices from countries like Japan, New Zealand, Australia and Canada.