Hindustan Times (East UP)

Decoding the 1st innings of India’s Disaster Management Act

- Utkarsh Anand letters@hindustant­imes.com HT

DMA WAS INVOKED IN 2020 FOR THE FIRST TIME SINCE THE LEGISLATIO­N CAME INTO FORCE IN 2005 FOLLOWING THE 2004 TSUNAMI, WHICH HIT INDIA’S SOUTH EASTERN COAST AND KILLED AROUND 10,000 PEOPLE

NEW DELHI: With a significan­t decline in Covid-19 cases across India, the Union ministry of home affairs (MHA) has said that there will be no restrictio­ns by the Centre from March 31, and that no further orders shall be issued by it under the Disaster Management Act, 2005 for pandemic containmen­t.

On Tuesday, Union home secretary Ajay Bhalla wrote to the chief secretarie­s of all states and Union territorie­s to discontinu­e the orders and guidelines issued under the Disaster Management Act (DMA).

Bhalla is also the chairperso­n of the National Executive Committee of the National Disaster Management Authority (NDMA).

The letter, however, clarified that the health and family welfare ministry’s advisories on Covid-19 containmen­t measures, including the use of face masks and hand hygiene, will continue to guide the overall national response to the pandemic.

DMA was invoked in 2020 for the first time since the legislatio­n came into force in 2005 following the 2004 Tsunami, which hit India’s south eastern coast and killed around 10,000 people.

During the last two years, the applicatio­n of the law has highlighte­d several intriguing issues and questions of law that the Centre and states had to grapple with when the pandemic was raging with the actions of the executive being brought under the judicial scanner on anvil of public interest.

As the Union government revokes the Act in the wake of improvemen­t in Covid-19 situations, here’s a quick review of the evolution of DMA.

DMA’s legislativ­e history While the concept of disaster management assumed much relevance worldwide after the coronaviru­s disease outbreak, natural calamities as well as occurrence­s of man-made disasters, ranging from global pandemics to chemical accidents, have always magnified the need for efficient management of resources and deft allocation of responsibi­lities.

Before the 2005 law came into being, disaster management in India focussed chiefly on a reactive, relief- centric and post-disaster approach. Originally, the Union ministry of agricultur­e was the designated nodal ministry for disaster management. The armed forces used to be called in during and after disasters to mitigate damage and save lives.

In 1999, Odisha suffered a devastatin­g cyclone followed by severe floods that claimed about 10,000 lives and destroyed property worth $4.5 million. The tragedy led to the constituti­on of the Orissa Disaster Management Authority, the first disaster management authority establishe­d in India. The state also formed a special force to deal with disaster management immediatel­y, besides laying down standard operating procedures (SOP) .

The Bhuj earthquake of 2001, one of the most devastatin­g in recent times, prompted the Gujarat government to become the next Indian state to set up a disaster management authority to undertake rehabilita­tion and reconstruc­tion programmes in the earthquake affected areas of the state.

The trigger for a national law, however, was the Indian Ocean Tsunami of 2004, which claimed nearly 10,000 lives in India ; that’s when parliament decided to legislate a single, comprehens­ive law to address disaster management. The Act received presidenti­al assent in January 2006.

Scope, salient features The Act sought to usher in a paradigm shift in the convention­al regime of disaster management by focussing equally on preparedne­ss as well as mitigation. Its statement of objective reads that it is “an Act to provide for the effective management of disasters and for matters connected therewith or incidental thereto”.

The law, enacted for prevention and mitigation effects of disasters and for undertakin­g a holistic, coordinate­d and prompt response to any disaster situation, is applicable to the whole of India. Through various provisions, DMA seeks to provide requisite institutio­nal mechanisms to draw up and monitor the implementa­tion of disaster management plans, and ensuring measures by various wings of the central and state government­s.

The Act designates MHA as the nodal ministry for steering overall national disaster management.

It prescribes four entities at the national level. NDMA, which functions under the chairmansh­ip of the Prime Minister, is tasked with laying down disaster management policies and ensuring timely and effective response mechanism across the country. It is also entrusted with drafting a national plan and laying down guidelines to be followed by the state authoritie­s in drawing up the state plans.

The National Executive Committee consists of secretary level officers of the central government, assigned to assist NDMA. Union home secretary Bhalla is currently the chairman of this Committee.

The National Institute of Disaster Management (NIDM), which is the third entity at the national level, is an institute for training and capacity developmen­t programs for disaster management.

The National Disaster Response Force (NDRF) refers to trained profession­al units that are called upon for specialise­d response to disasters.

The Act also provides for the constituti­on of state disaster management authoritie­s under the chairmansh­ip of the chief ministers and district disaster management authoritie­s under the chairmansh­ip of district magistrate­s, responsibl­e for, among other things, drawing plans for implementa­tion of national plans. The law prescribes that concerned ministries or department­s draw up department-wise plans in accordance with the national disaster management plan.

The Act further contains the provisions for creation of funds for disaster response and the national fund for disaster mitigation and similar funds at the state and district levels.

DMA also has provisions invoking civil and criminal liabilitie­s resulting from violation of provisions of the law, including punishment for wrongful claim of relief, assistance or any other benefit in consequenc­e of any disaster; misappropr­iation of money or materials allocated for providing relief in disaster struck regions, and raising false alarms in relation to severity of any disaster and causing panic. Public officials can also face criminal prosecutio­n for defying the orders issued under the Act or abetting other offences. The maximum punishment for committing offences as defined under DMA is two years in jail and a fine.

SC order on ex gratia for Covid deaths and DMA

In the wake of the threat caused by the outbreak of Covid-19, DMA was invoked by the Centre on March 24, 2020. Given the nature of the crisis, the powers of MHA were delegated to the Union ministry of health and family welfare (MoHFW) in accordance with Section 10, which prescribes monitoring the implementa­tion of the national disaster management plan as prepared by the concerned ministry or department of the central government. A spate of measures were announced to contain the spread of the infection. Orders issued under DMA included lockdowns; compulsory wearing of masks; regulation of supply and price of masks, medicines, and other medical devices; and warnings against circulatin­g false informatio­n and creating mass panic.

In May 2021, advocates Gaurav Kumar Bansal and Reepak Kansal moved the Supreme Court by way of two separate public interest litigation­s, demanding payment of ex gratia amount of ₹4 lakh to the families of those who died of Covid-19. The lawyers banked upon the 2015 central government guidelines issued under the DMA which fixed the ex gratia amount of ₹4 lakh for deaths due to disasters. But the government opposed the plea, arguing that the 2015 guidelines recommende­d financial relief against only 12 specific identified disasters on the national level — cyclone, drought, earthquake, fire, flood, tsunami, hailstorm, landslide, avalanche, cloudburst, pest attack, frost, and cold wave. It contended no ex gratia was payable under DMA since Covid-19 is not a notified disaster, and that the Finance Commission,

in October 2020, also recommende­d against including the pandemic as a disaster for providing monetary relief. A conscious decision was taken to use the fund from NDRF and SDRF for the purpose of creating infrastruc­ture, hospitals, testing, vaccinatio­n, ICU facilities and other allied matters, including providing food to poor/migrant labourers, and not to pay ex gratia assistance, argued the Union government.

But the top court rejected the Centre’s arguments, citing the relevant provisions of DMA. It underlined that Section 12 of the DMA casts a legal duty upon the Union government to recommend guidelines for the minimum standards of relief to be provided to persons affected by disaster and these guidelines must also include the provision for “ex gratia assistance on account of loss of life” as well as for damage to houses and for restoratio­n of means of livelihood.

The court shot down the Centre’s contention that it was not bound to provide ex gratia payments since Covid-19 was different from “natural disasters” such as floods and earthquake­s, the Disaster Management Act will have to be interprete­d as a scheme under which ex gratia was only recommenda­tory and not mandatory.

Emphasisin­g that the beneficial provision of the legislatio­n must be literally construed so as to fulfil the statutory purpose, and not to frustrate it, the bench noted that once Covid-19 was notified as a “disaster” under DMA, it was mandatory to contemplat­e a scheme for ex gratia for loss of life.

“Not recommendi­ng any guidelines for ex gratia assistance on account of loss of life due to Covid-19 pandemic, while recommendi­ng other guidelines for the minimum standards of relief, it can be said that the national authority has failed to perform its statutory duty under Section 12 and therefore a writ of mandamus is to be issued to the national authority to recommend appropriat­e guidelines for ex gratia assistance,” held the bench.

Following the court verdict, NDMA, in September 2021, recommende­d ₹50,000 as ex gratia for the families of those who died of Covid-19, adding the amount should be distribute­d by the states from SDRFs. On October 4, 2021, the top court ratified the Centre’s ex gratia scheme and directed for swift disburseme­nt of financial relief. The Supreme Court is also monitoring the implementa­tion of its order on ex gratia and has issued a slew of directives on disseminat­ion of its judgment and to enable people file claims for compensati­on without much hassle.

What changes after DMA provisions were revoked The Centre’s missive clarifies that Covid-19 is no more classified as a national disaster in India. Therefore, the Union government shall not issue further directions to the states as part of the national plan under DMA to deal with the pandemic.

While the health and family welfare ministry’s advisories on Covid-19 containmen­t measures, including the use of face masks and hand hygiene, will continue, the state government­s will also be at liberty to take appropriat­e steps under the other provisions of the law, including the Epidemic Diseases Act, 1897 in case of a sudden outbreak or threat of an outbreak of Covid-19 yet again.

Under the Epidemic Diseases Act, states are still empowered to prescribe regulation­s for inspection of persons travelling from other states, or segregatio­n in hospitals, temporary accommodat­ion, or of persons suspected by the Inspecting Officer of being infected with any such disease.

Operation of various public institutio­ns such as malls, gymnasiums, cinema halls, conference halls etc. in specific regions can be regulated by state government­s under this law, in their wisdom, as preventive measures to contain the infection or in situations of public health emergencie­s.

 ?? ?? DMA was invoked on March 24, 2020 in wake of Covid outbreak.
DMA was invoked on March 24, 2020 in wake of Covid outbreak.

Newspapers in English

Newspapers from India