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