In the wake of first pan India biological disaster, the legal and the executive machineries in India are grappling with the constant change in the circumstances. The current lockdown has been imposed under the Disaster Management Act, 2005 (“the Act”). The Ministry of Home Affairs through various guidelines in consultations with State heads and experts; is trying to cope with the constant changes and trying to strike a balance between public health and public livelihood.
Notifications issued by the Government
Scheme of the Act
How is COVID-19 covered
Shortcoming of the Disaster Management Act, 2005
A. Notifications issued by the Government
To facilitate the people of India, the Ministry of Home Affairs has from time to time issued guidelines to contain the spread of COVID-19 and also making sure that the country is not crippled. This is done by selectively operationalizing various activities from time to time, based on the feedback of the State Heads and public in general and other stakeholders. These guidelines are regularly updated even to include the smallest of things such as supply of electric fans. The Government of India has taken proactive steps to ensure smooth functioning under the lockdown.
The National Disaster Management Authority, by Order no. 1-29/2020-PP (Pt. II) dated 24.03.2020 under by Section 6(2)(i) of the Disaster Management Act, 2005 (“the Act”) directed Ministries/ Departments of Government of India, State Governments and State Authorities to take measures for ensuring social distancing so as to prevent the spread of COVID-19 in the country. Thereafter the steps of lockdown, the guidelines and standard protocols are issued by Ministry of Home Affairs, Government of India by Order No. 40-3/2020-DM-I(A) dated 24.03.2020.
B. Scheme of the Act
1. Object and definitions in the Act
The Act was enacted for the effective management of disasters and extends to whole of India.
The Act seeks to define the disaster as a catastrophe, mishap, calamity or grave occurrence in any area, arising from natural or man-made causes. The Act also defines disaster management as a continuous and integrated process of planning, organising, coordinating and implementing measures. Both these definitions encompass a complete preparedness from prevention to response to rehabilitation.
For the administration and application of this Act, 4 levels of authorities and its role has been defined under the act i.e. the national level, state level, district level and panchayat and Zila Parishad level (local authorities).
The Act specifically defines plans i.e. national, state and district plans for the disaster management at all levels.
Under Chapter II of the Act, a specialized authority has been established under the Act called the National Disaster Management Authority. This body consists of a Chairperson, being the Prime Minister and other members, upto a maximum of 9 members. Currently, the NDMA constitutes of 4 members other than the Chairperson.
The powers of the NDMA are prescribed under Section 6 of the Act. Most of the notifications, guidelines and directives have been issued by the Ministry of Home Affairs through National Executive Committee, in exercise of such powers, primarily under Section 6(2)(i) of the Act i.e. take such other measures for the prevention of disaster, or the mitigation, or preparedness and capacity building for dealing with the threatening disaster situation or disaster as it may consider necessary;
This chapter (Section 8) also contemplates constitution of a National Executive Committee chaired by the Secretary, Ministry of Home Affairs and comprising of secretaries of other ministries specified in the Section. The Committee has been granted wide powers from preparation and monitoring of national plans to laying down guidelines for concerned ministries, departments and state authorities in connection with measures to be adopted for any disaster or threat thereof.
Section 11 of the Act defines a National Plan and sets-out its basic requirements. Section 12 is an enabling provision which stipulates guidelines for minimum standard of reliefs for the disaster affected individuals and provides for comprehensive ways to provide reliefs.
The national authority is the nodal body and lay down all the plans and policies assisted by the secretaries of various ministries and department heads.
3. SDMA, DDMA and Local Authorities
Chapters III to VI contemplate creation of similar authorities at the State, District and even Local levels. The provisions under these chapters set-out in duties of these Authorities.
Section 10, 18 and 26 provides for the powers and functions for the national, state and district authority respectively. These powers include all the enabling provisions to take all the steps necessary to control, monitor, implement, evaluate, plan and coordinate for the relief measures. All the measures taken by the Central and the State Governments are broadly covered under these provisions.
5. Offences and Penalties
Chapter X of the Act (Ss 51 to 60) sets-out the various offences and provides like obstruction caused to the officers, false claims, misappropriation of funds and materials among others and prescribes the penalties for such offence. Most of the penalties involve imprisonment with fine.
C. How is COVID-19 covered
A pandemic/epidemic in the nature of COVID-19 is not specifically defined or covered under the Act. However, the broad definition of the Act covers any kind of disaster which is a grave occurrence and beyond the coping capacity of the community of the affected area i.e. the hotspots in India. The definition of disaster is reproduced herein for sake of reference:
Section 2(d): “disaster” means 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;
It is a considered view that this Act has more pan-India application and appeal than the colonial and archaic Epidemic Diseases Act, 1897.
D. Shortcoming of the Disaster Management Act, 2005
The Act is more comprehensive in its approach than the Epidemic Diseases Act, 1897, has its fair share of shortcomings which needs to be addressed by the legislature.
It is pertinent to note that NDMA has acted only under Section 6(2)(i) of the Act and has not laid down specific policies on disaster management under Section 6(2)(a) of the Act.
Certain states like Gujarat has its own specific legislation called Gujarat State Disaster Management Act, 2003 which came into existence prior to the Act and in many facets, this state act is more comprehensive and complete than the Act, which is at a national level.
The Act overlooks significant aspects such as classification of disasters, declaration of disaster-prone or containment zones in the present COVID-19 scenario. The Act does not cover as to how the involvement and responsibilities of local authorities can be streamlined. The Act stops at district level plans. Local authorities play a larger role in containing any situation at a micro level and there are no substantive provisions for local authorities. The state act provides for detailed role of local authorities.
The definition of disaster under the state act is comprehensive and includes any widespread loss of human life or injury or illness to human beings. However, the same does not form part of the Act even though it was enacted subsequent to the state act of Gujarat.
Once again, the Act even though was enacted later than the state act mentioned above, has no provisions regarding any specific area as disaster prone or containment areas and therefore pro-active steps for these areas is need basis and there are no clear guidelines to define which area needs more assistance. However, clear guidelines are provided under the Gujarat state act.
The definition of disaster also does not include anything related to progressive disaster, such in the case of current pandemic wherein COVID-19 has progressively acted the nation. Cues can be taken from legislation in the country of South Africa wherein occurrence of disaster is both sudden and progressive. Therefore, the Act is not a specialized for pandemic situations and is more of a general nature.
Though the Act provides for forming of various bodies at all levels, there is overlap of duties and there is no streamlined mechanism of cooperation among the governing bodies. This can lead to confusion and has been causing issues too in the current scenario. For instance, the State governments of Kerala and Karnataka are engaged in a legal tussle over opening of borders, clearly showcasing lack of cooperation and coordination.
One of the major issues the Act faces is the constitution of the NDMA which prescribes that out of the 10 members, one is Prime Minister and others are to be nominated by the Prime Minister only. Thus, given untoward authority to one single person and undue influence can be exerted given the political power-play in our country. This is so because all the acts to be done for the management of disaster rest with only one person that is the Prime Minister. If in the future, any Prime Minister fails to act proactively, then this Act will not be effectively applicable. Therefore, a more expert oriented approach is required.
There is no prescribed eligibility or qualification for these members. On the contrary, the Gujarat state act provides for who can be a part of the disaster Response Team.
One of the enterprising, progressive and enabling provisions of the state act of Gujarat relate to the duty of community, private sector enterprise and other agencies. This act recognizes the fact that not only the government but also all stake holders are equally responsible for the society and should partake in the disaster response. A disaster does not discriminate between public and private bodies and makes them liable to participate in capacity building and relief exercises. Currently, the private sector has been called upon by the government under special powers and many are voluntary. Therefore, the state act is more progressive and the Act should be accordingly amended. Such involvement of community finds reference in laws of many countries such as Japan, New Zealand South Africa.
Amidst the unprecedented effects of COVD-19 and abject harassment of healthcare professionals like doctors, nurses and support staff, it is imperative that health care professionals should be considered as officers under the Act for speedy action. The authorities need not wait for filing of an FIR and can take suo moto cognizance and action against the violators.
The Indian sub-continent, with its vast territory and large population, is among the most disaster-prone areas in the World. The diversity and uniqueness of India accentuates the socio-political and economic trepidations faced by the authorities while managing any form of disaster. The same is evident from the handling of the situation created by the COVID-19 pandemic. Both Centre and State governments are working overtime, round the clock, to prevent the community spread of the COVID-19. However, these measures are falling short due to the religious gatherings and other socio-political situations. The Act needs to provide a more organic approach towards not just managing a disaster but also how to manage the population during the same. Such pan-India level disaster is different from the routine natural disaster and requires more planning and grass-root implementation of national plans.
Therefore, the country requires a long-term development-oriented approach to disaster risk management.