Analytical Composition of this paper encompasses, nature of Disaster Management Act, 2005, along with the Constitutionality and legislative components of subject, “Disaster Management”; which provides dominant positioning of union over state and other subordinate authorities. This paper also incorporates critical analyses of adjudication scheme, provided under the Disaster Management Act, 2005; which in the present situation of pandemic COVID-19 increases the magnitude of overburden of HIGH COURT’S and SUPREME COURT, and alternatives to address the marrow issues under Disaster Management Act, 2005 are provided thereto, in this paper.
Evolution and history
Disaster Management has been identified and engraved, even, in the Manusamriti, under the chapter titled as, “Methods of everting natural calamities”. 1Shriram Maheshwari, chapter 6th, “Kautilya’s Administrative Thought”, Administrative Theory an Introduction, Macmillion Publishers India Ltd. 1998.2003, Second edition, PP. 52, Para 1. In contemporary India, with the evolution of time, scientific advancements were jacked, and an evolved scheme of administrative control of Disaster mitigation mechanism has been introduced. Inkling of Disaster Management Act, 2005 was propounded after India experienced a series of catastrophes.
Mainly, after Gujrat earthquake, in 1999, a High-powered committee and a National committee were engaged to structure the recommendations and suggestions for an effective and comprehensive disaster mitigation mechanism, which was considered to be paramount, in order to effectively manage, neutralise and prevent any kind of damage to life and property, which can be an aftermath of a man-made or natural disaster, catastrophe, holocaust or calamity in future. In the tenth Five-Year plan, for the first time, there was a proper dedicated chapter on Disaster Management.
On 23 December Government of India enacted, Disaster Management Act, 2005 (DMA). National Disaster Management Authority is the governing and apex body under the DMA; National Disaster Management Authorities official vision is, “To build a safer and disaster resilient India by a holistic, pro-active, technology-driven and sustainable development strategy that involves all stakeholders and fosters a culture of prevention, preparedness and mitigation.”
Disaster Management Act and Constitutional apparatus of India
Global legislations i.e. Australia, Sri Lanka, Thailand, Indonesia, Japan, USA, New Zealand on disaster management are structured and modelled on the principle of, “separation of power” 2Ministry of Home Affairs Government of India, “Disaster Management in India”, between centre and state. Indian legislative model on disaster management is also on the same footing. Under the Indian Federal scheme, expression, “Disaster Management” comprehensively as a whole, didn’t find its place, in any of the three lists, under schedule seven of the constitutional apparatus of India. Henceforth, under, Article 248 of the Indian constitution read with Entry 97 of List I, the “Residuary powers to legislate” on this subject, were rested with the parliament.
Only the parliament has the competence and prerogative to legislate on this subject, which in simple words, means that, only the Centre government has the power to make, amend or alter law, or issue the guidelines, directions or orders to the State government’s or any other subordinate authority, regarding disaster management. However, limited powers to legislate on selective wings of the disaster management is vested with the state legislators also. “Public health and sanitation” which is connected and is a part of expression, ‘Disaster Management’, is a particular field of legislation under entry 6 of list II, which means only the state has the prerogative to make laws dedicated to the subject of, “public health and sanitation”.
Under entry 29 list III both parliament and state legislature can legislate on the subject, “prevention of the inter-state spread of contagious and infectious diseases”. In the present situation of COVID-19, there have been instances, where, Centre has been bypassing and encroaching the state’s powers, and this pandemic is not a state-centric problem. It’s immeasurably significant to encounter the fact, that, each state will be having its own varying population density, migrant numbers, other environmental issues which shapes this problem as a multidimensional concern for the whole Nation, it has various aspects like socio-economic, internationally and security concerns attached to it. Henceforth, harmonized and cooperative efforts by the State and Centre government/ authorities is a dire need.
Predominant provisions and components of Disaster Management Act, 2005
Parliamentary intent for drafting and enacting the Disaster Management Act, 2005, was to effectively administer and expeditiously mitigate the catastrophes, mishaps or calamities, either natural or manmade. Disaster Management Act, 2005, propounds its objective, as, “An Act to provide for the effective management of disasters and for matters connected therewith or incidental thereto.” Authorities formulated under Disaster Management Act, 2005 are National Disaster Management Authority (NDMA), which further includes National Executive Committee (section 8) of DM Act, State disaster management authority (SDMA) which includes State Executive Committee (section 20) of DM Act, District Management Authority (DDMA).
In addition to these authorities, National institute of Disaster Management and National Disaster Response Force (NDRF) were also included and on the ground root level there are local authorities. Powers, functioning and responsibilities of each and every hereinabove, mentioned authority are very all-embracing and diverse from each other. The threshold of powers and managerial functions of marrow 4 authorities at National level, state level, district and local level, is authoritatively different and is superseded by the apex body National Disaster Management Authority, formulated under section 3, is responsible for framing and constructing of guidelines and policy, which are applicable and extends to whole of the nation.
On the state level, DMA propounds about the establishment of the State Disaster Management Authority under section 14, and their responsibility is to frame policies and plans for disaster management in the State. However, such policies and plans shouldn’t bypass/overlook guidelines and policies issued primarily by the NDMA. And DDMA is a planning, coordinating and implementing body for disaster management and can frame guidelines for the vulnerable areas in the district, such guidelines shall be made in accordance with the guidelines issued by the national and state authority.
Distribution of power under DMA is based on the concept of separation of power, but powers are lopsided, where anomalies powers are conferred with national level authorities. State and all other subordinate authorise have to work with the framework provided by the Union i.e. National Disaster Management Authority. Section 35 of the DMA envisage that the Central Government shall take all such measures as it deems necessary or expedient for the purpose of disaster management. DMA confers extensive powers to the union government to constitute inter-ministerial central teams to control and take over the state issues, and submitting their report to the centre, and it totally excludes the opinion of the state government.
The Central Government, irrespective of any law in force (including over-riding powers) can issue any directions to any authority anywhere in India to facilitate or assist in the disaster management (Ss 35, 62 and 72). Importantly, any such directions issued by Central Government and NDMA must necessarily be followed the Union Ministries, State Governments and State Disaster Management Authorities (Ss 18 (2) (b); 24(1); 36; 38(1); 38(2)(b); 39(a);39(d). Henceforth, these rigid provisions of DMA make central authorities the vertex of power, and renders fertile autonomy to state and subordinate authorities, which leads to lack of coordination and weakening of harmonious relation between the Union and state.
The SUPREME COURT, in the case of Government of NCT of Delhi v. Union of India, has unequivocally held that the union and the states need to grasp a synergistic and helpful government design for accomplishing coordination and also rightly observed that the union and the state governments should express their readiness to achieve a common objective and work together to achieve it.
Adjudication scheme under disaster management act, 2005
DMA confines the jurisdictional authority, of adjudication authorities in India. Section 71 of the DMA provides that, there is a bar on purview of courts, only HIGH COURT and SUPREME COURT are competent and apt judicial authorities to take the cognisance of any matter related to DMA and due to the pandemic, Indian judiciary has come under the burden and has immense pressure to regulate proper court proceedings and various court activities, and imposition of section 71 of DMA by Union government has deteriorated the situation, by increasing the work load of HIGH COURT and SUPREM COURT.
In the current situation COVID-19 there are grievances of separation, police abundances, starvation, absence of clinical guide and so on, from different corners of the nation, and there is a bar on purview of courts and specifically, at local and district level there is an absence of any specific adjudication authority i.e. Tribunal, grievance settlement authority dedicated to matters related to DMA, such arrangement worsens the apparent crucial situation. It’s very exigent to demand from the centre, a proper grievance redressal mechanism, which people can approach to seek, at district and local level.
And, even if, limitation on the preview of the court under section 71, of DMA is altered, deleted or amended. Another co-existent issue which can surface, is the disparity in the technological advanced infrastructure, in lower and subordinate courts to HIGH COURT and SUPREME COURT. Technology-driven judicial functioning is the marrow focus of the government, but the facilities present in the district and subordinate courts are not capable enough to cope up with the technology needed to “work from home” as there is no proper infrastructure, compared to the HIGH COURTS or the SUPREME COURT. And this can be detrimental to the basic legal jurisprudence of equality and justice.
To address the vacuum in the current situation of COVID-19, minor amendments which are refined and that will give result-oriented output, suitable to the object and purpose of DMA should be introduced. Argo, considering the uncertainty of the pandemic, a cut above structuring and crystallization of disaster management act, is certainly imperative, for the smooth, cooperative and counterbalancing of authorities at all the levels.