CRITIQUE OF THE NATIONAL MANAGEMENT ACT

SUBJECT: DISASTER MANAGEMENT LAW

SUBMITTED To:
MS. K. SUDHA

Submitted by:

AKSHAYA
2016009
IX SEMESTER

DAMODARM SANJIVAYYA NATIONAL LAW

UNIVERSITY, VISAKHAPATNAM

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ACKNOWLEDGMENT

I, Akshaya, a student of DSNLU is extending my heartful thanks to MS. K. SUDHA, the

faculty of the subject “DISASTER MANAGEMENT LAW”. It would not have been possible
without her constant support and help.

I would also like to express my thanks to the librarian of DSNLU, my friends, families and
who so ever made this research paper possible.

Thanking you,

Akshaya - 2016009

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 INTRODUCTION

“India is a multi-hazard-prone country with diversity of eco-geological and

socioeconomic settings. As witnessed by historical time disasters and their
management, the disaster governance in India was primarily of contingency
management approach. Codes, practices and guidelines for preparedness and
particularly on relief existed even before Independence. However, with the growing
understanding on risk causes, the paradigm shift to prevention-mitigation and now on
mainstreaming disaster risk reduction and climate change adaptation into
development forms a key agenda in development governance.”

“Legal and policy framework has given rise and mandates to key institutions for
policy guidelines, capacity development and emergency response at national, sub
national and local levels. Laws directly and indirectly addressing disaster-related
hazards and factors of vulnerability and capacity have been reviewed besides
opportunities, resources, and responsibilities of organizations/agencies stated herein.
Mechanisms of financial strategies, international cooperation and recent advances are
discussed, besides the journey of disaster management governance in India. A
detailed account on national authority (NDMA), institute (NIDM), emergency
response and sub-national and district framework for disaster governance is also
enumerated.”

“The Indian subcontinent is among the world’s most disaster-prone areas. With its
vast territory, large population and unique geo-climatic conditions, the subcontinent is
frequently exposed to natural catastrophes. Even today natural hazards like floods,
cyclones, droughts and earthquakes are not rare or unusual in the country. Among the
35 states and union territories, 25 are disaster prone. While the average loss of human
life every year is 3,600, 1.42 million hectare crop area is affected and 2.36 million
houses are damaged annually. In India, while 40 million hectares of landmass is prone
to floods, 68 per cent of the total areas is vulnerable to periodical droughts. The
intensity and frequency of disasters have increased in recent years. Examples can be
drawn from the recent past when one after another disaster has shattered the
subcontinent with irreparable loss of life and property. The tsunami of 2004, floods in
various parts of the country and the earthquake in Jammu and Kashmir have once

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again raised the question of disaster management in India. The country requires a
long-term development-oriented approach to disaster risk management. Until recently;
the focus was on post disaster relief and rehabilitation. However, the present
philosophy lays more emphasis on mitigation and vulnerability reduction and it has
become absolutely necessary to strike a balance between mitigation and managing
disaster. Numerous deaths and enormous loss of property have compelled the state as
well as civil society to ponder the question – are we well equipped to fight such
emergency situations? In such a context, a welcome effort has come from the
government of India. In the winter session, Parliament passed a legislation known as
The Disaster Management Act, 2005. The objective of this article is to focus on the
nitty-gritty of the act and to assess its effectiveness in combating the challenges of
disasters and collateral issues.”

EXISTING MECHANISMS OF DISASTER MANAGEMENT

“In India, states are primarily responsible for handling disasters. The government of
India supplements the efforts by extending logistics and financial support such as
contributing to State Calamity Relief Funds (75 per cent contribution by GOI and 25
per cent by state governments) for immediate relief, restoration of essential
infrastructure and public assets in the social sector. In addition, a National Calamity
Contingency Fund has been constituted at the central level for providing additional
resources. Government of India also has different nodal ministries in charge of
different types of disasters: Agriculture ministry for natural disasters, atomic energy
for nuclear disasters and so on. There is a National Crisis Management Committee
(NCMC) under the cabinet secretary and Crisis Management Group (CMG) under the
central relief commissioner.”

“Besides, a group of ministers, group of secretaries and high level committees can be
constituted whenever required by the situation. Similarly, at the state level, there is the
state crisis management group headed by the chief secretary, the relief commissioners,
contingency plans in the states as well as districts level. Apart from that, some states
have their comprehensive relief codes. The government of India has adopted
mitigation and prevention as essential components of its development strategy.
Several programmers’ and projects are in existence to deal with different types of
disasters, e g, earthquake risk mitigation, a project for cyclone mitigation (estimated

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cost Rs 1,050 crore), disaster risk management programme (for 17 multi-hazard prone
states with the assistance from UNDP, USAID and European Union).”

AN OVERVIEW OF THE DISASTER MANAGEMENT ACT

“Disaster management in India, leading up to 2005, consisted of a reactive, relief-

centric and post disaster approach. However, the passage of the Disaster Management
Act in 2005 caused a paradigm shift in the conventional regime of disaster
management and ushered in an era of disaster control focused on preparedness and
mitigation.”

Events preceding its introduction-

Originally, the Ministry of Agriculture of the Government of India was the designated
nodal ministry for disaster management. The government simply called for the Armed
forces during and after disasters. But even they were often left grappling for directions,
since their mandates and priorities are, after all, starkly different.

“The Orissa super- cyclone of 1999 is believed to be a turning- point in the

development of the current disaster- management structure of the country. The
devastating cyclone and the subsequent floods claimed approximately 10,000 lives
and destroyed property worth US $ 4.5 million. The impact would have been far less,
but for the lack of preparedness, and the unequipped state of the executive to
undertake relief and rescue of the required scale. It jolted the state government of
Orissa into action towards revamping its disaster- management system, which led to
the constitution of the Orissa Disaster Management Authority (ODMA), the first
disaster management authority centre established in India. Its focused approach,
skilled manpower and well- developed infrastructure eventually served as a role-
model for the Disaster Management Act of 2005.”

“The Bhuj earthquake of 2001, one the most devastating in recent times, prompted the
Gujarat government to become the next Indian state to conceptualize a massive
reconstruction and rehabilitation programme, followed by measures for long term
capacity building of all stakeholders to fight future disasters.”

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The Indian Ocean Tsunami of 2004, which claimed nearly 2,28,000 lives globally,
and around 10,000 in India served as a major catalyst for the passage of a single,
comprehensive act to address disaster management. The catastrophe was followed by
a sweeping sense of urgency in the government to consolidate and revise its disaster
management policies. Committees were formed, which gave recommendations on
management of calamities of various magnitudes and laying the foundation for the
Act.

Scope and objective

“The Disaster Management Act was passed with the primary objective of
preparedness, prevention and early planning towards disaster. 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 Act received the assent of the president on 6th of January 2006 and is applicable
to the whole of India. Briefly, it provides for a detailed action- plan right to guide the
central government through to the district and local levels to draw, implement and
execute disaster management plans”

Salient features

The Act designates the Ministry of Home Affairs as the nodal ministry for steering the
overall national disaster management.

“It puts into place a systematic structure of institutions at the national, state and
district levels. Four important entities have been placed at the national level-

 The National Disaster Management Authority (NDMA)- It is tasked with

laying down disaster management policies and ensuring timely and effective
response mechanism.

 The National Executive Committee (NEC)- It is comprised of secretary level

officers of the Government of India assigned to assist the NDMA

 The National Institute of Disaster Management (NIDM)- It is an institute for

training and capacity development programs for managing natural

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  National Disaster Response Force (NDRF)- It refers to trained professional
units that are called upon for specialized response to disasters.”

“The Act also provides for state and district level disaster management authorities
responsible for, among other things, drawing plans for implementation of national
plans. The Act further contains the provisions for financial mechanisms such as the
creation of funds for emergency response, National Disaster Mitigation Fund and
similar funds at the state and district levels. The Act also devotes several sections
various civil and criminal liabilities resulting from violation of provisions of the act,
including- punishment for wrongful claim of relief, assistance or any other benefit in
consequence of any disaster; misappropriation of money/ materials allocated for
providing relief in disaster struck regions, and raising false alarms in relation to
severity of any disaster and causing panic.”

Progress made under the Act

The Disaster Management Act incorporates the belief that investments in mitigation
are far more cost- effective than expenditure on relief and rehabilitation. By laying
down measures for strategic partnerships and drawing up blue- prints of action plans
to counter catastrophes of various degrees, the Act has brought about significant
progress in a number of areas, including-

 Detailed directions to guide disaster management efforts

 Capacity development in all spheres

 Consolidation of past initiatives and best practices

 Co-operation with agencies at national and international levels

“In the wake of the scare caused by the outbreak of the novel coronavirus, which is
fast gripping India, the Disaster Management Act has been invoked by the authorities.
Given the nature of the crisis, the powers of the Ministry of Home Affairs have been
delegated to the Ministry of Health and Family Welfare, in pursuance of Section 10 of
the Act. The section talks about monitoring the implementation of the national
disaster management plan, in consonance with the plans prepared by the ministries or
departments of the central government and gives overarching superintendence power

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to the officer executing it. Some of the measures taken to contain the spread of the
disease in pursuance of the invocation of the act pertain to closure of schools, colleges,
places of public entertainment etc, regulation of supply and price of masks, medicines
and other medical equipments to ensure their steady availability and taking
cognizance of acts amounting to circulating false/ incorrect information and creating
mass panic.”

Analysis of the Act

“Many countries round the world have disaster related legislations. Several Indian
states have relief codes, states like Gujarat have a specific legislation known as the
Gujarat State Disaster Management Act, 2003 which came into existence after parts
of the state were ravaged by an earthquake in 2001. In the light of some legislation
from countries like Japan, South Africa, New Zealand and Canada as well as of
Gujarat, the new Indian legislation is reviewed here to assess to what extent it is
equipped to manage disasters. In the process, the UN Guiding Principles on Internal
Displacement have also been taken into consideration. There are certain areas which
need some deliberation. The act refers to a “disaster” as “substantial loss”of life and
property, again in section 13, it refers to “disasters of severe magnitude”.”

“The act complicates the issue more as it has no provision for declaration of a disaster
or disaster-prone zones and classification of disaster (national or regional). The
Disaster Management Act, 2002 of South Africa or our own Gujarat act has detailed
provisions in these areas. Without an area being declared as “disaster prone”, a pro-
active role by the state cannot be expected. Classification helps in assessing the extent
of damages. One of the unique features of the South African legislation is the
addressing of a disaster as a “progressive or sudden” phenomenon.”

“In the context of the Indian act, disasters are portrayed only as sudden acts. But in
many cases it is progressive. The best example can be the cases of epidemics which
often affect a considerable portion of the population. The horror of plague that swept
through south-central, south-western, and northern India in 1994 is still fresh in our
memory. Diseases like malaria and dengue haunt metro cities like Kolkata every year.
In 2005, over 1,600 people in the city were affected by dengue. Still an effective

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mechanism has not been drawn to fight such situations or take a proactive role to
check such ordeals.”

“Once the situation gets out of control, the blame game starts among the various
departments of the government and the civic authorities. Again in India, each year,
tuberculosis kills half a million people and diarrhea diseases more than 6,00,000.
These do not happen suddenly, but aren’t these “disasters”?

“On the whole, the matter of public health has been unable to find any space in the
new Indian legislation. The act provides for establishment of a number of statutory
bodies such as the national disaster management authority, state disaster management
authorities and district disaster management authorities, etc, advisory committees,
executive committees and sub-committees under the government. The establishment
of so many committees and authorities does not seem to have a strong logical
foundation. There are such overlapping duties found among various authorities in the
act that they are bound to confuse people.”

“Further, the coordination among these bodies appears to be very cumbersome. So far
as the constitution of authorities is concerned, the maximum number of members is
fixed at 10. Among 10 members, nine are to be nominated by the prime minister, the
ex officio chairperson. No qualification is necessary for the members, whereas in the
Gujarat act, the members of the state authority are clearly mentioned who include the
director-general of police and the state relief commissioner. Being an authority at the
national level, the eligibility for members should have been spelt out in the act. In the
context of the political scenario of our country, the appointments to the national
authority can be strongly influenced by political motives. This will certainly lead to
unsuitable people being appointed to high posts.”

“The local authorities, who probably have a valuable role to play, are barely
mentioned in the act. There are detailed provisions regarding the functions of different
authorities, including government departments. In the case of local authorities, there
are no such substantive provisions, but only a minor reference to taking necessary
measures for disaster management. Under the Gujarat legislation, detailed
responsibilities are laid down for the local authorities. Regarding the importance of
the lower strata of the administration, some instances of foreign legislation can be

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cited. One of the striking features under the Emergency Programme Act of British
Columbia, Canada, is the importance of decision-making placed in the hands of the
local authority. The local authority is empowered to declare local emergency, if it is
satisfied that an emergency exists or appears imminent. Under the Disaster Relief Act,
1947 of Japan, the prefectural governor may delegate a part of his authority for the
implementation to relief activities to a head of municipality, in order to conduct relief
activities in a speedy manner. No disaster can be ever dealt with effectively only
through administrative set-up, alienating the community as a whole. But unfortunately,
the act entirely ignores this very important aspect. The act is going to be implemented
entirely through the government system.”

The Gujarat act makes the community, private sector enterprises and even the
individuals duty-bound to assist the collector or the commissioner in countering
disasters. Inspirations can be drawn from foreign legislation. New Zealand enacted
the Civil Defence Emergency Management (CDEM) Act, 2002 to counter emergency
situations including disasters.

“Under this act, local authorities, non-government agencies, the voluntary sector,
churches, and community groups are involved in disaster risk management activities
at both national and community levels and are tied into the process through the pre-
incident planning and agreements. For example, Red Cross has the responsibility at
both national and regional levels for registration of victims of disasters. Article 1 of
the Japanese legislation clearly specifies that the purpose of the act is to protect
victims of disaster and maintain social order by causing the central government to
provide needed relief services “on an emergency basis in cooperation with local
public entities and the Japan Red Cross, other entities, and the people of Japan”.”

Under the act, the prefectural governor can cause persons engaged in medical services,
civil engineering and construction services, or transportation services to engage
inactivities related to relief activities (article 24). The South African law emphasises
the establishment of a national framework for disaster management comprising all
national, provincial and municipal organs of state, statutory functionaries along with
non-governmental institutions involved in disaster management, the private sector,
communities and individuals.

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Such provisions prove that a lot of responsibilities have been pumped into the
management process through the process of community participation. In the process
of excluding the community, the other important aspect which is missing in the Indian
act is the recognition of traditional knowledge. The question may be raised about why
such an initiative is necessary.

In New Zealand, it is incumbent on the ministry of civil defence and emergency

management (CDEM) groups to consult with Maori (indigenous tribes) on hazards
and risks and the options for their treatment, when developing a CDEM group plan. If
tribals in the Andamans could survive the tsunami, it was because their existing
warning systems worked well in comparison to our non-existent modern systems. The
fact that traditional houses of wood and stone survived the Uttarkashi earthquake not
so long ago while modern buildings collapsed offered a similar lesson.2 Native
intelligence is significant and technical expertise needs to treat this as complementary.

The affected communities require sufficient space to voice their concerns. Another
significant aspect of the act is that the actions of the national, state and district
authorities as well as the central and sate governments cannot be challenged except in
the Supreme Court or the high courts having respective jurisdictions. Granting the
officials such a high degree of immunity encourages them to indulge in such activities
which may go against the objective of the act. Hence, it affects people’s right to seek
justice. Conversely, it imposes punishment for false claims. Many studies, even in the
context of the tsunami had clearly shown that many people have been excluded on the
basis of caste, religion, etc, by the state in the relief and rehabilitation process.

With jurisdiction vested only in the higher courts, it will create enormous difficulties
for such alienated people to get their due share. Again, losing documents in disasters
is a common phenomenon. So they cannot account for their lost properties. Does that
mean those unfortunate lots will not get compensation and be punished for asking for
the same?3 Disasters often displace a large number of people to new places within
their countries. There are reports of government’s forced eviction from the coast in
the state of Tamil Nadu after the tsunami in the name of safety.

The government of Tamil Nadu has brought out government order (GO) 172 which is
highly debated and alleged to induce people to relocate. In case of partly damaged

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houses built before 1991 within 200 m of the high tide line the owners will get a new
house worth Rs 1.5 lakh, constructed by the government, provided the owners are
willing to move beyond 200 m. But the owners unwilling to move out will have to
undertake all the repair work without any government assistance. In case of fully
damaged houses there is no option but of moving out, as new construction in the same
place is strictly prohbited according to this GO.

This is a clear policy of the government forcing the helpless people to relocate.
Willing owners have to relinquish their old property to the government in favour of a
new abode. The property so relinquished would be used for “public purposes”.
Nothing is mentioned about the nature of these public purposes. In such
circumstances, there is no legal hindrance for the state to go ahead even with tourism
projects at the expense of those poor people.4 There is a growing recognition towards
the United Nations Guiding Principles on Internal Displacement which include people
displaced internally due to natural disasters. It categorically states that it is the
primary responsibility of the state to prevent and avoid arbitrary displacement of its
people. The act appears to have concentrated more on disaster management through
government system rather than focusing on the fact that the affected communities also
have a right to relief and rehabilitation as well as the right not to be displaced
unnecessarily.

CRITICAL ANALYSIS

Although the Disaster Management Act has undoubtedly filled a huge gap in the
scheme of governmental actions towards dealing with disasters, one cannot deny that
it comes with its fair share of drawbacks.

One of the most glaring inadequacies in the Act is the absence of a provision for
declaration of ‘disaster- prone zones’. Almost all disaster – related legislations in the
world have mapped out disaster- prone zones within their respective jurisdictions. The
state cannot be expected to play a pro- active role unless an area is declared ‘disaster-
prone’. Classification helps in determining the extent of damages as well.

“The Act portrays every disaster as a sudden occurrence and completely fails to take
into account that disasters can be progressive in nature as well. The classic example is

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that of epidemics, which come and go, often taking with them thousands of lives
without even being acknowledged as a ‘disaster’. In 2006, over 3,500 people were
affected by dengue, a disease with a history of outbreaks in India, yet no effective
mechanism has been put in place to check such an ordeal. Tuberculosis is known to
kill thousands of people in the country each year but since its occurrence is not
sudden or at once, it has not found a place in the Act.”

The Act calls for establishment of multiple- national level bodies, the functions of
which seem to be overlapping, making co-ordination between them cumbersome.
Moreover, the local authorities, who have a very valuable role to play in the wake of
any disaster as first responders, barely find a mention at all. There are no substantive
provisions to guide them, merely a minor reference to taking ‘necessary measures’.

Added to that, delayed response, inappropriate implementation of the plans and

policies, and procedural lags plague the disaster management scheme in India.
Inadequate technological capacity for accurate prediction and measurement of the
disaster result in large scale damage. The implementation of the act relies entirely on
government actions and alienates the community and private sector enterprises.

CONCLUSION

“The unprecedented crisis of the COVID-19 pandemic has provided the sternest test
for Disaster Management response in most countries, including India. India’s Disaster
Management Framework has evolved over the past many years with a dedicated legal
and policy framework. Yet, it suffers from ambiguity. The provisions mentioned in
the guidelines, policy, and plans of the Disaster Management Framework not only
lack coherence with each other but also with the official delegation of responsibilities
to various ministries. It also suffers from contradictions in federal delegation of
responsibilities in case of biological emergencies. Over the years the focus has been
shifted from immediate response to long term preparedness. While BDM guidelines
specifically laid down elaborate measures to deal with disease outbreaks, epidemics,
and pandemics, the subsequent plans and policies focused mostly on preparation of
risk resilience.”

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“Although the initial response of the Government of India aligned closely with the
BDM guidelines, as reflected in the lockdown and social distancing guidelines, many
of its provisions were not implemented optimally. The most important among them
were those specifically related to disease surveillance guidelines and provision of
essential supplies and services to ensure successful social distancing. Both these
measures were important in early containment of the disease outbreak, an objective
that India failed to achieve. The parameters of disease surveillance and the key agency
to coordinate it have remained mired in controversy and ambiguity throughout the
crisis. The provision of essential supplies and services was not ensured from the
beginning and suffered from inadequacy later as well, which resulted in the massive
exodus of migrant workers from cities to their hometowns and villages.”

“There have also been inadequacies in the Disaster Management Framework itself,
including the BDM guidelines. The nature and lifecycle of a pandemic is different
from all other disasters and, thus, its response differs as well. A pandemic is far more
unpredictable and long-lasting than other disasters. While the BDM guidelines, in
order to ensure social distancing, made provisions for suspension of economic activity,
a measure strictly implemented as part of the lockdown, it did not focus on the
repercussions of the same, especially on the economically vulnerable, including
migrant workers. Adequate measures to ensure economic sustenance, such as
employment generation and cash transfer schemes, have not been incorporated in the
Disaster Management Framework. Neither was the fallout anticipated by the
government and the response to the disaster itself became a crisis and wreaked havoc,
especially for the economically vulnerable population.”

“The suspension of economic activity was tantamount to the denial of the basic right
to livelihood. Civil liberties were also compromised through several other restrictions
as part of what has been called one of the strictest lockdowns in the world and this
compounded the crisis. The heavy-handed attitude of the police was only aided by the
impunity granted to them through various Acts and guidelines constituting the
Disaster Management Framework. This resulted in several cases of police brutality,
many of which resulted in fatalities.

Even with so many hardships, the number of infected people has rapidly increased
and the healthcare facilities have been overwhelmed resulting in 67,376 COVID-19

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deaths till September 3; interestingly, as many as 971 non-Covid deaths were
recorded between March 14 and July 4, which include fatalities due to starvation,
duress due to long distance travel, or accidents, according to the independent database
mentioned earlier in the article. The crisis borne out of the response to the disaster has
still not subsided with economic uncertainty and struggles for sustenance still being
reported from both urban and rural areas, especially among the migrant workers.”

“Transparency in both the decision-making process and the disaster response has been
an important feature of some of the most successful strategies adopted worldwide in
handling of the pandemic. Free flow of information and accountability are of utmost
importance to ensure course-correction where desired objectives have not been
achieved, besides being prepared in case of re-emergence of the disease in the near
future. Yet, there has been a great degree of opacity in the government’s decision-
making processes in response to the pandemic. For instance, the establishment of PM
CARES fund despite the existence of several emergency funds meant for relief
disbursal during calamities, and the refusal of the government to include it within the
ambit of public auditing or the RTI Act 2005 has only strengthened the perception of
opacity.”

“India’s disaster management response has brought to light severe inadequacies and
ambiguities in the Disaster Management Framework, especially in dealing with a
unique crisis like the COVID-19 pandemic. The response itself has become a disaster
in many ways as India still struggles to arrest the spread of the disease.”

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