Posted on: August 18, 2020 Posted by: Drishti Israni Comments: 0
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Description- The following article deals with the Disaster Management Act, 2005, and its provisions that are relevant in dealing with the current pandemic. It talks about how the Courts have given directions based upon these provisions in order to make them more efficient in the current pandemic.

The commencement of the 21st century was filled with calamities and woes for India in the shape of the Gujarat Earthquake in 2001 and the Indian Ocean Tsunami in 2004. They left behind them a sorry trail of massive death and destruction. Consequently, efforts were made towards the issue of disaster management by the Indian government.

‘An act to provide for the effective management of disasters’- The Disaster Management Act came into force on 23rd December, 2005. A comprehensive national legal framework for disaster management with dedicated agencies like the NDMA (National Disaster Management Authority), SDMAs (State Disaster Management Authorities) and DDMAs (District Disaster Management Authorities) were established under the Disaster Management Act, 2005. It conferred on them extensive powers to exercise during disaster emergencies, with the Prime Minister of India as the ex-officio chairperson. Although the Constitution of India does not define the term, “disaster” the legal basis of the Disaster Management Act, is Entry 23 of the Concurrent List of the Constitution “Social security and social insurance”. Entry 29 of the Concurrent List “Prevention of the extension from one State to another of infectious or contagious diseases or pests affecting men, animals or plants,” can also be used for specific law making.

Central Government and NDMA have extensive powers bestowed upon them by the DM Act. 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) etc.).  In order to achieve all these, the Prime Minister can exercise all powers of NDMA (S 6(3)). This ensures that there is adequate political and constitutional heft behind the decisions made. To alleviate social sufferings, NDMA/SDMA are mandated to provide ‘minimum standard of relief’ to disaster affected persons (Ss 12 and 19), including relief in repayment of loans or grant of fresh loans on concessional terms (S. 13).

According to the Act, under 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. The Corona Virus Disease, 2019 (COVID-19), being a grave occurrence of a pandemic and consequently a calamity, arising from natural or manmade cause, which has already resulted in substantial loss of life and human suffering, and being of such a nature and magnitude that it is beyond the coping capacity of the community of the affected area, the disease will fall within the ambit of “disaster” as defined under Section 2(d).

COVID-19 is the first biological disaster being dealt by India. The present national lockdown was imposed under DM Act as per Order dated 24-03-2020 of NDMA ‘to take measures for ensuring social distancing so as to prevent the spread of COVID 19’ (S 6(2) (i)). Additional guidelines were issued on the same day by the Ministry of Home Affairs, being the Ministry having administrative control of disaster management (S. 10(2) (l)).

In light of this scenario, the measures taken by the government, under the Disaster Management Act, and multiple decisions made by the Supreme Court and High Court in order to make the provisions just, fair and transparent seem to essentially be beneficial.

The Supreme Court, in an order dated 31st March, 2020, dealt with the rampant fake news relating to the pandemic, circulating around the country. The Union of India had sought direction from the Hon’ble Court to prevent fake and inaccurate reporting whether intended or not, either by electronic print or social medial which will cause panic in the society. The Court, noting that the then recent migrant labour panic (resulting in several deaths) had been caused due to the spread of fake news that the lockdown would continue for the next three months, said that “It is therefore not possible for us to overlook this menace of fake news either by electronic, print or social media.”

The Court emphasized upon Section 54 of the Disaster Management Act, which provides for punishment to a person who makes or circulates a false alarm or warning as to disaster or its severity or magnitude, leading to panic. Such person shall be punished with imprisonment which may extend to one year or with fine.

It further said, “We trust and expect that all concerned viz., State Governments, Public Authorities and Citizens of this country will faithfully comply with the directives, advisories and orders issued by the Union of India in letter and spirit in the interest of public safety. In particular, we expect the Media (print, electronic or social) to maintain a strong sense of responsibility and ensure that unverified news capable of causing panic is not disseminated. A daily bulletin by the Government of India through all media avenues including social media and forums to clear the doubts of people would be made active within a period of 24 hours as submitted by the Solicitor General of India. We do not intend to interfere with the free discussion about the pandemic, but direct the media refer to and publish the official version about the developments.”

Further, a special Division Bench of the High Court of Karnataka, comprising Chief Justice Abhay Shreeniwas Oka and Justice Alok Aradhe, on 16th July 2020 said it was imperative that the State government to invoked provisions of the Disaster Management (DM) Act in order to deal with complaints of denial of admission of COVID-19 patients at private hospitals and to ensure that penal actions would be taken against them. The government had, on July 15, issued a circular to private hospitals to display at the reception counter on the number of categories of beds for COVID-19 patients. The court said the government should modify this circular to direct the hospitals to display a specific telephone number to lodge complaints in case of denial of admission.

The Court pointed out that Section 20(f) of the DM Act empowered the State Executive Committee of the State Disaster Management Authority to ensure that persons in charge of private hospitals made available the relevant resources for emergency response, rescue and relief of the community. If the hospitals fail to adhere to such directions issued under the DM Act, the State can initiate action, including penal action, against the persons in charge, the court observed while hearing PILs on lapses in Covid-19 health managements.

India’s large population undoubtedly poses a major challenge while dealing with any disaster, but it becomes an even bigger hurdle when faced with a pandemic such as COVID-19. However, a sizeable improvement can be made in the management and administration by focusing on a few crucial factors.

Firstly, this type of biological disaster, one which is of a national magnitude necessitates a close administrative and political coordination, led by Centre and followed by State governments, Disaster Management Authorities, and other stakeholders. In the true spirit of DM Act and federal structure of the country, national and state political and administrative agencies should be willing to effectively collaborate and communicate with each other.

Secondly, issues like movement of migrant labourers, availability of food, arranging livelihoods to daily wage workers, relief camps, entitlement of statutory minimum relief, etc. that directly affect millions in the country call for special attention. Incidentally, the ‘Report of the Task Force to review DM Act’ in 2013 suggested that the present structure of various authorities under the DM Act is not conducive for effectively carrying out the tasks it has been mandated to perform.

Thirdly, in such trying times, constitutional courts must play its role efficiently. Disapproval and dissatisfaction regarding the plight of migrants, ineffective medical aid, and lack of safety measures are arising throughout the country. Pertinently, under Section 71, only the Supreme Court and High Courts can entertain suits in relation to this Act. Thus, it is absolutely necessary that they register PILs and closely monitor the implementation of DM Act, ensure rule of law and protection of human rights as guaranteed under the Constitution of India. The role of law in disaster management is concerned primarily with disaster victims and their right to rescue and relief. The Constitution declares that India is a Welfare State, which means that the State is required to promote the general welfare of its citizens in every way it can. Under the present COVID-19 scenario, it is imperative to integrate constitutional right to life of citizens, with other legal tools available under disaster management laws. A right-based approach towards victims cannot wait till they approach the courts of law; the courts have to be proactive.

Lastly, the efforts made by the government and health officials will be in vain if the people of India don’t cooperate with the regulations put forward. In these trying times, it is crucial that the citizens of India come together, abide by all the rules, and help people less privileged than them in any way they can. This is the only way for India to emerge victorious in this war against Covid-19.

Drishti Israni
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First year law student pursuing BLS-LLB from Government Law College, Mumbai.

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