Author: Avni Kritika V year of B.A.,LL.B(Hons) from Amity University, Lucknow Campus.
ABSTRACT
India has been traditionally affected by natural disasters due to its unique geographical distributions. Earthquakes, floods, cloud bursts, cyclone, and landslides have been the recent reasons for the disaster. Almost every year, India suffers from a massive loss to life, livelihood, assets and environment caused by natural disasters which is the result of the great setback in advancement and progress.
The policies and response mechanisms made for disaster management are time and again hindered by legal complications together with bureaucratic incomprehension. There is an urgent need for effective legal structures and long-lasting policies with institutional backing so that there can be some requisite conditions made for the effective and operative implementation of disaster risk management laws. There not much role of law in the management of disaster as it is limited to the rights of the disaster victim i.e., their relief, rescue and rehabilitation.
There is a certain law that is enforced but these laws are not well known by the victims and that is the case they are not able to demand their rights; not only this but there are certain governmental schemes and policies even both at the centre and state level for the times of disaster. Even in the implementation of these laws predominantly in the circumstance of natural vulnerabilities, the outlook is of aid and charity by the state. Relief in disasters is not perceived as a fundamental right and neither claimed by the victims in many states.
From Amarnath Yatra Tragedy in 1996 to Hurricane Amphan in West Bengal in 2020, there has been always a hue and cry for the rights but due to lack of awareness the claimant could come forth and as a result, the charity and aid have done by State and people becomes their only last resort.
The Disaster Management Act, 2005 has provided effective management of disasters and for the matters related to them. Disaster management has an important role in the country's policy framework in recent trends.
The researcher has tried to bring out the institutional and policy framework related to disaster laws and the objectives behind this. The legal and techno legal framework has also been considered taking into account the Indian Constitution, The Environment Protection Act, The Public Liability Insurance Act, National Environment Appellate Authority Act, and The Disaster Management Act. The paper will also discuss the role of State, District and Local Authorities at the time of such a crisis and the researcher has tried to give possible conclusions and suggestions to enhance the legal framework so that it is easily reached to grassroots level people and they are benefitted from such legislations.
Keywords Disaster, Law, Legislations, Rights, Victims.
INTRODUCTION
In the twenty-first century, climate change and disasters are rising as the severe challenge that has to be encountered by the world. For India, the geo-climate environments increase the fuel to the frequent climatic changes and henceforth natural disasters are the result of it. Latest predictions and critical analytical researches show that there is a rise in global temperatures, polar and glacial meltdown, the rise of water in sea level and other climate change brought environmental deprivation will escalate the extreme weather conditions, as a result, there will be a rise in societal vulnerabilities.
The Intergovernmental Panel on Climate Change (IPCC) circulars estimated that impacts at 2o Celsius are "catastrophic" for the underdeveloped and developing countries like India, likewise, news reports have also provided indications of how climate change has been affecting the nation. With the growth of an increasingly urbanized world population, the potential for natural and non-natural disasters resulting from geo-hazards and techno hazards is growing enormously.
Climate has at all times been interconnected with disasters, up to now, through climate unpredictability there has been the establishment of extreme weather conditions such as storms, cyclones, floods, heatwaves, droughts, windstorms etc., making it possible for the terrible loss of human lives, destruction to infrastructure and environs. Centre for Research on the Epidemiology of Disasters (CRED) categorizes natural disasters into hydro-meteorological disasters (floods, landslides, mudflows, avalanches, tidal waves, windstorms, cyclones, droughts, extreme temperatures, and complex disasters associated with drought) resulting from climatic variability and other climatic and meteorological causes, and geological disasters (earthquakes, volcanic eruptions and tsunamis).
Explaining the meaning of Climate change as an expression that is predominantly easy to comprehend, it is the modification in the climate of a country, area, or all over the sphere, and it is presumed it is caused by the activities of the human race either directly or indirectly.
Explaining Disaster, according to 'Disaster Management Act 2005' means a catastrophic, mishap, calamity on grave occurrences in any area, arising from natural or manmade causes or by accident on negligence which results in substantial loss life or human suffering or damage to and destruction of property on damage to or degradation of the environment and is of such a nature or magnitude as to be beyond the coping capacity of the community of the affected area.
Over the past few years, it has been evident that there has been increasing in the number of natural disasters taking place and this affects life at large and the reason behind such disasters has been overpopulation and urbanisation.
Consequences of such disasters have always been devastation which can be seen in any small or big natural disaster like that of Odisha cyclone named Fani in 2019 which was extremely severe as it caused damage of nearly 25,000 Crore whereas Assam flood caused damage of nearly 251 Crore. This relationship has made to show that whether a disaster lasts for a longer or shorter time, the devastation happens and that leads to loss of life and property. The disaster victims are always severely suffered in such happenings. However, what is distressing is the knowledge that these kinds of destruction and devastation are rising at an alarming rate.
Natural disasters have no bounds either politically, socially or economically and neither has it accounted anything into consideration as they affect both developing and developed nations. They are also cruel, and as such, the helpless and weak people are likely to suffer more when they are influenced by natural disasters. Those living in developing countries and particularly those individuals with inadequate means of living tend to be adversely affected. As the natural disaster is rising at an upsetting speed; hence affecting the vulnerable of the nation. Numerous regions are below the belt of vulnerability in India and therefore disaster management has been developed as the utmost priority in the country to protect the victims.
The Indian subcontinent is subjected to regular devastations and is one of the most disaster susceptible areas in the sphere. Approximately 56 million Indians are hit by disasters (natural and manmade) every single year. Floods, famines, hurricanes, earthquakes, landslides etc. are the chief natural disasters that are progressively more affecting India. Manmade disasters are another part that requires attention. Industrial/ biochemical disasters, fire, train; road calamities are common manmade disasters. It is an acknowledged fact that a lot of human sorrow and misery is due to disasters which can be lessened by taking timely action and precautionary actions. It is nowadays a recognized fact that natural disasters are Vis Major but losses accompanying them are acts of men. Damages from disasters can be lessened by well-functioning disaster management.
Disasters are often classified according to their speed onset (slow or sudden) or according to their cause (natural, manmade or complex).
It is essential to look into the disaster management system in India; management of the different disasters in the near past is an indication of the insufficient and ill-equipped disaster management system in India. To recommend a resolution for the contemporary difficulties it is required to recognize the numerous problems concerning disasters in India.
The following list has been compiled to demarcate the natural and man-made disasters as per the intensity.
Major Natural Disasters
Flood
Hurricane
Drought
Famine
Earthquake.
Minor Natural Disaster
Cold wave
Storms
Heat Waves
Mudslides.
Forest Fires.
Major Man-Made Disasters
Setting of fires
Epidemic
Deforestation
Cultivation Pollution
Chemical pollution
Wars.
Minor Man-Made Disasters
Accidents
Riots
Environment Pollution.
EXISTING DISASTER MANAGEMENT LAWS IN INDIA
The State Government is in complete responsibility for natural disaster management in the contemporary arrangement of disaster administration. The duty to rescue, relieve and rehabilitate is undertaken by State Government under the direct administration of the concerned nodal ministers. Nevertheless, the central government with its resources, physical and financial, does arrange for the needed help and aid to relief efforts. The role of central government understands in terms of supplementation of physical and economic means.
Despite that, at all the three tiers of government, there are different bodies and different role of the government to do some activities related to disaster management.
Following are the existing statutes and laws that are there for the disaster victims. Legal and techno legal structure has been discussed in brief underneath:
The Natural Disaster Management Act, 2005
The Disaster Management Act, 2005 is there to be responsible for an effective management authority at the National, State and District level. At National Level, it is the Ministry of Home Affairs that has a Natural disaster management division. For natural disaster management, there are nodal organisations that are independent bodies like the Institute of Disaster management. A management group called Crisis management group is set up by the government to advise, guide, supervise and co-ordinate by the central government to give provide relief measures in the affected areas. Also, an Inter-Ministerial Coordination Group has been set up for coordinating all activities of the state and district administration and other support departments.
At State Level, it is the relief and rehabilitation wing of the department of revenue that takes up the duty of care. There is even the crisis management committee under the supervision of the chief secretary and some other agencies are a part of it. There are relief commissioners in most of the states who have the responsibility of relief measures.
A disaster Management system has been set up in Uttarakhand and Maharashtra.
At the lowest District Level, the district collector heads the coordination and review committee; which take up the responsibility of relief and rescue operations.
The Act lays down institutional, legal, financial and coordination mechanisms at the National, State, District and Local levels.
The Environment Protection Act, 1986
The Indian Parliament enacted the Environment (Protection) Act 1986 to maintain and protect the environment from unregulated industrial or other activities; this happened soon after the Bhopal Gas Tragedy that the Government passed such a law. Under the Environment (Protection) Act, the Union Government has been given the responsibility to take all the actions for protecting and improving the quality of the environment and stopping, curbing and lessening the environmental pollution. It stops individuals carrying on any industry, operation or process from discharging or releasing any environmental pollutants in an excessive amount other than that of prescribed standards. The Environment (Protection) Act imposes obligations on persons handling any hazardous substance to follow prescribed procedure and act following prescribed safeguards.
The Public Liability Insurance Act, 1991
The Parliament enacted the Public Liability Insurance Act, 1991 to provide instant relief to the persons affected by accidents happening while handling hazardous substances by providing public liability insurance. The Act imposes on the person, who has control over handling any hazardous substance, the liability to give the relief specified in the Act to all the victims of an accident, which occurs while handling such substance. For that purpose, the Act imposes a duty on the part of the industrial units to take up insurance policies to compensate the victims in the event of industrial disasters. It would be the duty of every industry to take necessary insurance policies to discharge its liabilities. The Act also makes available for a mechanism that helps to invite claims from the victimised people in the course of disaster happened by any industry and to claim compensation and sharing of the amount.
The District Collector is as a consequence authorized to accept claim testimonials from the applicants and process the same and permit an award for the genuine compensation which the applicants are eligible to and direct the guarantor to pay the same. It also delivers for the establishment of a Calamity Relief Fund to make available compensation to victims. The owner of the industrial institution has to pay aid to the fund.
Consequently, nevertheless, in the context of man-made tragedies at the national level the Indian Parliament and the Union Government have started numerous legislative methods in the way of disaster management to safeguard the environment and the individuals by way of prevention, mitigation and aid and rehabilitation of the victims, these procedures are not sufficient to manage natural hazards. Catastrophes, whether it would be the consequence of a natural phenomenon or careless human activity, will at all times bring about long term concerns with far-reaching effect. India due to its atypical socio-climatic surroundings is more predisposed to disasters which may be called man-made disasters. Taking into account these issues the government has made definite to come up with a law, which would systematically cover the issues of disaster management and the present Disaster Management Act, 2005 to a certain extent has satisfied its objectives.
The National Environment Appellate Authority Act, 1997
This Act has been ratified to make available for the establishment of a National Environment Appellate Authority to listen to pleas to the constraint of areas in which any factories, operations or process or class of industries, shall not be carried out subject to certain safety measure under the Environment (Protection) Act. The Appellate Authority comprising of retired judicial officers have powers to hear appeals on orders granting environmental clearance in the parts in which any dangerous industries or practices shall not be carried out. Keeping in view the guiding principle in the Master Plan envisioned to reposition hazardous industries from the environmentally constrained or protected areas the Appellate Tribunal can make suitable orders for the same.
Constitutional Mandate for Right to Rehabilitation
The role of law in disaster management is unambiguous as concerned with the enforceable right of disaster victim to rescue, relief and rehabilitation. The constitutional apprehension for social integrity to all segments of the society can be done by providing amenities and opportunities to eradicate infirmities from which the poor are suffering and to protect the dignity of their person. The constitution proclaims that India is a welfare state, which is that state that encourages the wide-ranging welfare of individuals.
Especially after Maneka Gandhi v. Union of India, Courts have stretched out the range of Life and Personal Liberty under Art 21of the Indian Constitution. The Apex Court also interpreted the words procedure established by law to consist of both the procedural and substantive level necessities of fairness, justness and reasonableness. Article 21, which guarantees the protection of life and personal liberty, is the source of all significant human rights. Right to life being the supreme essential element of all human rights implies the right to live without the deleterious incursion of pollution, environmental degradation and ecological disparities.
It is understood that underneath the principle of Article 21 the state is obliged to provide sufficient relief and rehabilitation to the victims of the disaster. Dispute redress and protection of human rights need to be taken as an essential part of the disaster management implementation, after a calamity the enforceable right of the individuals to get relief and rehabilitation needs to be accepted.
NEXUS BETWEEN CLIMATE CHANGE AND NATURAL DISASTER
Natural disasters are looked upon as the definitive appearance of the damaging and harsh powers of nature. Across the globe, different nations have distinctive geographical terrain and thus this helps the disasters to show up their appearance in the worst manner. The inconsistency of the natural disaster plays a major role in climate change and climatological disaster thus has changed the natural scenario helping these types of disaster to be more often and intense. Natural disasters are themselves a hazard, therefore their exposure will be vulnerable.
Henceforth, if climate change accelerates the rate of recurrence and extent of natural hazards, it may lead to more recurrent and more severe adversities, subjected on way and scale of changes in exposure and resilience. There is now an indication that with growing temperatures, precipitation extremes exceeding a definite temperature may increase twice as fast as seasons in the region. Storm incidents over the nation have also amplified considerably for the duration of the past period. South-eastern states like that of Odisha, Andhra Pradesh, and Tamil Nadu, are in the cyclone-prone areas and recent catastrophes of Faini and Titli have destroyed majorly.
As the Himalayan meltdown, the areas have experienced a major rise in the water level of the most important river the Ganges and its tributaries accompanied by heavy downpour in recent times. Short time Torrential rains have amplified the frequency and intensity of landslide calamities in the mountainous areas and particularly in the Himalayan belt. On the other hand, the rivers flowing from Himalayan glaciers may shrink prominently on account of less rainfall.
The country has been encountered more frequent droughts in the near past. Due to declining precipitation and significant temperature rise, the whole northern area of the country is becoming drier. This area is reliant mainly on agriculture and deteriorating water accessibility in exterior channels will increase the groundwater withdrawal and hence reduction of the water table. Groundwater aquifers benefits in preserving pressure amongst lithospheric strata and diminishing aquifers may ask for a breakdown of these strata resultant in earthquakes and ground tremors. The nation has observed several earthquakes in recent periods and even though direct acknowledgement may not be reasonable, climate change gives the impression to have a substantial impression on it. Away from each other from these natural agents influencing climate and by this means natural disasters, industrialization, mining, urbanisation and deforestation too have a noteworthy and influential impact on the climate structures of the country.
ENVIRONMENTAL MANAGEMENT FOR DISASTER REDUCTION
After the exceptional tidal waves that ravaged the past few decades, terrible human tragedy environmental apprehensions from extensive water pollution to the elimination of remains and leftover on an enormous scale have remained all too obvious. While the strongest earthquake in years and the shattering tsunamis that followed could have been less disastrous if cautionary structures had been in place, it is progressively clearer that the adverse effects of this, and other kinds of natural calamities, could have been and can be decreased not only by the speed and proficiency of our relief efforts but also by continuing the suitable environmental infrastructure.
Having maintenance of our natural resources, and handling them judiciously, not only guarantees that forthcoming age brackets will find healthier living environments, as it decreases the menaces that natural threats pose to people in the present day.
United Nations Environment Programme-UN Environment (UNEP)’s objective is to strengthen the significance of environmental concerns in disaster management, and to encourage sound management of natural resources as an instrument to avoid catastrophes or minimize their impressions on the general public, their home environment and source of revenue.
Population progression, industrialization and environmental exploitation have opened up a Pandora’s Box of catastrophist throughout the globe. From enormous industrial calamities like Bhopal Gas Tragedy in 1984 to the extreme weather that assaulted people of Churu in the northern state of Rajasthan from 50.8 degree Celsius, the world is progressively more responsive to natural and manmade catastrophes. The problem is how to stop these disasters, and if they should still occur, how to counter them. We must think about the "environment” at every single stage of disaster management, be it in preparing, preventing, mitigating or reacting.
In the present day, we are wretchedly observing an increasing number of shattering storms, tornadoes, droughts and floods, from corner to corner of the globe which as a consequence of environmental change which is set to turn out to be more common and ferocious.
SUGGESTIONS
To reorganise the National Policy on Disaster Management by providing some of the precise methodology connecting to prevention, mitigation and preparedness in the pre-disaster phase with the other economic influence. These suggestions are as follows:
Suitable modifications in the statutory and monitoring mechanism and to reinforce the enforcement instruments at different levels.
Conducting inspections of the disaster predisposed areas and formulate suitable strategies with appropriate enactment.
The recommendations for the setting up of a National scientific and Technical Committee at the Union level to support better disaster management.
The creation of consciousness is straight away compulsory not only for the individuals who have located in the disaster-prone area but also amongst policymakers, decision-makers, organisations, authorities, financial institutes, NGOs and voluntary societies.
Making obligatory, the use of disaster-resistant codes and procedures associated with disaster-resistant construction in the houses and buildings in all segments of the society by law and over inducements and impediments.
To formulate the detailed database of tragedies and injuries caused to people, possessions, infrastructure and financial losses, to safeguard appropriate assessed funding mechanism.
Creating awareness by enhanced means, using mass media, school education and networks. Capacity-building should be there at local and provincial levels for improved Disaster Management.
To build perfect institutional instrument at national, state and sub-state stages to advise and aid the prevailing disaster management instruments for the good formulation of prevention, modification and preparation plans.
CONCLUSION
The existing machinery is insufficient to provide an effective range of control to all the catastrophe managing activities in the nation. The governmental attitude on disaster strategy, firming up of the administration and the basic structure for administration itself is faulty. The non-appearance of an integrated national policy has led to overlooking some of the important features of disaster management. The disaster management system should be able to lessen, regulate and curb the effects of a disaster. The administration should be well-appointed to lead the disaster management activities without being left handicapped.
Disasters are life-threatening environmental happenings that unsympathetically disturb all parts of the sphere. As helplessness to disasters is inevitable, better attention has to be focussed on eliminating risks. Disasters were viewed as isolated events and were responded to by governments along with relief organisations deprived of taking into consideration the social and economic causes and implications of these events.
Lessening of disaster is of utmost importance at the community level where definite needs are met. Generating the awareness about the local vulnerabilities and safeguarding the involvement of local societies in lessening of disaster as well as readiness are demonstrating to be more operational. Physical, social and economic risks can be sufficiently measured and managed at the municipal level and this consideration has given rise to a more focused community-based approach. Most of the disaster-prone areas are nearly rural areas facing difficulties like insufficient resources to contact the ambulance facilities, Police station and appropriate NGO’s, media houses to stop the happening or lessening the effects of the calamity. And there is no predictable sum of fund for disaster organization initiation and operational proceeding there was no sufficient family disaster supply kit, people were not skilled in first aid. Government and NGO supported in decreasing the risk but insufficient in reaching the people for the reason that of low-level education, not as much of awareness.
Formation of awareness is immediately desirable between policymakers, decision-makers, organisations, experts, financial establishments, NGOs and voluntary groups. Suitable changes in the statutory and regulatory mechanism, along with firming of the application of the procedures at several levels, thus, making it compulsory, the use of disaster-resistant programmes and recommendations associated with disaster-resistant construction in the houses and buildings in all segment of society by law and the high powered commission on disaster management has to made to generate mechanism as an immediate quick response mechanism.
Disasters have become increasingly more frequent and violent, requiring coordinated international responses more than ever. The international community faces vital challenges at each the inter-international and international to-domestic levels of disaster response. The coordinated interaction of international as well as the domestic legal systems additionally needs careful thought.
The need of the hour is to push people to centre human rights-based mostly disaster risk reduction methods. The vulnerability analysis in disaster management shall take into account human rights problems among their social, economic and cultural criteria, disaster management deals with the response to human misery and losses of people's livelihoods and assets whereas disaster risk management is bothered with mitigating or preventing such losses, each process tends to be rather a partiality. The response towards the objectives of human rights-based mostly perspective throughout times of disaster. No person shall be deprived of his life or personal liberty except according to the procedure established by law.
The most crucial need nowadays is to encourage enhanced economic growth together with social and gender parity and ecological reliability. Thus, sustainable development has quite a few dimensions, to be exact, environmental, economic and social. As luck would have it, we have a democratic structure of governance, starting with villages. For that reason, we should encourage more and more community participation at the grassroots level, such as organising squads of community hunger units and community climate risk supervisors. This will then aid us to assimilate environmental and development apprehensions with disaster management put into practice in a mutually strengthening manner. An imperative prerequisite for disaster risk management in cultivation is for the safeguarding of the local agricultural biodiversity. Biodiversity management boards at the local level, as provided under the National Biodiversity Act that can help to promote an epoch of biodiversity pleasure coming out from the conversion of local resources of biodiversity into jobs and income in an environmentally and socially ecological manner.