Look within

And not ape the disaster management laws of other nations

By Videh Upadhyay
Published: Tuesday 15 March 2005

Look within

-- In a nation where it took a Bhopal to enact an umbrella environment protection act, it is not surprising the tsunami devastation has precipitated moves for a national disaster management law. One still should not complain: wisdom in hindsight is any day better than no wisdom at all. However, the first response in this endeavour has been to look at the us, uk and Australian laws. And this is not at all heartening.

Law-making should begin by looking within -- as a matter of principle. It is wrong to presume that India does not have a legislative history on disaster management. There is a history and it has many lessons to offer. Learning and benefiting from those lessons should be an essential precondition for any jurisprudence on disaster management. In 2003, Gujarat and Bihar enacted disaster management legislations. Other states also have laws, some dating back to colonial times. These laws deal with a wide range of issues: land use planning, pre-empting large floods, compulsory evacuation of land in case of disasters, suitability of lands to construct flood works and remission and suspension of land revenue in case of agricultural calamity caused by disasters.

Ad-hoc responses It is also important to appreciate that while independent India has had a history of disasters, there is also a history of administrative responses to calamities. Typically, the administration responds to disasters in an ad-hoc manner, driven by government orders (gos) and office circulars. This tsunami's response was governed by about three-dozen gos. But these orders have significance: they provide critical insights into the way state agencies execute disaster management at the ground level. The hard learning from this soft law has to be an essential input into the national disaster management law.

Problems There are problems with the existing legal provisions pertaining to disaster management. Many leave ample scope for administrative discretion. Typical examples are the State Emergency Powers Evacuation and Requisition Acts : these list measures to be taken to deal with a calamity; but their execution is not mandatory. They are left to the discretion of district magistrates. Laws relating to speedy acquisition and requisition of land in the time of disasters are also couched in non-mandatory language.

So far only the states -- and not the Centre -- have come up with laws and administrative instructions to manage disasters Take floods, for instance. Only the states have been vested with exclusive authority to enact structural measures for flood control -- 'embankment' and 'drainage' are state subjects under the Constitution. So, different states have managed floods with their own preferred emphases. The states also have isolated provisions in various laws that could be utilised to deal with floods. But there is a need to integrate the disparate laws, that address a range of issues, for a unifying legal perspective. Nation and statewide disaster management acts envisaged post-tsunami are an opportunity to create such an all-encompassing framework.

Which list? There is also the question of where exactly should disaster management be placed in the Constitution. Should it be in the state list, the central list or the concurrent list? This author feels it should ideally be placed in the concurrent list, thereby empowering both the Centre and states to legislate.

Before aping other countries, we must realise that there do exist legal provisions impacting disaster management -- some of them are useful, while others are feeble. The efficacy of what exists and the need for new forms of legislative interventions has to come from a close historical assessment of disaster management in the country. Perhaps in those areas where the law needs to mature, more help from other countries' legislative experience can be usefully taken. A national disaster management law has to come from an inside-out shot at lawmaking!

Videh Upadhyay is advocate, Supreme Court, India and a founding partner of the New-Delhi based Enviro Legal Defence Firm 12jav.net12jav.net

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