And not ape the disaster management laws of other nations
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.
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.
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
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