In the wake of the exigent battle with COVID-19, the Government of India is using its best and the only weapon from its arsenal, the Disaster Management Act, 2005. This is for the first time this Act is being used against a pan India biological disaster. The perplexing question for some is that why the Government has not used the constitutional mechanism of emergency to tackle this catastrophic situation. This article will analyse whether the implementation of the Disaster Management Act,2005 is constitutionally valid? Moreover, is it effective to tackle the situation?
Why not Emergency?
Much speculation has been made about the question that why the government has not implemented an emergency. The conjecture that the government has not used emergency provisions because of factors like amicable support of states or it could have led to reconvening of the parliament or any other political agendas is false. The Government has not used it because it could not.
There are provisions for declaration of three types of emergencies in the Indian Constitution. After the 44th Constitutional Amendment Act emergency can be imposed under article 352 on grounds of threat to the security of India by “war or external aggression or armed rebellion”. Article 356 which makes provisions for imposition of emergency for the breakdown of constitutional machinery in any state and states that emergency can be imposed when “the Government of the State cannot be carried on in accordance with the provisions of this Constitution” and article 360 makes provision for emergency on basis of economical breakdown and says that emergency can be imposed when “the financial stability or credit of India or of any part of the territory thereof is threatened”
The pandemic COVID-19, though a global health emergency, does not fulfil the credentials of a Constitutional emergency. It is neither a war nor a rebellion or external aggression. It is not a threat to our constitutional machinery and even though COVID-19 is hampering the nation`s economic activity, it is not a financial emergency as well. So as per the current interpretation of the emergency provisions, the Government couldn’t impose emergency.
Is the implementation of the Disaster Management Act, 2005 to tackle Covid-19 constitutionally valid?
The Disaster Management Act,2005 was formulated as an aftermath of the 2004 Gujrat Earthquake when the Government of India realised the need for a pan India Act to combat a disaster of this magnitude. This act provides a mechanism to not only to manage the disaster but also to mitigate the losses. It is the first Act in its league to provide a comprehensive mechanism to tackle disasters from the Union to the district level.
The first criteria to be analysed is that what qualifies as disaster under the Act. According to the Act 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.”
On analysis of this section, it can be seen that the Act has an open-ended definition of what constitutes a disaster which can easily encompass Covid-19. But one feature that stands out is that there should be a substantial loss of life which was not the case when the Act was implemented to tackle Covid-19. This is not an infirmity to implement the Act in the present situation as the Act provides disaster management can be undertaken for ‘prevention of danger or threat of any disaster.’
Therefore, the situation created by the disastrous disease comes under the ambit of the Act. Entry 29 of the concurrent list states that “Prevention of the extension from one State to another of infectious or contagious diseases or pests affecting men, animals or plants.”Also, the state is empowered to deal with matters related to public order and public health under Entry 1 and Entry 6 of the state list respectively. So, the implementation of the Act is constitutionally valid for Union and State.
Is the Act well equipped to deal with this disaster?
We will analyse whether the Act provides for a viable structure and powers to the Center to deal with the disaster. The Act provides for a National Disaster Management Authority (NDMA) which consists of Prime Minister as its chairperson along with nine other persons which are nominated by the chairperson. Similar authority has to be established at the state level known as State Disaster Management Authority(SDMA) headed by respective Chief Minister of the state along with nine other members nominated by him. The Act also provides for a District Disaster Management Authority (DDMA) at the district level with the District Magistrate as its head.
It is the responsibility of the NDMA to develop, approve the disaster management policies, plans and guidelines prepared by various government departments of India to ensure timely and efficient response to the disaster.
A unique but effective emergency power is endowed upon the chairpersons of all three Authorities is that they can exercise all the powers of the Authority subject to ex-post-facto ratification by the Authorities at their respective levels.
The Act provides some special powers to the centre. Firstly, the Act empowers the centre to coordinate with all government organisation (State and Union), non-governmental organisation, international organisation and government of foreign countries, to ensure integration of measures and response and allocation of funds for capacity building, mitigation and preparedness by various Ministries and Department of the Government of India and any other measures which it deems fit for implementation of the provision of the act. It is under the latter provision that measures such as lockdown and social distancing were bought into effect. The Government can also deploy army, navy and air force under this act.
Secondly, this act also empowers the central government to issue directions to a different department of ministries of the Union and state government and executive employees and they are bound to comply with the directions. Though no penal provisions are provided under the Act to punish those who do not comply with these directions.
Thirdly if it appears to the Central, State or district authority that any resources, premises, services or vehicle is required for a prompt response, rescue operations or transportation they may acquire them by issuing an order in writing.
Though the Act provides for a comprehensive plan but still misses out on some important aspects. The Act solely bases the appointment of members of NDMA and SDMA on the nominating powers of the Chairperson and does not set any basic qualifications for the post. The Act overlooks the important role which can be played by the local communities in tackling the disaster more efficiently. The New Zealand CDEM Act, 2002 enacted to counter emergencies made provisions for community groups involvement which DMA,2005 lacks.
This article concludes that emergency provisions could not have been implemented by the Government and implementation of the Disaster Management Act, 2005 is constitutionally valid and covers COVID-19 under its ambit. This like any other law is not perfect and have its shortcomings and scope for improvements but a viable solution of the disaster.
 INDIA CONST. art.352
 INDIA CONST art 352 cl.1
 INDIA CONST art 356 cl 1
 INDIA CONST art 360 cl 1
 C.N. Ray, Disaster Management Act ,2005, Vol. 41 No. 35 Economic and Political Weekly, 3760, 3760, (Sep 2, 2006)
 Disaster Management Act,2005, Sec. 2 Cl.d
 Disaster Management Act,2005, Sec 2 Cl.e Sub Cl.i
 INDIA CONST. Schedule VII Concurrent list Entry 29
 INDIA CONST. Schedule VII State list Entry 1 & 6
Disaster Management Act,2005, Sec. 3
 Disaster Management Act,2005, Sec. 14
 Disaster Management Act,2005, Sec. 25
 Disaster Management Act,2005, Sec. 6(3), 18 (3) &26(2)
 Disaster Management Act,2005 Sec. 35 2(a) & (h)
 Disaster Management Act,2005 Sec 35 2 (b),(c) & (d)
 Disaster Management Act,2005 Sec 35 2 (i)
 Disaster Management Act,2005 Sec 35 2 (f)
 Disaster Management Act,2005 Sec.62
 Subhradipta Sarkar and Archana Sarma, Disaster Management Act, 2005: A Disaster in Waiting? Vol. 41, No. 35, Economic and Political Weekly, 3760,3762, (Sep. 2-8, 2006)
ABOUT THE AUTHOR
Aakriti Srivastava is a first-year student of BA LLB (Hons) at Hidayatullah National Law University. She is interested in Constitutional Law, International Law, and Public Policy.
Shivam Srivastava is a second-year student of Bharti Vidyapeeth, New Law College, Pune. He has an interest in Judicial Services, Constitutional Law, and Arbitration.