Laws in Disaster Management

Anuj Kumar Vaksha

Role of law
In situations of Disasters

Pre - disasters

Law

Post Disasters

General, Institutional, Regulatory

Role of law (Pre-disaster)

Preventive

Endeavours for risk reduction

Examples

Hazard prevention particularly the manmade disasters Vulnerabilities minimization/ Capacity building Lays standards for disasters characterization Hazardous Waste Rules Hazardous Chemical Rules Bio-Medical Waste Management and Handling Rules 1998 Environment Protection Act 1986 Factories Act 1948 Nobody knows how the disaster is going to strike, but from our experiences and ingenuity it can certainly be contemplated what things necessarily invite disaster sooner or later. Law prohibits such things thereby pre-empts occurrence or recurrence of certain disasters.

Basis

Role of law

During disaster Administrative In a situations of extreme chaos, confusion, agony, scarcity which follow any disaster, the law endeavours to continue/ensure the rule of law in such situations.

Post disaster

Reactive Lays measures for relief and rehabilitation Strives to compensate the losses to the extent possible by measures like insurance, ex-gratia awards
Public Liability Insurance Act 1991 Bhopal Gas Leak Disaster (Processing of Claims) Act 1985

Examples

Role of Law

Institutional
Creates institutions and authorities at various levels of governance to enforce the mandate of law in pre, post and situations of disasters Example

Disaster Management Act 2005 The National Environment Tribunal Act 1995

General

Legislation creates enabling environment and institutional framework for thorough disaster management.

Disaster, Environmental jurisprudence & Constitution

Disasters Manmade, technological or natural

Human Losses Material, Social, Psychological, Human life

Articles 21 Constitution of India

Environmental Losses

Article 51A (g) Constitution of India

Article 21 Constitution of India

Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law.

Article 51A (g)

Fundamental duties It shall be duty of every citizen of India

(g) To protect and improve the natural environment

including forests, lakes, rivers and wild life and to

have compassion for living creatures

Landmarks in enviro-constitutional jurisprudence in India Wholesome environment : Fundamental Right

Every person enjoys the right to a wholesome environment, which is a facet

of the right to life guaranteed under

Article 21 of the Constitution of India.
Subhash Kumar v. State of Bihar AIR 1991 sc 420

Landmarks in enviro-constitutional jurisprudence in India Wholesome environment : Fundamental Right

Article 21 protects the right to life as a fundamental right. Enjoyment of life including the right to live with human dignity encompasses within its ambit, the protection and preservation of environment, ecological balance free from pollution of air and water, sanitation, without which life cannot be enjoyed. Any contra acts or actions which would cause environmental, ecological, air, water, pollution etc. should be regarded as amounting to violation of Article 21.

Virender Gaur v. State of Haryana 1995 (2) SCC 577

Landmarks in enviro-constitutional jurisprudence in India

Role of government agencies

There is constitutional imperative on the state government and the municipalities, not only to ensure and safegaurd proper environment but also an imperative duty to take adequate measures to promote, protect and improve both the man-made and natural environment.

Virender Gaur v. State of Haryana 1995 (2) SCC 577

Landmarks in enviro-constitutional jurisprudence in India

Role of government agencies

Enforcement agencies are under an obligation to strictly enforce environmental laws.

Indian Council for Enviro-Legal Action v. Union of India 1996 (5) SCC 281

Government agencies may not plead nonavailability of funds, insufficiency of staff other insufficiencies to justify the nonperformance of their obligations under the environmental laws
Dr. D.L. Wadhera v. Union of India AIR 1996 SC 2969

Landmarks in enviro-constitutional jurisprudence in India

Role of government agencies

Government development agencies charged with decision making ought to give due regard to ecological factors including (a) the environmental policy of the central and state government; (b) the sustainable development and utilization of natural resources; and the obligation of the present generation to preserve natural resources and pass on to future generations an environment as intact as the one we inherited from the previous generation

State of Himachal Pradesh v. Ganesh Wood Products

AIR 1996 SC 149

Landmarks in enviro-constitutional jurisprudence in India

Role of government agencies

The precautionary principle requires government authorities to anticipate, prevent and attack the causes of environmental pollution. This principle also imposes the onus of proof on the developer or industrialist to show that his or her action is environmentally benign
S. Jagannath v. Union of India AIR 1997 SC 811 (Shrimp Culture case)

Landmarks in enviro-constitutional jurisprudence in India

Role of government agencies

The power conferred under an environmental statute may be exercised only to advance environmental protection and not for a purpose that would defeat the object of the law.
Indian Council for Enviro-Legal Action v. Union of India 1996 (5) SCC 281 (CRZ Notification case)

Landmarks in enviro-constitutional jurisprudence in India

Role of government agencies

The state is the trustee of all natural resources which are by nature meant for public use and enjoyment. The public at large is the beneficiary of the sea-shore, running waters, air, forests and ecologically fragile lands. These resources cannot be converted into private ownership
M. C. Mehta v Kamal Nath 1997(1) SCC 388 (Span Motels case)

Landmarks in enviro-constitutional jurisprudence in India deterrence for the defaulters

Stringent action ought to be taken against contumacious defaulters and persons who carry on industrial or development activity for profit without regard to environmental laws.
Indian Council for Enviro-Legal Action v. Union of India AIR 1996 sc 1446 (Bichri case)

Landmarks in enviro-constitutional jurisprudence in India deterrence for the defaulters

The polluter pays principle which is the part of the basic environmental law of the land requires that a polluter bear the remedial or clean up costs as well as the amounts payable to compensate the victims of the pollution.
Indian Council for Enviro-Legal Action v. Union of India AIR 1996 sc 1446 (Bichri case)

Landmarks in enviro-constitutional jurisprudence in India deterrence for the defaulters

We are of the view that an enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and non-delegable duty to the community to ensure that no harm results to anyone on account on hazardous or inherently dangerous nature of the activity it has undertaken. .CONTD.

Landmarks in enviro-constitutional jurisprudence in India deterrence for the defaulters

Where an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to anyone on account of an accident in the operation of such hazardous or inherently dangerous activity the enterprise is stricly and absolutely liable to compensate all thiose who are affected by the accident and such liability is not subject to any of the exceptions

Shriram Gas Leak Case AIR 1987 SC 1086